08/9/2013

Cause of Action Sues TIGTA over Release of Taxpayer Info

Cause of Action filed a lawsuit against the Treasury Inspector General for Tax Administration (TIGTA) for potentially violating the Freedom of Information Act (FOIA).

TIGTA told Cause of Action in March of this year, in response to a FOIA request, that it could “neither confirm nor deny the existence of records” of communication between the White House and IRS concerning taxpayer information, particularly interactions that were not made pursuant to 6103(g) of the tax code, which authorizes the President to request any individual’s tax return information from the IRS.

Yet, the media reported that TIGTA sent a letter to Senator Charles Grassley July 3, 2013, acknowledging eight instances involving potential unauthorized access or disclosure of tax records belonging to political donors or candidates since 2006.

By revealing to Senator Grassley the existence of these communications, TIGTA has potentially violated FOIA with Cause of Action, therefore we are filing a lawsuit against TIGTA in the U.S. District Court for the District of Columbia.

ECF No. 1_Complaint

ECF No. 1-1_Exhibits 1-10 to Complaint

ECF No. 1-2_Civil Cover Sheet

ECF No. 1-3_Summons

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08/9/2013

Federalist Society Teleforum Update on FOIA

FOIA Update – Podcast

Administrative Law & Regulation Practice Group Podcast

July 29, 2013

Daniel Z. Epstein, Kip Evan Steinberg, Anne L. Weismann, Margaret D. Stock, Dean A. Reuter

To listen, please right click on the audio file you wish to hear and then select “Save Link As…” or “Save Target As…” After you save the audio file to your computer, you can then listen to it in your audio player of choice.

FOIA Update – MP3
Running Time: 00:59:24

FOIA Update The Freedom of Information Act has been the subject of several recent developments, each of which raise interesting questions. On April 2, 2013, the U.S. Court of Appeals for the D.C. Circuit ruled in Citizens for Responsibility and Ethics in Washington v. FEC that an agency FOIA determination must include disclosure of the relevant time period and scope of the documents it will produce as well as exemptions claimed for any withheld documents. Will agencies now refuse to disclose the scope of documents and exemptions unless and until a FOIA requester brings a lawsuit? If so, does the decision really enhance transparency? In McBurney et al v. Young, the Supreme Court held that the Virginia Freedom of Information Act (FOIA) grants only citizens of Virginia the right to access the state of Virginia’s public records. Does McBurney harm transparency? On April 15, 2009, Gregory Craig, Counsel to the President, sent a memorandum to all executive department and agency general counsels, concerning the need to consult the White House regarding FOIA, GAO, congressional and judicial subpoena requests concerning “white house equities”. To what extent does this memo conflict with the current Administration’s policy on FOIA?

Featuring:

Mr. Daniel Epstein, Executive Director, Cause of Action
Mr. Kip Steinberg, Principal, Law Office of Kip Evan Steinberg
Ms. Anne L. Weismann, Chief Counsel, Citizens for Responsibility and Ethics in Washington
Moderator: Ms. Margaret Stock, Counsel to the Firm, Cascadia Cross-Border Law Group
Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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07/31/2013

FOIA Follies: HUD Flags Sensitive Freedom of Information Act Requests for Extra Scrutiny; Political Appointees Involved

Field offices of the Department of Housing and Urban Development (HUD) may not release records in response to FOIA requests deemed “sensitive” without obtaining approval from three HUD offices, according to a policy document obtained by Cause of Action from HUD’s Office of Inspector General.

A “sensitive” FOIA request is defined by the policy document as one that involves any of the following:

National significance, serious injury, or loss of life;
Information that could subject HUD to substantial litigation;
Current or former senior HUD management officials; or
Questions about HUD’s policies or the performance of departmental responsibilities.

The policy document, which is labeled “current as of April 7, 2008” and confirmed by HUD Public Affairs as still in effect, provides that any field office receiving such a request must notify its “Regional Director” and “Regional Field FOIA Liaison,” as well as “the Headquarters Division in the Office of Litigation.” If a sensitive request is submitted by the media, the “Regional Public Affairs Officer” also must be notified.

