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06/20/2018

CoA Institute Calls on General Services Administration to Revise Proposed FOIA Regulations

Cause of Action Institute (“CoA Institute”) submitted a comment today to the General Services Administration (“GSA”) concerning the agency’s proposed rule revising its Freedom of Information Act (“FOIA”) regulations.  CoA Institute explained that the planned changes could cause confusion by directing agency staff to interpret the FOIA statute and GSA’s implementing regulations in light of outdated fee guidelines published by the White House Office of Management and Budget (“OMB”).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 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 the Guidelines.  They should not be used as a reference point for the 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 from the definition provided by OMB.  Indeed, the OMB 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issued a landmark decision in Cause of Action v. Federal Trade Commission clarifying that OMB’s definition had been superseded by Congress.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.  Our lawsuit is still pending.  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.

Ryan Mulvey is Counsel at Cause of Action Institute

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06/11/2018

CoA Institute Calls on Department of Agriculture to Revise Problematic FOIA Rule

Cause of Action Institute (“CoA Institute”) submitted a comment today to the Department of Agriculture (“USDA”) concerning the agency’s publication of a deficient rule that proposes revisions to the agency’s Freedom of Information Act (“FOIA”) regulations.  CoA Institute explained that USDA’s FOIA rule fails to provide a definition of a “representative of the news media” that conforms with statutory and judicial authorities.  The proposed regulations also could cause confusion by directing agency staff to consult outdated fee guidance published by the White House Office of Management and Budget (“OMB”).

News Media Fee Category

USDA’s proposed regulations improperly retain the so-called “organized and operated” standard in the definition of a “representative of the news media.”  This is an important deficiency because the “organized and operated” standard has been used in the past to deny news media requester status to nascent media groups and government watchdog organizations like CoA Institute.  Indeed, CoA Institute took another agency—the Federal Trade Commission—to court, and argued its case all to the way to the D.C. Circuit, just to get the agency to acknowledge that its similar retention of the “organized and operated” standard was unlawful and led to improperly denying CoA Institute a fee reduction.  The D.C. Circuit eventually issued a landmark decision in CoA Institute’s favor to clarify proper fee category definitions and their application in FOIA cases.

Congress amended the FOIA to provide a straightforward and comprehensive definition of a “representative of the news media.”  USDA—and all other agencies—should not attempt to modify that definition or introduce additional hurdles for news media requesters.

OMB Fee Guidelines

USDA’s FOIA rule also proposes to retain references to the OMB’s 1987 FOIA fee guidelines, which are the genesis of the “organized and operated” standard.  Specifically, USDA would like its disclosure officials to estimate fees in accordance with the OMB fee guidelines.  But those guidelines are outdated and unreliable.  Over the past thirty years, Congress has amended the FOIA on numerous occasions, courts have developed overriding FOIA jurisprudence, and technology has evolved in significant ways.  Yet OMB has made no effort to revisit its fee guidance.  That guidance should not be used as a reference point for the proper administration of the FOIA.

In 2016, the FOIA Advisory Committee and the Archivist of the United States called on OMB to update the fee guidelines.  CoA Institute even filed a petition for rulemaking on this issue.  Last November, we filed a lawsuit to compel the agency to provide a response to that petition.  Until OMB acts to revise its fee guidelines, USDA should not direct its staff to consult them in any way as authoritative.

Other Agencies Have Followed CoA Institute’s Advice

CoA Institute has succeeded in convincing a number of other agencies to abandon the OMB’s “organized and operated” standard in favor of a proper definition of “representative of the news media” in line with the FOIA statute and controlling case law.  Those agencies include, among others, the Consumer Product Safety Commission, Office of the Special Counsel, Department of Defense, U.S. Agency for International Development, and Department of Homeland Security.  We hope that USDA similarly will revisit its FOIA rule and eliminate the “organized and operated” standard in lieu of a proper definition of a news media requester.

