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10/15/2018

CoA Institute Calls on Inspectors General Council to Revise Proposed FOIA Regulations

Cause of Action Institute (CoA Institute) submitted a comment last week to the Council of Inspectors General on Integrity and Efficiency (CIGIE) concerning the agency’s interim final rule implementing revised Freedom of Information Act (FOIA) regulations. CoA Institute explained that the agency’s new rule could cause confusion by directing staff to interpret the FOIA statute and CIGIE’s implementing regulations in light of outdated fee guidelines published by the White House Office of Management and Budget (OMB).

OMB published its Uniform Freedom of Information Fee Schedule and Guidelines in 1987. Although 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.  Indeed, 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, which incorporates an “organized and operated” standard, 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issued a landmark decision in Cause of Action v. Federal Trade Commission clarifying that OMB’s definition had been superseded by Congress.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, however, no agency should direct its staff to consult them in any way as an authoritative guide to interpreting the law.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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10/15/2018

Cause of Action Institute Lawsuit Seeks to Overturn DOJ’s restrictive FOIA guidance

CoA seeks to correct the definition of a “record” to prevent federal agencies from unnecessarily redacting public information

Washington, D.C. (Oct. 15, 2018) – Cause of Action Institute (CoA Institute), a government watchdog organization, today filed a lawsuit against the U.S. Department of Justice (DOJ), challenging the Department’s definition of a “record” under the Freedom of Information Act (FOIA). DOJ’s guidance document classifies “records” only as the material requested in a FOIA request. This allows agencies to break a single record into multiple smaller records, redacting information that would otherwise be public and not meet allowable exemptions under the FOIA statute (e.g. releasing a single paragraph while redacting the rest of an email as a “nonresponsive record”). DOJ’s policy unnecessarily restricts public information that should not be redacted.

James Valvo, counsel and senior policy advisor at CoA Institute, issued the following statement:

“DOJ’s FOIA policy and misreading of the definition of a record under FOIA actively seeks to restrict access to public information beyond the scope of federal law. This is poor public policy, and an attempt to undermine laws that require the government remain transparent and accountable.”

Background:

  • The U.S. Department of Justice FOIA guidance document allows the agency, and others that rely on its guidance, to segment unified records into multiple smaller records to avoid disclosure.
  • This case seeks to establish, for the first time, a binding definition of a “record” under the FOIA.
  • Courts have held numerous times that FOIA contains only nine exemptions and agencies may not use “nonresponsive” as a tenth. (for example, personal identifying information, records that pertain to national security, etc.)
  • For more background on the legal issue, click here.

Attachments:

About Cause of Action Institute

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
matt.frendewey@causeofaction.org
202-699-2018

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10/12/2018

How a small 242-year-old Spanish fort is part of an ongoing effort to make the government more transparent and accountable

Presidio Trust Adopts CoA Institute’s Recommendations with Final FOIA Regulations

In 1776, more than 2,800 miles away from the battles of the American Revolution, a Spanish military fort was established on the tip of the San Francisco Peninsula. Today, this small slice of land is a federal park managed by an obscure federal agency called the Presidio Trust. Two hundred and forty-two years later, this former Spanish military fort is part of Cause of Action Institute’s ongoing effort to make all levels of the federal government more transparent and modernize the federal government’s FOIA process.

Earlier this week, the Presidio Trust finalized a rule implementing new Freedom of Information Act regulations and incorporating important revisions proposed by Cause of Action Institute in March 2018.

CoA Institute made several recommendations in response to the Presidio Trust’s proposed rulemaking. Most importantly, we urged the agency to remove outdated “organized and operated” language from the definition of a “representative of the news media.” Such language has been used by government agencies in the past to deny news media requester status—and favorable fee treatment—to government watchdog organizations, including CoA Institute.