After the above offices are notified, the field office handling the request must prepare a proposed response and obtain the “concurrence” of the Headquarters FOIA Division of the Office of Litigation, the Regional Director’s Office, and the “head of the relevant program office in Headquarters.” If any of these offices disagree with the proposed response, the “Field FOIA Liaison must arrange a conference call with the FOIA division in Headquarters and the office(s) not approving of the response in order to resolve the outstanding issues and arrive at a consensus as to the appropriate response to the sensitive FOIA request.”

Notably, HUD Regional Directors and at least eight of twenty-two heads of HUD Program Offices, such as the General Counsel and Public and Indian Housing offices, are political appointees.

HUD’s policy concerning sensitive FOIA requests was initially revealed by the HUD IG to Congress on September 29, 2010 in response to an inquiry concerning the politicization of FOIA. Neither the IG nor HUD has proactively disclosed this policy document to the public, nor is it referenced in HUD’s publicly available FOIA material.** Perhaps worst of all, the IG’s report to Congress downplayed the policy’s significance. Despite the fact that HUD’s FOIA policy allows political appointees to weigh in on sensitive requests, the IG accepted the agency’s assertion that “political appointees have a limited role in request reviews and no role in the decision-making regarding the documents to be released to the requester.”

HUD’s FOIA policy is similar to the secret policies that we uncovered at the Department of Defense and the Department of the Treasury, and its impact is equally harmful. Specifically, it usurps the authority of career FOIA professionals, delays and/or prevents the release of requested records, and further erodes the public’s trust in government.

**HUD’s policy document for sensitive requests includes a URL and is dated “9/16/2010,” but that link does not work. Nor were we able to locate the document on the HUD website or via the “Wayback Machine” or Google.

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07/18/2013

The Hill: Dan Epstein: Who should be holding whom accountable?

Who should be holding whom accountable?

By Dan Epstein July 12, 2013

Inspectors General, who hold federal agencies accountable by conducting audits and, when needed, investigating alleged misconduct, are in place to provide oversight over how taxpayer funded federal agencies are operating. But what happens if the inspectors are allegedly conducting the misconduct?

A case in point is the recent investigation involving Department of Homeland Security (DHS) DeputyInspector General Charles Edwards and allegations of his misconduct and abuse. Senators McCaskill and Johnson share similar concerns to those of Cause of Action that have been brought forward by insiders at DHS. These concerns range from wasteful spending to the destruction of federal records, which is a criminal offense. We have already begun releasing documents we have obtained and are committed to exposing the truth about Edwards and his office.

But everyday Americans aren’t always afforded the time and resources to uncover the facts about government employees such as Edwards. That’s why, as a government watchdog group, Cause of Action is committed to exposing the overreach and cronyism fueling the federal government’s waste, fraud, and abuse of taxpayer dollars. As a result of our own investigation and information from insiders familiar with the DHS OIG office, Cause of Action sent a letter to President Obama on July 1 requesting that the President remove Edwards from his position. Edwards has failed to honestly and appropriately conduct investigations, manage subordinates, and has potentially misused public resources.

Cause of Action exposes these types of government accountability issues because Americans have the right to know how their government spends their hard earned money. We are rooted in the belief that regardless of party affiliation, we all deserve an efficient, effective government that protects our best interests rather than an ulterior political or personal agenda. Cause of Action concentrates on the decisions and rule making that may go unchecked at federal agencies.

Our staff of investigators, lawyers, and communications professionals frequently uses Freedom of Information Act (FOIA) requests to shed light on otherwise opaque facets of the federal government. We also seek to utilize valid tips from government employees who have noticed the misuse of taxpayer resources.

Our recent accountability work included a report on a Centers for Disease Control and Prevention’s (CDC) grant program revealing seven grant recipients who allegedly used federal funds to illegally lobby for tobacco taxes, clean air ordinances, and bans on sugar-sweetened drinks.

Our work doesn’t stop at exposing misuses of power; we fight to hold officials accountable through litigation and public education. Our litigation and investigations are tactical, covering a spectrum of issues and targets that are part of our greater mission to educate the public on how the government exercises its unchecked power.

By employing the checks and balances our government provides, whether through the courts or through Congressional investigations, our aim is to bring real public change through our investigations and litigation. We remain committed to shedding light on the discretionary power of unelected officials who spend our dollars and regulate our sources of livelihood.

