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01/4/2013

A new year’s resolution for the federal government

In a recent Washington Examiner article, Executive Editor Mark Tapscott asked leading advocates for government transparency for their thoughts on what should be the government’s top transparency priorities for 2013. Cause of Action’s Executive Director Dan Epstein was featured as one of the “Nine people who know how to make government work better, more honestly.” Dan laid out five needed changes in the federal government that would yield greater accountability and transparency. One area he touched on is Freedom of Information Act (FOIA) requests.  In addition to Dan’s suggestion of a “Uniform database of FOIA requests and processing, following current online tracking used by the Department of Labor and the FBI,” we want to offer some practical ways agencies can and should be improving their FOIA approach.

For those of us who believe in an honest, transparent government, 2012 was a disappointing year. In January 2009, President Obama submitted a memorandum for heads of Executive Branch agencies stating, “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.”

Despite the administration’s self-proclaimed commitment to openness, the responses to FOIA requests and lack of available data highlight a lack of follow-through from numerous agencies.

The Cato Institute graded the federal government’s data publication practices and found that, “the administration and the Congress both receive fairly low marks under systematic examination of their data publication practices.” On budgeting, appropriating and spending, eight out of 11 subjects received a D or F.

A Bloomberg investigation submitted FOIA requests to 57 agencies asking for travel records for Cabinet Secretaries and top officials in fiscal year 2011. Only 8 of the 57 agencies provided the documents within the 20-day period required by law and 7 provided the documents within 21 to 30 days. Almost half of the agencies did not provide documents at all by September 14, 2012 (the requests were sent in June of 2012). In a follow-up report in December of 2012, Bloomberg noted that 19 agencies still had not provided documents, including nine of 15 cabinet offices.

A staff report by the House Committee on Oversight and Government Reform examined the FOIA tracking systems for 180 government entities and gave cabinet agencies a C- grade and all 180 entities a B-. The report notes, however, that this only tests an agency’s ability to track its own FOIA requests and does not necessarily reflect its ability to respond to requests.

A FOIA Project study found that FOIA lawsuits have increased 28 percent during 2007-2008 and 2011-2012 from 562 to 720.

Here at Cause of Action, many of the FOIA requests we filed in 2012 hit unnecessary roadblocks including superfluous redactions, needless fees, and failure to meet time mandates required by the law. At one bureau, a whopping 30 percent of our requests have gone unfulfilled for more than 180 days, and at another our investigations team was halted when a FOIA officer went on vacation for 3 weeks without anyone to even answer our questions.

But now, it’s 2013. A new year has come, both in time and politics. This year, we have three New Year’s resolutions to suggest for the government.

  1. Increase efficiency in providing responsive documents to FOIA requests. Some of our requests have been open for more than 6 months with no production. At the very least, agencies should attempt to provide a timetable for when the documents can be produced.
  2. FOIA officers should improve communications with requesters by responding to email and phone calls in a timely manner. One agency could not give any information on one of our outstanding requests because the FOIA officer in charge of our request was out of town for almost three weeks. We could not get a status update or even an acknowledgement that they had our request. If the agency has a question regarding the FOIA request, it should not hesitate to contact the requester to resolve the issue. This will cut down on response times while also reducing appeals and lawsuits.
  3. President Obama and Attorney General Holder need to enforce the vision set out in their 2009 memorandums. Holder stated that agencies “should not withhold information simply because it may do so legally” and “whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure.” These promises have largely gone unfulfilled, and since there’s no better time than the present, 2013 would be a good time to start keeping them.
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09/11/2012

Cause of Action Demands Answers From NLRB On Ex Parte Communications

 

CAUSE OF ACTION DEMANDS ANSWERS FROM NLRB ON EX PARTE COMMUNICATIONS

Inspector General at NLRB May Have Ignored Evidence Against Lafe Solomon and Wilma Liebman

WASHINGTON – Cause of Action (CoA), a government accountability group, sent a letter on Monday to National Labor Relations Board (NLRB) Inspector General David Berry (IG Berry) requesting documents and communications about alleged ex parte communications by NLRB Acting General Counsel Lafe Solomon and former NLRB Chair Wilma Liebman first revealed by CoA in November of 2011.

On November 22, 2011, CoA requested that IG Berry open an investigation to determine whether Wilma Liebman engaged in ex parte communications with Lafe Solomon. CoA submitted several emails evidencing communications between Solomon and Liebman concerning strategies surrounding the pending litigation by the NLRB against the Boeing company. Despite this evidence, deposition transcripts from March 15, 2012 related to the NLRB’s investigation into Terence Flynn reveal that IG Berry denied any other instances of ex parte communications, stating “If I have evidence other people are engaging in this type of conduct, we would look at other individuals.” While Inspector General Berry has not confirmed whether an investigation has begun, CoA is concerned that Berry may have delayed investigating CoA’s allegations until after the OIG’s two investigations into two Republicans at the NLRB: Board member Brian Hayes and then-Chief Counsel Terence Flynn.

