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03/22/2019

Cause of Action Institute leads diverse coalition in filing Supreme Court amicus brief in FMI v. Argus Leader

Urges Court to follow the text and strike a wise balance when examining Exemption 4 within the Freedom of Information Act

Today, Cause of Action Institute, a nationally recognized government watchdog organization with a specialty in government transparency, led an ideologically diverse coalition in filing an amicus brief involving Exemption 4 of the Freedom of Information Act (FOIA), a statute the Court rarely interprets. The brief, filed before the U.S. Supreme Court, urges the Court to improve and clarify how Exemption 4 is applied. This particular exemption protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”

The case has the potential to upset the status quo and drastically expand the use of this exemption – meaning more information that was otherwise public could now be withheld from disclosure. The coalition’s amicus brief urges the Court to strike a sound balance by clarifying and improving the competitive-harm test, eliminating the Critical Mass distinction, confirming an objective test for determining confidential information, and ensuring Exemption 4 takes into account some reputational harms that could occur if confidential information is disclosed.

James Valvo, counsel and senior policy advisor for Cause of Action issued the following statement:

“It’s rare to see the Supreme Court take a FOIA case, and far more rare that the case deals with the specifics of Exemption 4. But good government is government that is transparent and open. This is perhaps why it is so critical that the Court uses this opportunity to clarify how Exemption 4 is applied, to ensure the public’s right to information is protected while not harming legitimate commercial concerns. The existing standards to determine what information falls within or out of the scope of Exemption 4 has created a confusing web that does a disservice to spirit of the FOIA.”

In addition to Cause of Action Institute, Citizens for Responsibility and Ethics in Washington, FOIA Advisor, Open the Government, and the Project on Government Oversight signed the amicus brief.

The amicus brief specifically asks the Court to:

  • Address and interpret the term “confidential,” as used under Exemption 4, to bring it into harmony with the statutory text and its historical usage in other legal contexts and confirm an objective test for determining the confidentiality of commercial or financial information;
  • Eliminate the National Parks standard that the impairment of the government’s ability to collect information is a justification for withholding information as unnecessary and duplicative;
  • Eliminate the atextual distinction created in Critical Mass between information that is obtained through voluntary or compulsory means; and
  • Ensure Exemption 4 protects against certain types of reputational harm that have a negative impact on competitive standing.

Summary:

All records subject to the FOIA should be disclosed to the public unless the federal government cites one of nine exemptions. This case specially deals with Exemption 4, which concerns, “Trade secrets or commercial or financial information that is confidential or privileged.”

FOIA Exemption 4, exempts from disclosure “confidential” commercial or financial information that the government obtains from a person. But the FOIA does not define “confidential.” The meaning of that term cannot be derived from bare dictionary definitions. “Confidential” instead must be understood in light of its historical usage in other legal contexts and in the FOIA. Persuasive canons of statutory interpretation counsel the Court to take that approach. Petitioner’s overbroad understanding of “confidential” ignores legal history, deviates from the interpretative methodology accepted for other terms in Exemption 4, and would render the whole of Exemption 4 surplusage by swallowing up the independent meanings of “trade secret” and “privileged.”

The proper meaning of “confidential” covers information that, if made public, would cause competitive harm to its source. This meaning is rooted in the common law and the nature of confidential relationships. But history is not the only basis for this understanding. In other legal contexts, construing the phrase “confidential information” frequently involves some form of harm analysis. From judicial records and the Bankruptcy Code, to the Rules of Civil Procedure and this Court’s precedents on FOIA Exemptions 5 and 7, legal context demonstrates the inadequacy of Petitioner’s dictionary-bound approach to Exemption 4.

This case also presents the Court with an opportunity to clarify other aspects of Exemption 4. Although amici ask the Court to uphold the competitive-harm justification of National Parks, they also ask the Court to eliminate the government-impairment justification, abandon the distinction between information submitted voluntarily or under compulsion, reiterate that competitive harm is analyzed under an objective test, and accept reputational harms that impact competitive standing as cognizable under Exemption 4.

As the Court considers this case, it should do so consistent with its precedent for interpreting the FOIA. The Court has recognized that the FOIA is essential to “ensure an informed citizenry, vital to the functioning of a democratic society,” and that it contains a “strong presumption in favor of disclosure. To ensure that citizens have access to information and to honor the strong presumption of disclosure, FOIA exemptions “must be ‘narrowly construed.”

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Media Contact: Matt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

 

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03/21/2019

Cause of Action Sues Commerce Dept. for Failing to Release Auto-Tariff Report

Washington, D.C. (Mar. 21, 2019) – Cause of Action Institute (CoA Institute) filed a lawsuit against the Department of Commerce (Commerce) for failing to respond to two Freedom of Information Act (FOIA) requests seeking a copy of the Commerce Secretary’s final report to the President regarding the Section 232 investigation into the national security impacts of the Administration’s proposed foreign automobile tariffs. The Commerce Department has previously stated that it will not make the report public. In an effort to increase transparency and protect Americans’ economic freedom, CoA Institute filed a FOIA request so the public can see the report, but Commerce did not produce it within the statutory timeline.

