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02/9/2017

Kellyanne Conway’s “buy Ivanka’s stuff” comment: wrong, but probably not illegal

Appearing on Fox News this week, Counselor to the President Kellyanne Conway encouraged people to “Go buy Ivanka’s stuff, is what I would tell you . . . I’m going to give it a free commercial here, go buy it today.”  Many government watchdogs, including us here at the Cause of Action Institute, perked up upon hearing this.  There are, of course, very strict rules prohibiting the endorsement of products by government employees.  In light of those rules, Ms. Conway’s comments seem like a clear violation.  Indeed, many attorneys and ethics experts on social media have chimed in.  Chris Lu, former Deputy Secretary of Labor under Obama, tweeted “This is the federal ethics law that @KellyannePolls just violated” and linked 5 C.F.R. § 2635.702. Norm Eisen, a fellow at Brookings, retweeted with the comment, “Exactly right!” Most importantly, Don W. Fox, former OGE general counsel and former acting director, claimed in the Washington Post that “Conway’s encouragement to buy Ivanka’s stuff would seem to be a clear violation of rules prohibiting misuse of public office for anyone’s private gain.” Citizens for Responsibility and Ethics in Washington (“CREW”) just filed a formal complaint about Conway’s conduct, citing § 2635.702.

I too reacted in the same way.  I’m familiar with those OGE rules, and it clearly seemed like Ms. Conway broke the law.  But, upon a closer look, I’m not so sure she was in violation of the regulation cited by Mr. Lu and CREW’s ethics complaint. Here’s why.  The relevant regulation, § 2635.702, bars an “employee” from engaging in product promotion.  5 C.F.R. § 2635.102 defines employee as “any officer or employee of an agency, including a special Government employee.”  So, the next question is: “what’s an agency? Is the White House an agency?”  For that, let’s look at 5 U.S.C. § 105, which reads “For the purposes of this title, “Executive Agency” means an Executive Department, a Government corporation, and an independent establishment.”  Right off the bat, we can cross off “Government Corporation.”  “Executive Department” is defined by an exhaustive list in 5 U.S.C. § 101.  The White House isn’t on there.  That leaves only “independent establishment” as the last potential category.

Unfortunately, whoever wrote the regulation defining independent establishment didn’t do a very good job.  It basically reads that “an independent establishment is an establishment which is not part of an independent establishment.” It’s a horribly unclear and ambiguous definition.  Thankfully, the D.C. Circuit tackled this in Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995).  In that case, the court was trying to decide whether or not the Executive Residence qualifies as an independent establishment.  Here’s the key language:

First, we note that elsewhere Congress has used the term “independent establishment” in distinction to the Executive Residence. Specifically, Congress has authorized “[t]he head of any department, agency, or independent establishment of the executive branch of the Government [to] detail, from time to time, employees of such department, agency, or establishment to the White House Office, the Executive Residence at the White House, the Office of the Vice President, the Domestic Policy Staff, and the Office of Administration.” 3 U.S.C. § 112 (1988) (emphasis added). That Congress distinguished the Executive Residence from the independent establishments, whatever they may be, suggests that Congress does not regard the Executive Residence to be an independent establishment, as it uses that term.

Haddon v. Walters, 43 F.3d 1488, 1490 (D.C. Cir. 1995)

Basically, the court is saying that Congress clearly referred to “independent establishment” and the “Executive Residence” as two separate things.  Right next to it on that same, distinguished list is the “White House Office.” Thus, according to the D.C. Circuit’s reasoning, the White House Office also is not an independent establishment.  Because the White House clearly does not fall into the other 2 covered categories, Government Corporations and Executive Departments, it appears that the regulation cited by many of these commenters, including the former general counsel of OGE, does not cover Kellyanne Conway as Counselor to the President.

Now, this doesn’t excuse what Ms. Conway said.  Her conduct clearly falls short of the standards expected of White House employees working on the taxpayer dime.  It is wholly inappropriate to endorse a product in the fashion she did, especially since she has a relationship with the beneficiary.  But against OGE’s ethics regulations?  Unclear, leaning towards no.

UPDATE, 3.2.2017

Shortly after the above post, we sent a letter to OGE inquiring about what legal authority the agency was asserting over Kellyanne Conway.  After combing both OGE’s letter to Congress and its letter to the White House, we didn’t see any citations that got them around the “independent establishment” problem we discussed in our blog post.