For example, CoA Institute sued the Federal Trade Commission, and took its case all the way to the D.C. Circuit, to get the agency to acknowledge that its FOIA fee regulations were outdated and that it had improperly denied CoA Institute a fee reduction. In deciding that case, the D.C. Circuit issued a landmark decision clarifying proper fee category definitions and the application of fees in FOIA cases. CoA Institute cited this case to the Presidio Trust, and the agency took heed of the current case law, removing the outdated “organized and operated” standard from its final rule.

The statutorily superseded “organized and operated” standard originates with FOIA fee guidelines published by the White House Office of Management and Budget (OMB) in 1987.  Portions of the OMB guidance are no longer authoritative because they conflict with the statutory text, and judicial authorities, including Cause of Action v. Federal Trade Commission.

In 2016, the FOIA Advisory Committee and the Archivist of the United States both called on OMB to update its fee guidelines. CoA Institute filed a petition for rulemaking on the issue and is litigating the matter in federal court. Earlier this summer, OMB finally agreed to update its agency regulations, and amend its definition of a news media request, but the agency continues to refuse to update the 30-year-old fee guidelines.

Since the passage of the FOIA Improvement Act of 2016, CoA Institute has commented on 24 separate rulemakings.  Of the 13 that have been finalized, CoA Institute has succeeded in convincing nine agencies, including the Presidio Trust, to abandon the outdated “organized and operated” standard in favor of a proper definition of “representative of the news media.”

The remaining agencies that have accepted CoA Institute’s recommendations include the following:

Some agencies, including the National Credit Union Administration and the Federal Reserve, have deferred their consideration of CoA Institute’s recommendations and have promised to propose further rulemakings in the near future to address outstanding FOIA fee issues.

CoA Institute’s successful comment to the Presidio Trust is another small step in our efforts to provide effective and transparent oversight of the administrative state and ensure agency compliance with the FOIA.

See also:

Cause of Action Institute’s March 2018 public comment submitted to the Presidio Trust

Ryan P. Mulvey is Counsel at Cause of Action Institute

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09/14/2018

Cause of Action files lawsuit against DOJ relating to Lois Lerner-IRS data scandal

WASHINGTON, D.C. – Sept. 14, 2018 – Cause of Action Institute (CoA Institute) has filed a lawsuit against the Department of Justice (DOJ) seeking records relating to the infamous Lois Lerner-IRS scandal. In 2010, the Internal Revenue Service (IRS) improperly released 21 CDs of confidential taxpayer information to the DOJ. This illegal release of confidential tax information resulted in several internal investigations, but the government has refused to release any of its internal reports or communications relating to the scandal.

“Taxpayers deserve to a have a full and clear picture of what took place nearly a decade ago when the U.S. Department of Justice and Internal Revenue Service were partnering in an effort to target nonprofits,” said Ryan Mulvey, counsel at Cause of Action Institute. “We have repeatedly requested the release of the internal investigation reports and the records revealing when and what the DOJ shared with Congress about this improper release. Taxpayers deserve a clear picture of who knew what and what really took place in the targeting of nonprofits by the DOJ and the IRS.”

In its investigation of this matter, CoA Institute has engaged with various DOJ components and Treasury Inspector General for Tax Administration (TIGTA), filed multiple unanswered Freedom of Information Act (FOIA) requests, and sought records regarding the potentially illegal access to and disclosure of this confidential taxpayer information.

Background:

