Gone in an Instant: How Instant Messaging Threatens the Freedom of Information Act

New Report: Federal Agencies Violating Federal Law,  
Not Preserving Instant Messaging Records

Arlington, VA (March 16, 2020)Cause of Action Institute (“CoA Institute”) and Americans for Prosperity Foundation (“AFPF”) today released an investigative reportGone in an Instant: How Instant Messaging Threatens the Freedom of Information ActThe report reveals how numerous federal agencies are violating federal records law and guidance from the National Archives by not preserving instant messaging (“IM”) records. Like email in the 1990s, IM’s increasing integration into the workplace is changing the way people do business. In 2014, Congress amended the Federal Records Act to specifically require that electronic messages be retained. Agencies’ failure to preserve records created on IM platforms (Slack, Teams, Hangouts, etc.), which are prevalent in the workplace, threatens to undermine the Freedom of Information Act (“FOIA”) and put much of the federal government in the dark.  

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CoA Institute Commends Bipartisan Group of Senators for Introducing FOIA Bill to Correct the Supreme Court’s Decision on Exemption 4

Washington, D.C. (July 24, 2019) – Cause of Action Institute (“CoA Institute”) commends Senators Grassley, Leahy, Cornyn, and Feinstein for introducing the Open and Responsive Government Act of 2019 (S. 2220), a bill that would correct the Supreme Court’s recent misinterpretation of Exemption 4 within the Freedom of Information Act (“FOIA”).  The bill would clarify that the term “confidential” in Exemption 4 only protects information that, if disclosed, “would likely cause substantial harm to the competitive position of the person from whom the information was obtained.”  Last term, in Food Marketing Institute v. Argus Leader, the U.S. Supreme overturned that long-settled interpretation of the term “confidential.”  The bipartisan bill would re-establish the previous status quo.

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Supreme Court Expands FOIA Exemption 4, Cramping Government Oversight and Marring Text

Washington, D.C. (June 24, 2019) – Cause of Action Institute (CoA Institute) today released the following statement regarding the Supreme Court’s decision in FMI v. Argus Leader, a case considering the scope of Exemption 4 under the Freedom of Information Act (FOIA), which will impact all FOIA requesters including news media, individuals, and government transparency groups:

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CoA urges release of secret 232 auto report in response to POTUS proclamation

CoA urges release of secret 232 auto report in response to POTUS proclamation

Washington, D.C. (May 17, 2019) – In response to the President’s proclamation concerning auto tariffs, Cause of Action Institute (CoA Institute), a nonpartisan government watchdog organization, urged the release of the Department of Commerce’s Section 232 auto tariff report. CoA Institute filed a freedom of information request for the report when it was finalized, and later sued the administration for failing to respond to the FOIA and release the report.

The President’s proclamation responded to the U.S. Department of Commerce Secretary’s final report regarding the Section 232 investigation into the national security impact of the import of foreign automobile and automobile parts.

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

“Today’s proclamation by the President, summarizing the Department of Commerce’s Section 232 auto report, serves as the latest reminder that the public deserves to see this report, and we urge its immediate release. The report was paid for by taxpayers and its recommendations could harm American consumers and businesses. The public should not be kept in the dark about findings in a secret report, and that’s why Cause of Action Institute continues to fight for its release to ensure a robust debate on the merits.”

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Media ContactMatt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

CoA Institute Presents Winning Research Paper at 2019 National Freedom of Information Coalition Summit

On Friday, April 12, Cause of Action Institute (CoA Institute) Counsel Ryan Mulvey joined a panel at the National Freedom of Information Coalition’s (NFOIC) 2019 Annual Freedom of Information (FOI) Summit in Dallas, Texas to present a winning research paper co-authored by Mulvey and CoA Counsel and Senior Policy Advisor James Valvo. The paper presents a comprehensive survey of open records laws and identifies useful trends in how public access to legislative records is regulated at the state and federal levels. Ryan and James’ paper was one of three to be presented on a panel from 18 total submissions for the contest. Their underlying research evolved out of work originally undertaken for an amicus brief filed in the Georgia Court of Appeals.

The paper, ‘Opening the State House Doors’: Examining Trends in Public Access to Legislative Records examines how all 50 states’ FOI laws address the question of access to legislative records. That survey reveals that 38 states provide some form of access to various legislative materials. Only 11 exclude the legislative branch from their public-disclosure laws, whether expressly, by implication, or according to judicial interpretation. The clear trend, in any case, is to construe state FOI laws in favor of public access.

Of the 38 states that provide requesters with at least some basic level of access to legislative records, 14 do so implicitly while the other 24 explicitly allow access to legislative records.

Of the states that explicitly cover the legislature in their FOI laws, there is some diversity in how the branch is included. For example, in two states the law focuses on the nature of the record subject to disclosure. North Carolina defines a “public record” to include materials “made or received” by a “public office,” including that of an elected official. Another 20 states focus on the kinds of government entities that must disclose their records upon request, including nine states that define an “agency” to include the legislature or legislative offices. Finally, in Missouri and Florida, access to legislative records is guaranteed by the state constitution.

Ryan and James identified 14 states that impliedly grant access to legislative records. Ten states do so based on the interpretation of terms defining the governmental entities subject to disclosure. For example, six states use the term “branch,” which is understood to include the legislature. Four states define the sort of record subject to disclosure in such a way to include legislative materials. And in six states, the presence of statutory exemptions—or protections that allow a record custodian to withhold information—only applicable to certain legislative records suggest that the legislature, as a whole, is subject to the FOI statute.

Finally, the survey found that of the 12 states that completely exclude the legislature from their FOI statutes, eight do so explicitly, two implicitly, and two based on judicial interpretation.

In addition to surveying state law, Ryan and James examined the treatment of legislative records under the federal FOIA. Specifically, they discussed the possibility that courts could look more seriously at the availability of records under the control of legislative branch agencies, and they pointed to the positive development in the case law governing the extension of congressional control over records that reflect the interaction of the federal legislature and the Executive Branch.

The full paper can be viewed here. The findings discussed above, and the graphics excerpted from the panel presentation, reflect developments in three states (Missouri, South Carolina, and Michigan) that are not discussed in the paper.

Ryan Mulvey is counsel at Cause of Action Institute. Mallory Koch is a communications associate at Cause of Action Institute. 

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 ContactMatt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

 

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.

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Media ContactMatt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018