CoA’s Executive Director, Dan Epstein, is concerned about IG Berry’s apparent failure to promptly investigate allegations of improper communications:

“In November 2011, Cause of Action provided IG Berry with internal NLRB emails evidencing potential ex parte communications between Lafe Solomon and Wilma Liebman during Lafe Solomon’s litigation against Boeing in 2011. These alleged ex parte communications were shown to have occurred even after Lafe Solomon filed the complaint against Boeing in April 20, 2011. The allegedly improper communications by Terence Flynn occurred starting in September 2011; the alleged improper communications from Member Hayes occurred between September and November 30, 2011. And yet investigations of Hayes and Flynn occurred even though the alleged improper activities by Wilma Liebman and Lafe Solomon occurred months before. As CoA states in its letter to IG Berry, ‘we are particularly troubled that a decision, if any, to investigate the allegations of ex parte communications by Wilma Liebman and Lafe Solomon after substantial delay may be arbitrary and capricious, if not politically charged.’ This is why we are requesting any documents from the NLRB that would verify that IG Berry is in fact investigating based upon the evidence Cause of Action submitted to him nearly 10 months ago.”

CoA’s letter, a Freedom of Information Act request, asks for the following:
1) All records, including e-mails, referring or relating to Cause of Action’s November 22, 2011 request for an NLRB OIG investigation.

2) All records referring to or related to Congressman Kline’s letter of April 13, 2012.

3) Any and all investigative reports or documents submitted to Congress regarding the substance of Chairman Kline’s April 13, 2012 letter.

4) All records referring to or related to allegations of ex parte communications from officials of the NLRB pertaining to the Boeing matter referenced above.

5) All records pertaining to concluded investigations or determinations made regarding Cause of Action’s November 22, 2011 request for investigation.

6) All records of any concluded investigations, both criminal and administrative, into NLRB ex parte communications regarding the Boeing matter referenced above.

7) All records referring or relating to why investigative reports such as Reports concerning OIG-I-467 and OIG-I-468 are not publicly posted by the NLRB OIG.

8) All documents referring or relating to the procedures used by the NLRB OIG to determine whether information or allegations are sufficiently “credible” to warrant the launching of an investigation.

9) Any and all records concerning referrals by the NLRB OIG to the U.S. Department of Justice.
The full letter can be found here.

Previous requests and findings by CoA concerning ex parte communications at the NLRB can be found here.

About Cause of Action:
Cause of Action is a nonprofit, nonpartisan organization that uses investigative, legal, and communications tools to educate the public on how government accountability and transparency protects taxpayer interests and economic opportunity. For more information, visit www.causeofaction.org.

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09/11/2012

National Labor Relations Board

2012-9-10 NLRB FOIA Request

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08/21/2012

Are FOIA Challenges Hurting Government Transparency?

 

Freedom of Information Act (FOIA) requests are an important legal tool, which allows for organizations such as Cause of Action and the public to find out about how the government is spending tax dollars. FOIA is the only real method that the public can use to get specific details on certain aspects of spending and government activity, which is necessary to ensure greater transparency.  FOIA inquiries often yield huge results that take extensive time and effort for agencies to gather and respond to, which often leads to agencies being unable and unwilling to comply with large requests.

The lack of efficiency in agency compliance with FOIA requests serves as a significant hindrance in using this tool effectively to ensure accountability and transparency by Federal Agencies.  Cause of Action submitted a statement for the record to the Congressional Oversight Committee’s hearing on FOIA and Transparency concerning this very issue:

 

Hearing Before The Committee On Oversight and Government Reform

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08/6/2012

Cause of Action Exposes OGE’s Failure to Act in GSA Spending Scandal

  Cause of Action Exposes OGE’s Failure to Act in GSA Spending Scandal

Watchdog Organization Calls on White House to Evaluate Careless Investigation and Lack of Oversight

WASHINGTON – Cause of Action released an investigative memorandum today detailing how the Office of Government Ethics (OGE) failed to detect ethics abuses by the General Services Administration (GSA), now infamous for the 2010 Western Regional Conference in Las Vegas that cost taxpayers $822,751.

 

The memorandum, The Office of Government Ethics Failed to Prevent Scandal at the General Services Administration, discloses years of mismanagement at OGE and waste at GSA that went unchecked until now.

 

“The enormous waste of taxpayer dollars by GSA over the last several years could have been prevented had GSA IG David Miller had the authority to investigate ethics abuses instead of the OGE maintaining that authority and simply ignoring its duties,” said Dan Epstein, executive director of Cause of Action (CoA). “Warning signs presented to OGE officials were ignored, and an OGE investigation bafflingly found GSA to be in compliance with ethics rules in 2010 during the time GSA employees were engaged in conflicts of interest and wasteful spending that violate both the letter and spirit of the Standards of Official Conduct.”