James Valvo, counsel and senior policy advisor at Cause of Action Institute:

“Commerce claims that the information contained in their report justifies the proposed auto-tariffs, but the government refuses to release this report.  The public should not have to take the government’s word that the report supports tariffs when the administration withholds the document it claims supports its position. The tariffs will harm American consumers and businesses, and the public has a right to see the information contained in the report. We are dedicated to placing this vital information into the public sphere, ensuring that the government complies with its statutory obligations, and we look forward to a robust debate about the merits of the report.”

The Section 232 National Security Investigation of Imports of Automobiles, Including Cars, SUVs, Vans and Light Trucks, and Automotive Parts will provide recommendations for the Administration’s proposal to impose a 25% tariff on imports of cars and car parts. CoA Institute sent requests to both the Department of Commerce and the Bureau of Industry and Security for a copy of this report.

Background:

Documents:

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Media Contact: Matt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

 

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03/12/2019

Shining a Light on Agency FOIA Policies that Contradict the Law

Some agencies have regulations that conflict with the Freedom of Information Act (FOIA), which can lead to confusion for officials and the public, as well as the improper withholding of public information.  For instance, a few agencies still base their definition of a “representative of the news media” on language that is outdated and contradicted by both the FOIA statute and judicial authorities.  The old “organized and operated” standard that certain agencies have left in their regulations can be used to deny preferential fee treatment to nascent or non-traditional news media groups, as well as government watchdog organizations like Cause of Action Institute (CoA Institute).  The current statutory definition, by contrast, is meant to broaden the universe of requesters qualifying for the news media fee category.

In Cause of Action v. Federal Trade Commission,  a monumental decision in 2015 that resulted with an appellate court victory for Cause of Action Institute, the U.S Court of Appeals for the D.C. Circuit struck down the Federal Trade Commission’s outdated and narrow definition of a “representative of the news media” and confirmed the current statutory standard.  The FTC had tried to deny CoA Institute its proper fee categorization and a public interest fee waiver.

In March 2018, CoA Institute submitted a comment to the Millennium Challenge Corporation (MCC), a small agency tasked with delivering foreign aid to combat global poverty, on the agency’s proposed rule revising its FOIA regulations.  Among other things, CoA Institute suggested that the MCC correct its definition of a “representative of the news media.” In July of that year, MCC finalized a rule implementing the recommended revisions and taking a step towards effective and transparent oversight.  CoA Institute has had similar success with FOIA reform at other agencies, including the Consumer Product Safety Commission, Office of the Special Counsel, U.S. Department of Defense, U.S. Agency for International Development, and the U.S. Department of Homeland Security.

This is but one example of the work CoA Institute performs to advance government transparency and protect the rights of the American public, taxpayers and our collective ability to hold our government accountable for its actions.

Matt Frendewey is Director of Communications at Cause of Action Institute.

 

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03/11/2019

Cause of Sunshine – Day One of Sunshine Week

Today marks the beginning of Sunshine Week, a nationwide celebration of government transparency and accountability.

Since our founding, Cause of Action Institute has been at the forefront of government transparency, using the Freedom of Information Act (FOIA) to shed “sunshine” on the inner workings of our local, state and federal government. As fundamental as our right to vote, an open and transparent government is necessary to ensure the health of our democracy.

The hard work of our investigators and lawyers has resulted in public officials caught violating the law, government policies and procedures, and our litigation and public reports have improved the public’s right to understand and see how their government operates.

This week, we’ll highlight some of Cause of Action’s most important FOIA and open government cases, recommended reforms to the existing law, and highlight some of our ongoing investigations as we demonstrate our commitment to ensuring the economic and individual rights of tax payers remain protected from the administrative state.

Matt Frendewey is Director of Communications at Cause of Action Institute.

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02/19/2019

Cause of Action Institute Sues VA for Failing to Release Documents Concerning Tomah Medical Center

2017 Pharmacy Malfunction Could Have Put Veterans Lives At-Risk

Washington, D.C. (Feb. 19, 2019) – Cause of Action Institute (CoA Institute) today filed a lawsuit against the U.S. Department Veteran Affairs for failing to properly respond to a Freedom of Information Act (FOIA) request relating to the scandal-ridden Tomah VA Medical Center. The FOIA request, filed more than a year ago, concerned pharmacy operations that could have put countless veterans’ lives at risk.

John Vecchione, president and CEO of Cause of Action Institute:

“Our nation’s veterans deserve the utmost care and respect, and news reports of the Tomah VA Medical Center’s pharmacy center distributing potentially spoiled medicines are deeply concerning. Our veterans and taxpayers demand full transparency about existing and previous challenges concerning this facility and the services the Tomah VA provides to our veterans. Cause of Action Institute is dedicated to exposing corruption and holding government officials accountable, and ensuring our veterans receive the care, concern, and respect they deserve.”