Ryan Mulvey is Counsel at Cause of Action Institute

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05/16/2018

New Records Reveal the FAA Has Been Tracking FOIA Media Requesters

The Freedom of Information Act (“FOIA”) was introduced to ensure public access to records of the Executive Branch.  Unfortunately, agency FOIA processes have long suffered from politicization at the hands of bureaucrats and political appointees who hope to frustrate the disclosure of embarrassing or newsworthy documents.  A recent report about enhanced “vetting” of FOIA requests at the Environmental Protection Agency (“EPA”), for example, demonstrates the tenacity of those who govern—regardless of their political affiliation—to keep secrets from the concerned public.  Similarly, earlier this year, Cause of Action Institute (“CoA Institute”) revealed how the National Oceanic and Atmospheric Administration expanded its “sensitive review” procedures by putting records requests from attorneys, and requests concerning the Trump Administration’s transition period, into special processing categories.  Now, newly disclosed records from the Federal Aviation Administration (“FAA”) demonstrate how that agency has made concerted efforts to keep tabs on news media requesters.

The FAA’s FOIA “Media Reports”

“Sensitive review” refers to the practice of giving certain FOIA requests extra scrutiny, usually because the records at issue are politically damaging, embarrassing, or otherwise newsworthy.  Politicization can come in different forms.  Sometimes sensitive review entails an agency’s public affairs team or communications specialists being kept informed of new requests or outgoing productions of records.  In other instances, it involves political appointees supervising searches or making redaction decisions.  In all cases, sensitive review delays, and sometimes prevents, the disclosure of records that the public has a right to view.

According to records obtained by former CoA Institute attorney Allan Blutstein, the FAA’s sensitive review process includes a “tracking system” for requests submitted by representatives of the news media.  News media requesters automatically receive a fee reduction under the FOIA and presumptively satisfy some of the requirements for expedited processing. This preferential treatment is meant to recognize the vital role of the media in a participatory democracy.  The intentional targeting of media requesters within a framework for sensitive review, therefore, is especially concerning.

The following screenshot from one of the FAA’s “Media Request” charts shows just how the agency tracks pending requests.  Each line includes a description of the records at issue and each request’s processing “status,” such as whether a search has been conducted or responsive records are under review.

Although approximately half of the requests recorded in the FAA chart (100 of 184) were submitted during the Trump Administration, the remainder date from as early as April 2009.  Not only does this reveal an unacceptable backlog at the FAA, but it suggests that the practice of targeting media requesters for special scrutiny or “tracking” may have originated with the Obama White House.  CoA Institute warned in early 2014 that FOIA processes across the government were being clogged up by political intervention because of news media requesters seeking the disclosure of records about embarrassing scandals.  It appears that the FAA’s current practice reflects the politicization that was covertly emphasized by the Obama Administration.

(A complete copy of the FAA tracking chart is available here.  FOIA requests highlighted in blue have not yet been assigned to a FOIA officer, while requests in yellow are, in most cases, pending legal, business or supervisor review.  An agency-created summary of the highlighted FOIA cases is available here.)

As a representative of the news media, CoA Institute itself was subject to the FAA’s tracking regime.  Three of our pending requests, dating from early 2012 and 2013, were flagged.  One of those three requests has not even been assigned to a disclosure officer for processing, despite the fact that it was submitted to the FAA almost five years ago.

The version of the FAA’s “Media Request” tracking table obtained by CoA Institute, which is dated April 26, 2018, was circulated amongst several officials within the FAA’s Office of Communications (“AOC”) and the Department of Transportation’s Office of the Secretary (“OST”).  The cover email also includes a batch of incoming record requests.  All of this suggests that a key group at the FAA is responsible for managing the sensitive review process and keeping key officials within the Administration knowledgeable about ongoing FOIA affairs.

A complete copy of this email is available here.  To the extent we have been able to identify the individuals involved, we believe they hold the following positions within the FAA’s FOIA Office, Office of Communications, or the Office of the Secretary of Transportation:

  • Kimberly McCormick – FOIA Management Specialist
  • Kathy Ray – Departmental FOIA Officer, Department of Transportation
  • Laura Brown – Deputy Assistant Administrator for Public Affairs
  • Gary Kolb – Chief of Staff, Communications Division
  • Greg Martin – Assistant Administrator for Communications
  • Elisabeth Smeda – Senior Advisor to the Acting Administrator
  • Collen Donovan – Senior Advisor to the Deputy Administrator
  • Carlos Alfaro – Director, Information and Technology
  • Geraldine Gour – Manager, Administrative Services for the Aircraft Certification Service
  • Duke Taylor – Manager, FOIA Program
  • Louis Fuss – Senior FOIA Management Specialist
  • Laurie Karnay – FOIA Management Specialist
  • Susan McLean – FOIA Management Specialist
  • Delphine Ndi – FOIA Analyst

A collection of the incoming FOIA requests attached to the email is available here.  Those requests were submitted by various reporters from Mother Jones, ABC, NBC, Fox10 News of Mobile, various local newspapers, and ProPublica.

