Cause of Action Institute (CoA Institute) received an interim response yesterday from the General Services Administration (GSA) on a Freedom of Information Act (FOIA) request that suggests the agency is deliberately stonewalling the release of a White House directive instructing agencies on how to respond to congressional oversight requests. Records released by the agency also suggest that the GSA has implemented a “sensitive review” FOIA process by which news media requesters are subject to an extra layer of pre-production review.
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cause confusion by directing agency staff to interpret the FOIA statute and GSA’s implementing regulations in light of outdated fee guidelines published by the White House Office of Management and Budget (“OMB”).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issued a landmark decision in Cause of Action v. Federal Trade Commission clarifying that OMB’s definition had been superseded by Congress.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
03/22/2018
White House Directive on Congressional Oversight Requests Classified as “Presidential Record,” Not Subject to Disclosure under the FOIA
A report published earlier this month by the General Services Administration (“GSA”) Inspector General (“IG”) provides new and illuminating, as well as concerning, details about the White House’s directives to agencies for responding to congressional oversight requests from Democratic legislators and other individual members of Congress. The IG report confirms that during the first seven months of the Trump Administration, the GSA implemented “a series of . . . unpublished policies that effectively amended” its procedures for handling congressional communications, just as the press and transparency community alleged. The report also concludes that the GSA’s latest published guidance, which was released in July 2017, is ambiguous because it does not reflect oral policies still in force and cites to a controversial May 2017 Department of Justice Office of Legal Counsel (“OLC”) opinion that the White House has publicly rejected. Most alarmingly, the IG report identified the underlying written basis for the GSA’s “oral” policy as a White House-created document, which is marked “presidential record” and is therefore “excluded from public disclosure under the Presidential Records Act.”
Cause of Action’s Investigation into the GSA Nondisclosure Policy
For the past year, Cause of Action Institute (“CoA Institute’) has been investigating rumors—now confirmed by the GSA IG—that the White House is directing federal agencies to ignore congressional oversight requests from Democratic legislators and individual Members who are not committee chairmen. Various reports in the media (here and here, for example) have detailed contentious interactions between congressional staffs and employees at the GSA and the Office of Personnel Management (“OPM”). According to some sources, White House attorney Uttam Dhillon is responsible for instructing agencies “not to cooperate” with record requests from the minority.
CoA Institute filed a Freedom of Information Act (“FOIA”) request with the GSA in an effort to verify what the Trump Administration’s actual policy might be. We asked for records concerning the “new policy” cited by the GSA’s Acting Administrator in testimony before Congress. We also asked the GSA for records reflecting directives or guidance originating with the White House. When the GSA finally provided its response, it left much to be desired. The GSA only released two documents: a February 20, 2015 order on congressional and intergovernmental inquiries, which is now obsolete, and an April 15, 2009 White House memo that CoA Institute already had made publicly known in June 2013.
We appealed that final determination, which prompted the GSA to release two additional records created during the Trump Administration. One of those records, a copy of the agency’s “updated Agency policy,” also known as GSA Order ADM 1040.3, was remarkable. As I discussed in a September 2017 op-ed in The Hill, although the White House had by then disavowed the OLC opinion letter as a statement of government-wide policy following harsh criticism by Senator Chuck Grassley, GSA Order ADM 1040.3, which is dated July 24, 2017, expressly cites to the OLC opinion as the GSA’s—and, presumably, the White House’s—official policy.
We then wrote to the GSA seeking public clarification, but that request went unanswered.
Our efforts to investigate OPM have been less fruitful. Last month, the agency responded to our FOIA request by disclosing a single email linking to the OLC opinion, but without further details concerning the opinion’s implementation or continued relevance. Our appeal challenging the adequacy of OPM’s search efforts, as well as its redaction of the responsive email, is pending.
The GSA’s Confusing Use of “Oral” Policies for Nondisclosure
The IG’s report goes into significant detail describing the evolution of the GSA’s nondisclosure policy under President Trump, but a few key findings stand out:
- The GSA developed a series of “oral” policies that “effectively amended” the GSA’s published procedures for dealing with Congress. These policies were formulated by the agency’s Senior White House Advisor and Acting General Counsel and disseminated throughout different agency components through “small in-person meetings,” “telephone calls,” and “hallway conversations.” This sort of official but unwritten policy development violated the GSA’s “internal policymaking directives.”