Background:

In 2018, Cause of Action Institute submitted a FOIA request to the Tomah VA Medical Center after news reports indicated the center’s outpatient pharmacy center had suffered a “climate-control malfunction” resulting in temperatures in the facility housing medication reaching “97 degrees for at least an hour.” The high temperatures at the facility led to spoilage of the pharmacy’s medical stock, but VA officials continued to distribute medicine “for about four hours.” CoA Institute submitted a FOIA request for all records concerning the failure of the climate control system, as well as efforts to investigate the improper dispensing of potentially damaged medicines.

In May 2018, the VA Great Lakes Health Care System, which oversees the Tomah VA Medical Center, responded to CoA Institute’s FOIA, but withheld and redacted countless documents. CoA Institute filed a timely appeal on Aug. 6, 2018, explaining that the agency had “improperly relied on Exemptions 3, 5, and 6; failed to segregate non-exempt material from responsible records; failed to meet its burden under the FOIA’s “foreseeable harm” standard; improperly redacted portions of records as “non-responsive”; and failed to conduct an adequate search for responsive records.”

To date, the VA has failed to respond to the appeal despite numerous attempts to remind the agency of its statutory responsibility to respond in a timely manner.

Additional Documents:

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Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government.

Media Contact: Matt Frendewey, media@causeofaction.org 

 

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02/19/2019

Cause of Action Institute Files FOIA Requests for Commerce’s Section 232 Auto-Tariff Report

Washington, D.C. (Feb. 19, 2019) – Cause of Action Institute (CoA Institute) filed two Freedom of Information Act (FOIA) requests seeking a copy of the Department of Commerce (Commerce) Secretary’s final report to the President regarding the Section 232 investigation into the national security impacts of the Administration’s proposed automobile tariffs. The Administration has recently stated that it will not make the report public and has no obligation to do so.  CoA Institute disagrees and filed FOIA requests so that the public can see the report.

“The public has a right to see the Commerce report that purports to justify the Administration’s escalating tariffs, which are nothing more than taxes on American consumers,” said CoA Institute Director of Investigations Kevin Schmidt. “A 25 percent tariff on imported cars and automobile parts will harm American consumers and businesses and is likely to provoke retaliation from our trade allies. Cause of Action Institute intends to use all avenues available to ensure that this report is released to the public, including litigation if necessary.”

The Section 232 National Security Investigation of Imports of Automobiles, Including Cars, SUVs, Vans and Light Trucks, and Automotive Parts will provide recommendations for the Administration’s proposal to impose a 25% tariff on imports of cars and car parts. CoA Institute sent requests to both the Department of Commerce and the Bureau of Industry and Security for a copy of this report.

Background:

Documents:

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Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government.

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01/9/2019

CoA Institute Calls on Institute for Museum and Library Services to Revise Proposed FOIA Regulations

Cause of Action Institute (CoA Institute) submitted a comment yesterday to the Institute for Museum and Library Services (IMLS) concerning the agency’s proposed rule implementing revised Freedom of Information Act (FOIA) regulations. The IMLS is a small government agency responsible for providing financial and institutional support to libraries and museums at the state and local level. In its comment, CoA Institute highlighted the agency’s improper retention of a fee definition that conflicts with the FOIA statute and warned the agency about potential confusion stemming from its directives for staff to administer the FOIA in light of outdated guidelines published by the Office of Management and Budget (OMB).

Link: Institute of Museum & Library Services – Public Comment re FOIA Rule

OMB published its Uniform Freedom of Information Fee Schedule and Guidelines in 1987. Although the FOIA requires an agency to promulgate its fee schedule in conformity with the OMB Guidelines, they are no longer authoritative because they conflict with the statutory text, as amended by Congress, and judicial authorities. Over the past thirty years, OMB has made no effort to revise its fee guidelines.  The OMB Guidelines therefore should not be used as a reference point for proper administration of the FOIA.

One problematic aspect of the OMB Guidelines is the definition of a “representative of the news media.” The current statutory definition of this fee category, which was introduced by the OPEN Government Act of 2007, differs significantly from the definition provided by OMB in 1987. OMB’s definition, as well as the current regulatory definition maintained by the IMLS, incorporates an “organized and operated” standard, which has long been one of the more contentious aspects of the OMB Guidelines. In 2015, however, the D.C. Circuit issued a landmark decision in Cause of Action v. Federal Trade Commission clarifying that OMB’s definition had been superseded by Congress.

The OMB Guidelines also have been rendered obsolete by other jurisprudential developments. For this reason, in 2016, the FOIA Advisory Committee and Archivist of the United States called on OMB to update its fee guidance. CoA Institute filed a petition for rulemaking on the issue, too. Last November, we filed a lawsuit to compel the agency to provide a response to that petition. The lawsuit is still pending with respect to the fee guidelines, although the agency has agreed to update its own implementing regulations (and to abandon the “organized and operated” standard).

Until the OMB Guidelines have been revised to reflect modern circumstances and the actual text of the FOIA, no agency should direct its staff to consult them in any way as an authoritative guide to interpreting the law. Moreover, each agency has its own independent duty to ensure that its regulations do not contradict statutory language. Ensuring such conformity with the law must be a central focus of all regulatory reform.

Ryan P. Mulvey is Counsel at Cause of Action Institute

Institute of Museum & Library Services – Public Comment re FOIA Rule

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