The Problem of FOIA Politicization

Unfortunately, there is nothing unlawful about an agency keeping separate “tracking” notes on FOIA requests submitted by members of the media.  Nor is there anything unlawful in an agency keeping its communications officials, or even other parts of the Executive Branch, aware of incoming requests or outgoing records that could elicit media coverage or public inquiries.  But the sort of intentional tracking and obvious backlog that has become standard procedure at the FAA is unacceptable and clearly violates the spirit of the FOIA.  The fact that requests from the beginning of 2009 are still pending is inexcusable.  The real danger of politicization at the FAA should be self-evident.  When an agency is committed to treating media requesters in a special way, the tendency will always be to delay and obstruct disclosure, thus impairing FOIA rights and inhibiting the proper functioning of a critical media.

Ever since President Trump took office, the transparency community—including CoA Institute—has raised valid concerns about the White House’s coordinated effort to stifle transparency, both in the context of FOIA and with respect to congressional inquiries and oversight requests.  This is an unfortunate development, and CoA Institute remains committed to fighting for open government.  But insofar as the current Administration questions the value of President Obama’s legacy, it should commit itself to greater transparency.  The Washington Post described the Obama Administration as one of the “most secretive,” “most elusive,” and “most punitive toward whistleblowers and leakers who want to bring light to wrongdoing they have observed from inside powerful institutions.”  The Trump Administration should endeavor to do better.  No one should fear the disinfecting power of sunlight, and the federal government is always in need of some cleaning.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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05/14/2018

Politics Clouding Criticism of the EPA’s Heightened Sensitive Review FOIA Procedures

Last week, a report from Politico revealed that the Environmental Protection Agency (“EPA”) maintains a burdensome “sensitive review” process for Freedom of Information Act (“FOIA”) requests concerning Administrator Scott Pruitt’s activities.  According to internal sources, officials within the Office of the Administrator have “reviewed documents collected for most or all FOIA requests regarding [Pruitt’s] activities[.]”  The Politico report further claims that this “high-level vetting” has increased, as compared with the policies and practices introduced during the Obama years.  “This does look like the most burdensome review process that I’ve seen documented,” argued Nate Jones from National Security Archive.

It is true that the Trump Administration has enhanced sensitive review processes at the EPA.  Other agencies have witnessed a similar expansion of sensitive review, as Cause of Action Institute’s investigation of the National Oceanic and Atmospheric Administration demonstrates.  But it would be a mistake—as I argued last December—to think that the Obama White House was any better at avoiding FOIA politicization.  The EPA has a long and terrible track record for anti-transparency behavior.  Consider the agency’s blatant weaponization of fee waivers.  According to data compiled by the Competitive Enterprise Institute, and reported by Reason and The Washington Examiner, the Obama EPA regularly denied public interest fee waivers to organizations critical of the agency’s regulatory activities and the White House’s policy agenda.  By contrast, left-leaning groups nearly always (92% of the time) received fee waivers.

In addition to this viewpoint discrimination, the EPA suffered other transparency scandals.  Former Administrator Lisa Jackson infamously used a fictional alter ego—“Richard Windsor”—to conduct agency business on an undisclosed government email account.  And the EPA “misplaced” over 5,000 text messages sent or received by former Administrator Gina McCarthy and other top officials.  The Obama-era EPA also tolerated the widespread use of personal email accounts by high-ranking bureaucrats, a practice that significantly frustrated public access to agency records and proved to foreshadow or parallel other FOIA scandals at the White House Office of Science and Technology Policy, the Department of Defense, and Department of Homeland Security, the Internal Revenue Service, and, most famously, the State Department.  It is noteworthy that, in March of 2015, The Guardian—hardly a right-leaning paper—could seriously ponder: “Is the EPA having a transparency crisis?”