  • In 2013, the public learned that the IRS Exempt Organizations Section, led by then-Director Lois Lerner, had been involved in unfairly targeting nonprofits, allegedly for political purposes.
  • Before then, the IRS and DOJ met on several occasions to discuss targeted prosecutorial efforts.
  • At one of those meetings, the IRS improperly provided the DOJ with 21 CDs containing statutorily protected confidential taxpayer information. That information could have been disclosed to the DOJ pursuant to statutory exemptions, none of which applied to this disclosure.
  • DOJ returned to the IRS, the CDs contained 1.1 million pages of confidential information regarding tax return information of various tax-exempt groups.
  • CoA Institute wrote to both the TIGTA and the DOJ Office of Inspector General (DOJ OIG) to request investigations into this illegal access to and disclosure of confidential taxpayer information. TIGTA and DOJ OIG both opened investigations of this matter.
  • TIGTA refused to release its findings.
  • DOJ OIG, in a letter to CoA Institute, explained that, “[b]ased upon [its] initial inquiries, it appears that some protected taxpayer information was included on compact disks (CDs) that the IRS provided to the Department in response to a Department request.” Once “the Department learned of this, it returned the CDs to the IRS and informed Congress about it.” Citing “the absence of available information,” DOJ-OIG “determined that [CoA Institute’s request] does not warrant further investigation.”
  • In October 2016, CoA Institute sent a FOIA request to the DOJ-OIG seeking records of its communication with Congress relating to this unauthorized disclosure.
  • In October 2017, CoA Institute sent two additional FOIA requests to various DOJ components to ensure that CoA Institute received all relevant records pertaining to the IRS’s unlawful disclosure, particularly regarding the DOJ’s communications with Congress.
  • DOJ has refused to respond to any of the CoA Institute FOIA requests for this matter.
  • On Thursday, Sept. 13, 2018 Cause of Action Institute filed the following complaint against the U.S. Department of Justice, Cause of Action Inst. v. U.S. Dep’t of Justice, 18-2126 (D.D.C.)

Full complaint can be viewed below.

About Cause of Action Institute

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

matt.frendewey@causeofaction.org

202-699-2018

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09/14/2018

Federal judge rejects DOJ’s use of attorney-client, deliberative process privileges to hide communications with the White House Counsel from public disclosure

Judge James Boasberg of the U.S. District Court for the District of Columbia yesterday granted in part Cause of Action Institute’s (“CoA Institute’s) motion for summary judgment in a Freedom of Information Act (“FOIA”) lawsuit against the Department of Justice (“DOJ”). Judge Boasberg vigorously rejected DOJ’s attempt to withhold records of communications with the White House under the attorney-client and deliberative process privileges.  CoA Institute filed its lawsuit in July 2017, after DOJ refused to produce records that would have revealed whether it was involved in implementing a controversial directive from the U.S. House of Representatives Committee on Financial Services.  The underlying request at issue, which CoA Institute submitted in May 2017, followed reports that Jeb Hensarling, Chairman of the Financial Services Committee, had directed twelve agencies—including, the Department of the Treasury and eleven other entities—to treat all records exchanged with his Committee as “congressional records” not subject to the FOIA.

Judge Boasberg’s most damning holding concerned DOJ’s misuse of Exemption 5 to redact a line from a White House email and to withhold in full an attachment—presumably the letter from Chairman Hensarling—received by several Executive Branch agencies.  As the Court explained:

Indeed, any reasonable individual would reach the same conclusion as the Court after cursorily examining the record at issue.

The sole basis of DOJ’s defense was the declaration a senior agency attorney, who claimed that the White House email reflected a “routine” sort of “consultative exchange” in which Office of Information Policy Director Melanie Pustay was asked for “advice.”  But the Court saw through this self-serving statement and explained that DOJ had failed to meet its burden in proving that the specific record at issue reflected the provision of legal services.  To rule otherwise would tend to turn any correspondence with a government attorney into privileged material.

The Court also failed to see how the withheld material contained any confidential information.  For example, the attachment to the White House email—ostensibly, a copy of the Hensarling letter—was merely one of many substantively identical letters that DOJ admitted were received across the Administration.  There was simply no agency-specific confidential information at issue.

Judge Boasberg further rejected DOJ’s use of the deliberative process to withhold the same White House communications.  Despite the government’s arguments during briefing, after reviewing the records itself, the Court determined that they contained nothing that could be construed as deliberative.