 

In addition to highlighting the failures of the OGE investigation, the memorandum also highlights several key gaps in the administration of the ethics program at the GSA.

 

“Quite obviously the GSA was running amuck with taxpayer dollars, and yet no one at the GSA seemed concerned. Perhaps this is because the person who should have been sounding the alarm—the Designated Agency Ethics Officer—didn’t exist; in fact, that position within the GSA sat vacant for at least four years,” said Epstein.

 

The memorandum is based upon the findings from CoA’s April 19, 2012, Freedom of Information Act (FOIA) request to OGE asking for “all documents referring or relating to any Office of Government Ethics investigation into or determination made regarding the GSA’s compliance with the Standards of Ethical Conduct for Employees of the Executive Branch between January 1, 2009 and the present.”

 

Some of the key findings include:

  • In November 2010, one month after the Western Regional Conference, OGE reported to GSA Inspector General Brian Miller, that “GSA’s ethics program appears to be effectively administered and in compliance with applicable laws, regulations, and policies”.  In fact, OGE considered GSA to have “model practices” in place.

 

  • OGE had both specific and prior knowledge that significant ethics risks existed at the GSA. GSA failed to fill a Designated Agency Ethics Officer (DAEO) position from 2007 to at least 2010. According to The Standards of Ethical Conduct for Employees of the Executive Branch, all agencies are required to have a DAEO to supply ethics advice to employees. GSA has eleven regional offices with no full-time ethics officials.

 

  • According to documents produced by OGE, GSA’s ethics program is principally administered by eleven regional ethics offices. Yet OGE reviewed only five of GSA’s eleven regional offices for compliance with applicable laws, regulations, and policies.

 

  • OGE lacks the oversight and accountability of an Inspector General. Any mismanagement or fraud within the Office of Government Ethics is subject to review only by OGE itself. OGE missed allegations of waste, fraud and mismanagement by GSA that occurred before and during OGE’s investigation of GSA. GSA’s ethics abuses were investigated and later documented by its own IG, not the OGE.

 

“In response to our findings we are sending a letter to the White House calling for the President to consider the cost to taxpayers involved in keeping the OGE as opposed to strengthening the roles of sitting Inspectors General,” continued Epstein.

The letter, addressed to President Obama, reads in part, “Given your commitment to ethics and transparency in government, we recommend that you have the Office of Management and Budget consider whether the OGE should be abolished and its authority transferred to the Inspectors General, who, as is the case with GSA IG Brian Miller, have the authority to address issues of waste, fraud, and mismanagement in the Federal Government.”

 

The full memorandum and letter to White House can be viewed here.

 

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08/1/2012

Recent Report Demonstrates Need for Clearer FOIA Rules on Personal E-mails

 

Cause of Action’s Dan Epstein and Michael Pepson recently wrote an article in Engage, a publication of the Federalist Society, discussing the legal implications of government officials using their personal e-mail accounts to do official business and whether these e-mails should be accessible to the public. Now, Politico is reporting that a “House Energy and Commerce Committee report out Tuesday is stocked with emails sent from private addresses,” of former White House staff. These e-mails included discussions of how to influence pending bills and specific ways to avoid disclosure rules by meeting outside the White House. Despite the Administration’s claims of transparency, these e-mails clearly violate that spirit.

What is raised in the Engage article is that if e-mails such as these had been requested through a Freedom of Information Act request, it is unclear whether a court would grant such access based on the current rules.  This example makes the case even clearer that FOIA requests should sometimes include personal e-mails dealing with official business and therefore Congress needs to create definitive rules as to what those requests cover. The public having access to these e-mails could make it much harder for businesses and government officials to abuse their power and attempt to influence legislation through crony deals.  Legislative bills should be negotiated in front of the public, not in secret behind closed doors during off-site meetings with lobbyists.

Cause of Action is dedicated to promoting economic liberty, and cronyism is antithetical to that principle. A more transparent and engaged government is the only way that officials in government, especially in the large administrative bureaucracy, can be held accountable to the public.

As Pepson and Epstein conclude in their article, “Ultimately, unless Congress legislatively clarifies whether the FOIA’s disclosure provisions apply to communications sent or received via private e-mail accounts and personal communications devices, a federal district court will be compelled to squarely and comprehensively opine on the application of FOIA’s disclosure provisions to federal employees’ work-related communications sent through personal channels in the course of adjudicating whether a particular agency has improperly withheld agency records.”

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07/30/2012

Federalist Society’s Engage Journal: When Politics Gets Personal, Does the Public Have a Right to Know?

Engage: Gmail.gov: When Politics Gets Personal, Does the Public Have a Right to Know?

Gmail.gov: When Politics Gets Personal, Does the Public Have a Right to Know?

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