The history speaks for itself: the EPA under Scott Pruitt is not a new or unique threat to transparent government.  The litany of FOIA abuses at the EPA and other agencies under both Presidents Obama and Trump demonstrate that we should fight the tendency to view the problem of FOIA politicization through a partisan lens.  “Sensitive review” matured as a practice in the Obama Administration, and is continuing under President Trump, but there are institutional motivations for any and all bureaucrats, regardless of party affiliation, to frustrate the disclosure of records, particularly if they are embarrassing or raise the specter of media attention.

According to EPA Inspector General reports published in August 2015 and January 2011, the EPA’s FOIA regulations allow political appointees—including the Chief FOIA Officer and authorized disclosure official in the Office of the Administrator—to participate in approving requests and redacting records.  Is it any wonder that an agency follows its own long-established rules for processing requests it deems “sensitive”?  So long as the law gives the agency an opportunity to violate the spirit of the FOIA, the agency will take advantage of that discretion, even if it means violating statutory timelines for responding to requesters.

When Administrator Pruitt directed his staff to involve itself with the disclosure of records, he continued a tradition of obstructing the public’s right to access government information.  He deserves the criticism he has received.  But focusing on Administrator Pruitt’s (or President Trump’s) regulatory agenda, or his personal views on hot-button topics like global warming, obscures the underlying problem and makes it more difficult to reach consensus on how to address the real issues.  The FOIA and implementing regulations, for one, need to prohibit “sensitive review,” or at least provide serious restrictions on its implementation.  And guidance from the Department of Justice should address the troubling aspects that sensitive review can present.  This should be part of a solution that everyone who believes in transparency can accept.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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04/9/2018

Cause of Action Institute Launches Investigation into Agency Use of Instant Messaging Applications

The number of communications devices and platforms has mushroomed in recent years, making communication both quicker and easier. Naturally, these technologies have been incorporated into business and government. The use of instant messaging applications (“IM”) for business communications has become so common that most enterprise software includes IM functionality (for example, Google Hangouts, Skype for Business instant messaging, Slack, etc.).

In response to these developments, the Federal Records Act (“FRA”) was amended in 2014 to codify a new definition of electronic messages.  The FRA now states that electronic messages include “electronic mail and other electronic messaging systems that are used for purposes of communicating between individuals” 44 U.S.C. § 2911. Electronic communications sent or received in the course of agency business—regardless of the method of message delivery—are therefore federal records and must be properly captured, retained, and stored such that they can be searched and reproduced upon request. National Archives and Records Administration (“NARA”) Bulletin 2015-02, “Guidance on Managing Electronic Messages,” makes this explicitly clear.

Unfortunately, recent events have highlighted the failure of federal agencies to properly capture, retain, and store electronic messages, including:

  • five months of missing, and then recovered, text messages between the FBI’s Peter Strzok and Lisa Page related to their official duties,
  • 2016 EPA Inspector General investigation into the use of encrypted text messages,
  • CFPB using encrypted messaging apps, the so-called “Dumbledore’s Army”,
  • IRS not retaining communications through their internal instant messaging system due to a memorandum of understanding with the Treasury Employees Union, and
  • NOAA’s questionable use of Google Hangouts.

It appears incidents of federal agencies neglecting and/or intentionally failing to properly capture, retain, and store electronic messages that are federal records are not isolated or exceptional. In light of this, CoA Institute has launched a broad inquiry into federal agencies’ efforts to implement the 2014 FRA amendments and NARA Bulletin 2015-02. Last week, CoA Institute sent FOIA requests to nearly forty agencies seeking records:

  • regarding policies on the use, retention, and management of electronic (instant) messages;
  • related to implementation of or compliance with NARA Bulletin 2015-02;
  • reflecting the electronic messaging systems installed on agency devices; and
  • reflecting whether the agency has enabled automatic electronic message archiving, indexing, and eDiscovery features on instant messaging platforms in use.