Although the court granted in part CoA Institute’s motion, it also sided with the government over the withholding of eleven pages of records exchanged between DOJ and an unidentified agency.  After reviewing those records, the Court determined that they did, in fact, reflect the agency’s decision-making processes and revealed the solicitation and provision of confidential legal advice.  Moreover, there were no reasonably segregable portions of the records that could be released to CoA Institute. Finally, the court did not resolve the parties’ dispute over the “foreseeable harm” standard that Congress introduced in the FOIA Improvement Act of 2016..

* * *

The Court has ordered DOJ to release unredacted versions of the White House communications. Once these records have been released, we will provide another update addressing their contents.

Judge Boasberg’s opinion is available here.

Ryan Mulvey is Counsel at Cause of Action Institute

 

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08/22/2018

OMB Grants CoA Institute Petition for Rulemaking, Begins Work to Update Its FOIA Regulations

Today, the White House Office of Management and Budget (“OMB”) published a notice of proposed rulemaking in the Federal Register to begin the process of updating its Freedom of Information Act (“OMB”) regulations.  By doing so, OMB has effectively granted a 2016 Cause of Action Institute (“CoA Institute”) petition for rulemaking.

In the June 2016 petition, CoA Institute urged OMB to update its 30-year-old FOIA fee guidelines, which now conflict with the statute and numerous judicial decisions and to which agencies across the government are required to conform.  We also asked OMB to update its own FOIA regulations, which had not been revised since 1998.  Congress has made at least two important amendments to the FOIA since then that OMB has not incorporated into its regulations.[1]  The impetus for CoA Institute sending this petition was to urge OMB to remove the anachronistic “organized and operated” standard from both the guidance and its own regulations’ definition of a “representative of the news media.”[2]

After being ignored for two years, CoA Institute filed suit claiming OMB had violated the Administrative Procedure Act by failing to respond to the petition.  Spurred to action by that litigation, on June 29, 2018, OMB finally responded.  Although the agency denied the petition to update its 30-year-old FOIA fee guidelines, it stated that it was “in the process of updating its FOIA regulations, including fee regulations, to reflect statutory changes and recent judicial decisions.”

Today, the agency published those proposed updates.  OMB has removed the “organized and operated” standard from its regulations and adopted the statutory definition for a “representative of the news media.”  However, it failed to heed CoA Institute’s advice that “OMB should clarify that, while a fee waiver may focus on the substance of a particular request, the news media fee status analysis “focus[es] on requesters, rather than requests[.]”  CoA Institute also asked OMB to embrace the D.C. Circuit opinion clarifying that the so-called middleman standard, which allowed agencies to deny preferential fee status if they felt the requester was only a middleman between the agency and the ultimate publishing source, was inappropriate.  OMB did not include any mention about the validity of the middleman standard in its new regulations.

Although CoA Institute is gratified that OMB has finally begun the process of updating its own FOIA regulations, it will continue the fight in its ongoing lawsuit to challenge OMB’s refusal to bring its 30-year-old FOIA fee guidelines—to which agencies across the federal government are required to conform—into compliance with the statute.

James Valvo is Counsel and Senior Policy Advisor at Cause of Action Institute.  You can follow him on Twitter @JamesValvo.

[1] See generally FOIA Improvement Act of 2016 and OPEN Government Act of 2007.

[2] See Cause of Action v. Fed. Trade Comm’n, 799 F.3d 1108 (D.C. Cir. 2015).

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08/16/2018

Department of Veterans Affairs Discloses 2014 Guidance on Intra-Agency Consultations for FOIA Requests of “Substantial Interest” to Agency Leadership

The Department of Veterans Affairs (“VA”) has released a February 2014 memorandum reiterating the need for “consultations” on certain Freedom of Information Act (“FOIA”) requests, including those of “substantial interest” to the agency’s political leadership.  Cause of Action Institute (“CoA Institute”) obtained the record after submitting a disclosure request in the wake of Senate Democrats expressing concern over possible politicization of VA FOIA processes.