- This “oral” policy was continually modified. In March 2017, for example, the GSA decided to permit the disclosure of publicly available information or records that would otherwise be available under the FOIA to a non-congressional requester. At this point, the GSA’s FOIA office started to process certain requests before providing records to the congressional affairs office for final release. These changes were based on “guidance”—presumably, written—from the White House.
- In another instance, the GSA started to treat congressional requests under the “Seven Member Rule” as seven individual requests, thereby avoiding mandatory disclosure as required by 5 U.S.C. § 2954. This development was prompted by Ranking Member Elijah Cummings and other Democrats on the House Oversight Committee investigating the Trump Old Post Office lease.
- Once the GSA’s FOIA office started processing congressional requests, agency employees were unsure whether the FOIA’s procedural safeguards—such as the right to file an administrative appeal—applied.
- In one remarkable case, despite instructions from Chairman Jason Chaffetz of the House Oversight Committee to produce agency records to both the Majority and Minority staffs, the GSA intentionally neglected to do so. A senior agency advisor reported to the GSA White House Liaison and Senior White House Advisor that the “cc to [Ranking Member] Cummings” had been “take[n] off” the response to Chairman Chaffetz.
- The IG concluded that GSA’s nondisclosure policies did not contain vital whistleblower protection language required under federal law. Although the GSA has contested the IG’s interpretation of the law and its application in this context, the agency nevertheless agreed to change its published policies to include explicit whistleblower protection language.
The “Presidential Record” Underlying the Ongoing Problem
On May 19, 2017, the White House Office of Legislative Affairs provided the GSA with some “written guidance” on congressional oversight requests. This guidance apparently reflected the “oral” policy that had already developed at the GSA, which limited disclosures for non-chairmen to publicly available or publicly accessible records. This policy, and the underlying White House guidance, were the basis for the GSA Acting Administrator’s testimony before Congress. And it is this guidance that was marked as a “presidential record,” thereby removing it from access under the FOIA.
Continued Uncertainty about the GSA’s Actual Policy
According to the IG, GSA Order ADM 1040.3 is ambiguous because it does not reflect the unwritten policies that have remained in place at the GSA as late as December 2017, as reported by some officials. Indeed, two weeks after the order’s publication, and after the White House rejected the OLC opinion, the GSA’s Acting Commissioner for Public Buildings, in testimony before Congress, reiterated the GSA’s practice of responding only to committee chairmen. He intimated that this was “in line with the current Administration’s policy on responding to oversight questions.”
Ultimately, the lesson here is that unwritten policies, besides being bad from a transparency perspective, lead to confusion and inconsistency. The GSA IG concluded that many high-ranking officials at the GSA never fully understood the actual policy was for responding to congressional requests. Nor could they answer vital questions: What was the legal basis, if any, for the GSA’s policy? What was an “oversight” request? Were congressional members in their individual capacity really subject to the FOIA with all of the statute’s procedural safeguards? What role did the White House have in formulating the policy? Was it agency-specific, or indicative of a wider, government-wide policy change?
In response to the IG’s revelations, the GSA has agreed to remove any reference to the OLC opinion in Order ADM 1040.3. But the agency still insists on qualifying its commitment to processing disclosure requests from individual members based on unidentified “longstanding agency and Executive Branch policies.”
CoA Institute will continue to investigate this matter and the extent to which “oral” policies have influenced the processing of congressional oversight requests at other agencies. In the meantime, we have submitted a new FOIA request to the GSA, explicitly seeking the so-called “presidential records” that were the basis for the GSA’s unwritten policies. It is not clear why the Presidential Records Act should even apply in this instance.
Ryan Mulvey is Counsel at Cause of Action Institute
02/22/2018
Investigation Update: OPM Provides Deficient FOIA Response on Congressional Oversight Policy
For the past year, Cause of Action Institute (“CoA Institute”) has been investigating rumors that the Trump Administration is directing federal agencies to ignore congressional oversight requests from Democratic legislators. Various reports (here and here), which detail contentious interactions between congressional staffs and employees at the General Services Administration (“GSA”) and the Office of Personnel Management (“OPM”), allege that the directive “not to cooperate” with individual Members’ records requests was originally delivered by Uttam Dhillon, Special Assistant to the President. The earlier issuance of an opinion letter by the Department of Justice’s Office of Legal Counsel seemed to corroborate these press reports.