The FRA and Freedom of Information Act are essential to government transparency and accountability and they must be enforced even when—or especially when—government regulations, policies, and practices lag behind the implementation of new technologies. With respect to instant messages, the federal government’s characteristic bureaucratic torpidity bears potentially far-reaching implications for proper oversight of the federal government. With this investigation, CoA Institute seeks to discover whether (and where) government neglect or exploitation of new technologies threatens transparency and accountability.

 

Thomas Kimbrell is a research fellow at Cause of Action Institute.

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03/12/2018

NOAA Records Demonstrate Expansion of Sensitive Review FOIA Procedures

The Freedom of Information Act (“FOIA”) ensures all citizens equal and open access to records of the administrative state.  It should come as no surprise, however, that the Executive Branch has never been thrilled about disclosing its records to the general public.  At various times, the White House has orchestrated efforts to frustrate prompt disclosure of records under the FOIA, and President Trump is no exception.  In its first year, the Trump Administration has expanded the so-called sensitive review process.  In doing so, agencies have denied FOIA requesters their statutory right of prompt access to government records.

Sensitive review refers to the practice of giving certain FOIA requests extra scrutiny, usually because the records they seek could solicit media attention once disclosed.  The sensitive review process may involve an agency’s public affairs team or other communications specialists, and often includes political appointees at the agencies involved.  The process delays and sometimes prevents disclosure of records that the public has a right to see.

Recently, Cause of Action Institute (“CoA Institute”) learned that at least one agency—the National Oceanic and Atmospheric Administration (“NOAA”)—has expanded the sensitive review process by putting FOIA requests from attorneys into a special class.  In some cases, the agency has done this out of fear it would release records that could be used against it in litigation.  These evasive tactics violate the spirit and purpose of the FOIA.  They cannot and should not be tolerated.  Sensitive review of requests based on the identity of a requester can only reflect the Administration’s efforts to limit the disclosure of records, or at least the segment of requester to whom such information is provided, rather than representing any legitimate concern.

Investigating NOAA’s “High Visibility” FOIA Process

For some time now, CoA Institute has been concerned that NOAA may be abusing the sensitive review process to avoid disclosing information it would rather keep hidden.  In one FOIA production from the agency, for example, NOAA used dubious grounds to redact an email and one of its attachments almost in their entirety, as shown below.

One of the two tracking tables attached to this email included a list of incoming requests at NOAA.  NOAA withheld the substantive information concerning those requests—such as the identities of the requesters, the tracking numbers of their requests, and their respective fee category (e.g., representative of the news media)—under attorney-client privilege.  But it is difficult to credit that such benign tracking information would be privileged, particularly when many agencies regularly release FOIA logs containing just this sort of information.

The second tracking table attached to the email reflected NOAA’s contributions to a Department of Commerce-wide effort to track requests pertaining to the Trump Administration’s transition period.  For example, in response to a request from ProPublica, NOAA was unable to locate any records of correspondence with former Trump nominee Todd Ricketts.  Unlike the NOAA-specific tacking table, however, the information about departmental requests was left unredacted in most instances.

Newly Released Records Provide Details about NOAA’s Enhanced Sensitive Review

In an attempt to understand NOAA’s sensitive review practice, on December 11, 2017, we submitted a FOIA request to NOAA seeking access to all records about the agency’s practice of identifying “high visibility” FOIA requests, as well as its tracking of requests concerning the Trump transition.  This week the agency provided an interim production of responsive records, and the records produced are helping us piece together just what the agency considers to be a high visibility request.

As noted, sensitive review refers to the practice of giving certain FOIA requests extra scrutiny, including by bringing political appointees into the review process.  At the Department of Treasury during the Obama Administration, for example, a whole committee of political appointees—along with representatives from the agency’s public affairs, legislative affairs, and general counsel offices—availed themselves of the opportunity to review responsive records and delay disclosures.  In the past, sensitive review has been used to target media requesters and frustrate the release of potentially embarrassing or politically-damaging agency records.  It even prompted an investigation by the House of Representatives Committee on Oversight and Government Reform.