The memorandum, which is addressed to “Under Secretaries, Assistant Secretaries, and Other Key Officials,” indicates that VA regulations require intra-agency consultation or referral whenever incoming FOIA requests implicate records that originate with another component or prove to contain “information” of “substantial interest” to another VA office.  While “referral” entails the effective transfer of responsibility for responding to a request, “consultation” refers to discussing the release of particular records.

Consultation within an agency or with other entities can be a positive practice that ensures records are processed in accordance with the law.  Indeed, in some cases, “consultation” is required.  Executive Order 12600, for example, requires an agency to contact a company whenever a requester seeks confidential commercial information potentially exempt under Exemption 4.  Yet consultations occur in less-easily defined situations, too.

The FOIA only mentions “consultation” in the context of defining the “unusual circumstances” that permit an agency to extend its response deadline by ten working days.

[“Unusual circumstances” include] the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.

Unfortunately, the phrase “substantial interest” is not itself defined.  This is where problems begin.  The Department of Justice’s (“DOJ”) guidance on consultation suggests that a “substantial interest” only exists when records either “originate[] with another agency” or contain “information that is of interest to another agency or component.”  The DOJ’s FOIA regulations, and the Office of Information Policy’s model FOIA regulation, while not dispositive, do provide a little more context.  They suggest “consultation” should be limited to cases when another agency (or agency component) originated a record or is “better able to determine whether the record is exempt from disclosure.”

CoA Institute has long sought clarification on the exact nature of a “substantial interest.”  In November 2014, we submitted a public comment to the Department of Defense (“DOD”) arguing that consultation should be restricted to situations where another entity has created a responsive record or is “better positioned to judge the proper application of the FOIA exemptions, given the circumstances of the request or its familiarity with the facts necessary to judge the proper withholding of exempt material.”  Although our proposed definition was admittedly non-ideal—DOD did not accept that portion of our comment—it hinted at the troubling abuse, politicization, and unjustifiable delay that can occur with consultation.

The best example of such abuse and politicization is found with “White House equities” review, which is carried-out as a form of “consultation.”  As CoA Institute has repeatedly documented, however, this form of “consultation” extends far beyond “White House-originated” records or records containing information privileged by White House-controlled privileges.  Instead, pre-production White House review has been extended to almost anything that is potentially embarrassing or politically damaging to the President.  In May 2016, CoA Institute sued eleven agencies and the Office of the White House Counsel in an effort to enjoin the Obama Administration from continuing “White House equities” review, but that lawsuit was dismissed.  It is unclear to what extent President Trump has continued the practice, although at least one other oversight group has uncovered evidence of recent White House review of politically sensitive records from the Department of Housing and Urban Development.

As for the VA, the recently disclosed memorandum is silent about the precise meaning of a “substantial interest.”  But, at least for the “substantial interest” of the agency’s political leadership, the memorandum indicated that “[f]ollow-up guidance will be forthcoming.”

This is especially troubling.  Last week, I discussed how DOD failed to address Inspector General recommendations concerning the agency’s so-called “situational awareness” process for notifying political leadership about “significant” FOIA requests that may “generate media interest” or be of “potential interest” to DOD leadership.  I noted that agencies hide behind technical phrases—like “substantial interest” or “situational awareness”—while allowing non-career officials to inappropriately interfere with FOIA processes.  This could be what is happening with the VA.  Why is special “guidance” needed to identify the “substantial interest” that the VA Secretary may have in a specific request?  Does this not hint of the same sort of inappropriate “sensitive” review implemented at countless other agencies?

CoA Institute has appealed the VA Office of the Secretary’s response.  The 2014 memorandum was the only record produced in response to our FOIA request.  The “follow-up guidance” should also have been located and disclosed.  It must be made public.  Other VA offices are still processing portions of our request; the Office of Inspector General, for its part, was unable to locate records about recent investigations into FOIA politicization.  As further information becomes available, we will post additional updates.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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