As I discussed in a September 2017 op-ed in The Hill, the Administration’s actual congressional oversight policy remains ambiguous. On July 20, 2017, the White House disavowed the OLC opinion letter as a statement of government-wide policy following severe criticism by Senator Chuck Grassley. Yet records received by CoA Institute under the FOIA suggest that either the OLC opinion is still in force or the White House has yet to uniformly apply its actual policy. For example, following our successful appeal of a GSA FOIA response, the agency disclosed GSA Order ADM 1040.3, dated July 24, 2017, which expressly states that the OLC opinion remains the agency’s—and, presumably, the Administration’s—official policy. Our request for public clarification has gone unanswered.
Now, a recent FOIA response from OPM only confuses the matter further. As part of our investigation, CoA Institute sent a FOIA request to OPM seeking access to various records concerning the agency’s policies or procedures for handling congressional oversight and records requests. We also requested copies of records evidencing White House directives on pre-production consultation or review of requests from Congress or under the FOIA. OPM was only able to locate a single email linking to the OLC memo, but without any further details concerning its implementation at the agency, let alone its continued relevance.
Like the GSA’s initial failure to locate responsive records, OPM’s response is curious because multiple media reports have established that Jason Simmons, OPM’s then-Chief of Staff, directed the agency’s congressional liaisons to process only those oversight requests co-signed by Republican committee chairmen. Yet no such directive was located and disclosed. Moreover, with respect to the records that were released, OPM withheld the names and email addresses of its employees. It is therefore unclear who at the agency was reviewing the OLC opinion letter or for what purposes. We have filed an appeal challenging the adequacy of OPM’s search efforts, as well as its withholdings under FOIA Exemption 6. If the agency were to undertake a supplemental search, some much needed clarification could be forthcoming.
Ryan Mulvey is Counsel at Cause of Action Institute
08/13/2012
Federal Times: Dan Epstein: Ethics office audit of GSA fell far short
Epstein: Ethics office audit of GSA fell far short
By Dan Epstein
When reports surfaced that the General Services Administration had spent almost $1 million on a Las Vegas conference, Congress and the media demanded accountability. This blatant misuse of taxpayer funds is egregious enough on its own, but Cause of Action’s recent investigation shows that the spending spree could have been prevented and should have been stopped by those with authority to monitor the agency.
The Office of Government Ethics, designed to oversee ethics programs for all executive branch agencies, evaluated GSA when it was planning the 2010 Western Regional Conference. OGE’s June 2010 investigation ended with a letter praising GSA for its ethics policies and practices and described the agency’s ethics program as “employing a number of what OGE [considered] model practices.” Now, knowing what we do about the GSA’s spending at the time, those statements, even the entire investigation, are laughable, if not absurd.
Not only did OGE overlook GSA’s shopping spree, but it failed to address known risk factors that, if corrected, could have prevented the scandal. Those factors included the fact that there was no designated agency ethics officer at GSA for nearly four years. Also, there was evidence that an alternate DAEO was spending “less than 25 percent of her time on ethics-related duties.”
If the officers charged with monitoring ethics compliance are nonexistent or spending their time on other endeavors, why did OGE not intervene? Did OGE inform GSA Inspector General Brian Miller immediately? And, as House Oversight Committee Chairman Darrell Issa pointed out, why didn’t Miller inform Congress about the misfeasance earlier?
Lastly, of what value is OGE in overseeing agency ethics? Inefficiency in oversight by OGE is a classic example of how government bureaucracy fails to solve problems.
In response to our investigation, OGE told The Washington Post: “Laws and regulations regarding appropriations, travel, personnel and government contracts are administered by a variety of agencies and are outside OGE’s purview. OGE is not an investigatory agency but routinely works closely with inspectors general.” If OGE works closely with IGs, why didn’t OGE notify Miller on Nov. 2, 2010, about the problems with GSA instead of stating things were aboveboard?
Moreover, the notion that OGE doesn’t have investigatory authority over federal ethics is misleading, as OGE is statutorily mandated to conduct ethics audits. Indeed, given President Obama’s ethics pledge — his first act of office — perhaps pleading ignorance is the only appropriate response for an Office of Government Ethics in the time of the allegedly most transparent government in history.