NOAA’s current sensitive review policy, according to one of the recently-produced records, appears to have been formulated in May 2017.  FOIA staff are expected to “[p]rovide the Office of Public Affairs each Thursday afternoon” with “weekly reports listing incoming FOIA requests of interest.”  Weekly meetings are also anticipated to discuss these requests.  The types of requests that elicit agency “interest” include those from the media and those that seek records in the public interest.  But they also include any request “submitted by an attorney.”  Moreover, NOAA’s Office of Public Affairs has the authority to “identify requests of interest warranting OPA review of response determinations.”  Although NOAA’s policy doesn’t require political appointees to insert themselves into the FOIA process, it does appear to represent a worrisome subordination of career FOIA staff to the agency’s communications shop.  That flies in the face of good government.

In our estimation, one of the more troubling aspects of NOAA’s new policy is the agency’s decision to treat FOIA requests from “lawyers” as deserving special scrutiny.  What is the basis for such treatment?  According to one of NOAA’s weekly FOIA reports, CoA Institute—a non-profit organization that is routinely recognized as a news media requester under the FOIA—was subjected to this heightened sensitive review when we requested processing notes for several earlier requests concerning the Antiquities Act.

In the “Comments” column, NOAA FOIA staff noted some alarming details about what it considered important for the Office of Public Affairs to consider:

Regardless of the motivation behind CoA Institute’s, or anyone’s, request, it is illegitimate for an agency to treat a requester differently simply because the agency fears the requester may enforce his rights in a court of law.  FOIA litigation is unique in that there is a tremendous asymmetry in knowledge between the parties about the processing of a request.  That can make it difficult for a requester to challenge agency affidavits defending the adequacy of a search or the use of an exemption.  Courts already routinely defer to such affidavits.  It now seems NOAA wants to fight against anything that could result in the public learning more about the way a request is processed.  Subjecting requests for processing notes to sensitive review could also suggest that NOAA is strategically laying the groundwork for the future application of the attorney-client or attorney work product privileges, namely, by memorializing the agency’s expectation of future litigation—no matter how distant, unreasonable, or disconnected that “expectation” may be from reality.

NOAA’s fear of a “litigation risk” from CoA Institute even prompted the flagging of other requests from unrelated parties about similar topics.

The fear of possible litigation also underlies the agency’s reticence to produce FOIA logs—basically, a type of processing note—when those records implicate subject-matters that could receive media attention.

NOAA continues to process CoA Institute’s December 11, 2017 request, and we have yet to review all the records that have been disclosed thus far.  Many of these records are in Word or Excel format and contain detailed metrics on the performance of NOAA’s FOIA office, including efforts to eliminate the backlog of pending requests.  As we review the available data and begin to receive correspondence reflecting sensitive review deliberations, we will provide additional updates on our website.

Sensitive Review as a Form of FOIA Politicization

The enhanced sensitive review at NOAA is concerning.  But it also confirms a growing suspicion in the news media and the FOIA requester community that the Trump Administration is intentionally increasing the involvement of agency leadership and political appointees in the processing of FOIA requests.  Last December, the Washington Post reported that officials at the Environmental Protection Agency (“EPA”) and the Department of the Interior (“Interior”) had started to “keep closer tabs” on incoming requests for records that could be embarrassing or politically damaging to the Administration.  More recently, a senior career official at the Department of Housing and Urban Development (“HUD”) claimed to have been “barred from handling” requests submitted by the Democratic National Committee because she was perceived to be a “Democrat,” and therefore opposed to the Administration’s interests in limiting the disclosure of embarrassing of politically-damaging information.

As I have explained, the improper interference by political appointees in the administration of the FOIA is hardly new.  It has been ongoing for years regardless of which party controlled the White House and in a variety of federal agencies, including the Department of Treasury, the Department of Housing and Urban Development, the EPA, Interior, the State Department, the Department of Veteran Affairs, the Department of Defense, and the Department of Homeland Security (“DHS”).  (Admittedly, it does seem that DHS has made efforts to limit political appointees’ involvement in FOIA administration.)

To the extent President Trump has sought to avoid transparency and open government—to chip away at the “colossus” of FOIA, as Nate Jones has described—he is following in the unfortunate and inexcusable footsteps of his predecessors.  That action should not go uncontested.  CoA Institute remains committed to holding the White House and every federal agency accountable when they violate the spirit and letter of the FOIA.

Ryan Mulvey is Counsel at Cause of Action Institute

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