Epstein is executive director of Cause of Action, a non-profit, nonpartisan government accountability organization.

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07/18/2013

FOIA Requesters Misled by Military to Waive Appeal Rights

UPDATE: We added clarification that our numbers concerning SOCOM’s FOIA appeals were taken from FOIA.gov

At least two military offices have been found to use a puzzling FOIA request form that may be an attempt to get requesters to give up their rights to appeal FOIA decisions.

The request forms, which are included below, appear on the FOIA web sites of the U.S. Army Special Operations Command (SOCOM) and the U.S. Navy’s Space and Naval Warfare Systems Command (SPAWAR). In both forms, the offices ask requesters to agree to accept “a releasable copy” of the requested records; however, they fail to expressly inform requesters that electing this option may legally prevent them from appealing if the agency withholds any records.

If requesters do not agree in advance to accept “releasable” records, the forms indicate that their request will be “referred to the appropriate reviewing authority for a final review and release determination.” This is precisely the procedure that the Department of Defense’s FOIA regulations already require. Specifically, all Department of Defense FOIA requests must be reviewed by a designated “Initial Denial Authority,” and all decisions to withhold requested records must be explained in sufficient detail so as to allow requesters to decide whether to appeal.

Making matters worse, SOCOM’s version of the FOIA request form implies that the referral procedure described above will dramatically increase the time needed to process the request, noting that “it could take a year” for a decision — essentially coercing the FOIA requester to select the “releasable” records option if they want to receive the production in a timely manner. As a result SOCOM’s form has effectively minimized FOIA appeals. During fiscal years 2008 to 2012, SOCOM adjudicated 933 FOIA requests, yet it received zero administrative appeals according to FOIA.gov. Do the zero administrative appeals accurately reflect that in fact there were no appeals by requesters during this four year period regardless of whether they accepted the “releasable” records option, or are these statistics the result of virtually all 933 FOIA requesters abdicating their rights to appeal?

Notably, these forms do not conform to the FOIA request template recommended by the Department of Defense’s main FOIA office. Nor are they even consistent with sample request letters provided by the FOIA offices of the Department of the Navy or the Department of the Army. In the words of Victor Hugo, no army can withstand the strength of an idea whose time has come. It is time for these forms to go.

SOCOM FOIA Request Form

SPAWAR FOIA Request Form

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07/9/2013

Secret Pentagon policy may delay responses to Freedom of Information Act requests

Department of Defense FOIA offices are prohibited from responding to “significant” FOIA requests having “departmental level interest” without approval from the Pentagon, according to a policy document obtained by Cause of Action from the DoD’s Inspector General.

A “significant” request is defined by the policy document as one where, in the judgment of a FOIA office, “the subject matter of the released documents may generate media interest and/or may be of interest or potential interest to DoD senior leadership.” This can include requests regarding “the current administration (including request for information on Senator Obama) previous administrations, and current or previous DoD leadership.”

The policy document further provides that if a “significant” request generates “departmental level interest,” the DoD FOIA office handling the request must forward its proposed FOIA response and all responsive records for departmental level clearance. Departmental level clearance is done at the DoD Freedom of Information Policy Office (DFOIPO) which is responsible for the formulation and implementation of FOIA policy guidance for DoD. The office was created in 2006 after President Bush signed an Executive Order aimed at improving the FOIA process, though the policy document in question was drafted only after President Obama took office.

The Pentagon’s FOIA review policy was initially revealed by the IG to Congress in 2010 in response to an inquiry concerning the politicization of FOIA. The IG did not comment on this policy or on DoD’s FOIA practices; it merely forwarded documents to Congress. Notably, neither the IG nor the Pentagon has proactively disclosed any of this information to the public.

This secrecy is especially troubling with respect to DFOIPO in light of its mission. Not only is this policy document omitted from a long list of “FOIA Policy Guidance” on DFOIPO’s Web site, but none of DFOIPO’s other publicly available FOIA material even mention this Department-wide policy. Those documents include DoD’s “Freedom of Information Act Handbook,” its annual FOIA reports to the Department of Justice, as well as a bi-annual newsletter “DoD FOIA News.” This is hardly the stuff of which transparent administrations are made, let alone one that claims to be the most transparent in history.