OGE’s failure to deny our findings, and instead dodge responsibility, was expected by Cause of Action, especially after another Obama-era entity, the Council of Inspectors General for Integrity and Efficiency, similarly pleaded no-contest to responsibility for inspecting how the government responds to waste. Given the chorus of do-nothing bureaucrats, Cause of Action was pressured to send a letter to the president asking him to have the Office of Management and Budget consider whether OGE’s sole authority over the standards of ethical conduct should be transferred to the IGs, who have the resources and independence to address waste, fraud and mismanagement.
IGs have the infrastructure and personal knowledge of their respective agencies to properly audit violations of the Standards of Official Conduct, but they lack authority to enforce these standards. By transferring this authority from OGE, which is wasting taxpayer dollars performing perfunctory investigations, and shifting responsibility and oversight to the IGs, needless bureaucracy is cut away for one system, one set of expectations and one set of enforcement.
Dan Epstein is executive director of Cause of Action, a nonpartisan government accountability organization in Washington.
08/9/2012
OGE Response Proves Need For Restructuring Of Ethics Oversight
On August 6th, Cause of Action released a memorandum on our recent investigation into the Office of Government Ethics (OGE) and their failure to properly review the ethics program of the General Services Administration (GSA). Our investigation found that the OGE approved the ethics program of the GSA just three days after the now infamous Vegas conference that cost taxpayers $822,751. We also noted that there were risk factors brought to the attention of OGE officers about GSA prior to this 2010 ethics report.
The OGE response to our findings was a claim that they are somehow not responsible for overseeing the GSA misconduct. Specifically, an OGE representative claimed, “Laws and regulations regarding appropriations, travel, personnel, and government contracts are administered by a variety of agencies and are outside OGE’s purview. OGE is not an investigatory agency, but routinely works closely with Inspectors General”.
The OGE didn’t contest the validity of our fact-finding or analysis, but merely claimed they are somehow not responsible for detecting these particular violations. The fact that OGE doesn’t dispute our conclusions and seems to shift responsibility to the Inspector General provides support for our request that President Obama and the Office of Budget Management consider transferring ethics oversight duties to the agency inspectors general.
As the chart below notes, OGE is responsible for a wide variety of ethics-related matters. Clearly an audit of the GSA Ethics program should have taken into account the warnings that the OGE previously received. Furthermore, if the OGE is unable to truly discover these violations and are instead dependent on the Inspectors General, then would it not make sense to shift ethics oversight duties to the same Inspectors General that have the necessary investigative abilities? This is precisely what we asked in our letter to President Obama last Thursday.
Government agencies must be held accountable for their waste, fraud and mismanagement. It makes no sense to have a mechanism in place that allows for an agency to be given a clean bill of health for its ethics program just days after a huge ethics violation. Taxpayers deserve a more efficient system that will prevent this type of disaster in the future.
08/6/2012
Washington Post: GSA’s ethics program approved just days after scandal-plagued conference
Read the full story here. Washington Post
The letter and other documents were obtained through a Freedom of Information Act request made by Cause of Action, a nonpartisan government oversight group.“Specifically, we found that the [ethics] program was meeting the objectives for each of the required elements: financial disclosure, training, and advice and counseling. In addition, GSA’s ethics program has been enhanced by employing a number of what OGE considers to be model practices,” according to the OGE report.In January 2010, Leigh Snyder, an ethics expert on Zemple’s staff, raised concerns over the GSA’s history of controlling conflicts of interest, according to the FOIA documents.Snyder cited a high agency official’s involvement in the Jack Abramoff lobbying scandal and with former administrator Lurita Doan, who resigned in 2008 amid questionable contracting practices.“GSA’s mission and history of high-profile ethics violations make it susceptible to heightened public scrutiny,” Snyder wrote in the memo. “As such, GSA’s ethics program should be regularly reviewed to ensure it runs effectively.”This spring, Miller released a scathing report on waste and abuse in relation to the Las Vegas conference, which cost more than $800,000. The Justice Department also is investigating.“It is peculiar that Patricia Zemple ignored her ethics officer’s memorandum,” said Daniel Epstein, executive director of Cause of Action…”