Much to his credit, OGE Director Walter Shaub replied promptly to our letter.  He directed us to 3 C.F.R. § 100.1, which reads “Employees of the Executive Office of the President are subject to the executive branch-wide standards of ethical conduct at 5 CFR part 2635, and the executive branch-wide financial disclosure regulations at 5 CFR part 2634.”

At first glance, one might think this is a problem, as the issue we flagged was statutory and, certainly, a regulation cannot amend a statute.  However, the statute matters because it is incorporated by the regulation to serve as a definition.  That very same agency, therefore, could promulgate another regulation expanding the definition for certain covered actions.

This is the first time OGE, or any authority, for that matter, has cited this part of the regulation, extending coverage to Kellyanne Conway.  While this does not cure the issue of many OGE regulations not applying to White House personnel, as the White House itself notes, it does seem to resolve the matter at hand.

 

Have any questions or criticisms?  Think I might have missed something?  Please give me an e-mail at eric.bolinder@causeofaction.org. I’d love to hear from you.  I’ll try to share and address any appropriate comments in a future blog post.

Eric Bolinder is counsel at Cause of Action Institute

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02/8/2017

Defining a “Record” under FOIA

The Freedom of Information Act has provided the public with access to federal agency records since the mid-1960s.  As hard as it may be to believe, the definition of a “record” is still not established.  There has been a great deal of litigation over the definition of an “agency record” (as opposed to, for example, a congressional record or a personal record), as those are the only types of records that are accessible through FOIA.[1]  But the antecedent question—what exactly is a “record”—has not been litigated.

The U.S. Court of Appeals for the D.C. Circuit recognized this gap in its important decision last year in American Immigration Lawyers Association v. Executive Office for Immigration Review (“AILA”).[2]  In that case, the circuit court held that agencies may not use “non-responsive” as a redaction tool to withhold information within an otherwise responsive record.  I discussed that issue in a previous post titled There is No Tenth Exemption.  The circuit court, however, did not define a “record” in that case.

Cause of Action Institute filed a FOIA request with the Department of Justice (“DOJ”) to determine how it would respond to AILA and how it would attempt to define a “record.”  We asked for an email chain that the agency had previously produced to us with most of the information redacted as non-responsive.  In making this second request, we specifically asked for the entire email chain and drew the DOJ’s attention to the AILA decision.  Instead of removing the offending “non-responsive” redactions, however, the DOJ contended that each email in the chain—and in fact each header of each email—was a separate record.  The agency then withheld those supposedly separate records as “non-responsive.”  Compare the full original here and the full re-produced record here.  This approach makes a mockery of AILA; so we filed suit.  

Today, CoA Institute filed its Cross-Motion for Summary Judgment arguing among other matters that the DOJ’s approach to defining a record is untenable.  The DOJ has taken the position, in recently issued guidance from its Office of Information Policy, that the interplay between the subject matter of the request and the content of agency documents define the “nature of a FOIA record” in response to that request.  The agency’s position, in other words, is that a FOIA record is defined—indeed, that the “record” comes into being—through the process of reading and interpreting a request and then searching for and analyzing agency documents to find those portions that contain responsive information.

As we note in our Cross-Motion (pages 25-28), this approach has several problems.  First, it has no basis in the statute.  Second, it conflicts with the rule that requesters may only seek access to records that are already in existence when the request is submitted.  Third, it means that the same, single document could be one record in response to one request, but ten records in response to another.  Finally, it conflicts with one of the venue provisions in FOIA’s judicial review section, rendering it a nullity.

CoA Institute instead proposed its own definition of a record (pages 22-25) that is based on the statute, harmonizes with existing FOIA statutory and case law, and promotes disclosure.  Our approach takes into account that agencies already have material containing information (whether documents, video files, electronic files, etc.) in their control before a request is submitted, that this material exists in a particular form and format, and that agencies must disclose such material as a unit whenever the informational content is responsive to a request (subject to FOIA’s nine exemptions, of course).  Thus, our “complete and proper definition of a ‘record’ under the FOIA is (1) any material containing information, (2) created or obtained by an agency, (3) within an agency’s control when a request is submitted, and (4) in its full native form and format as maintained by an agency at the time of a request, ‘i.e., as a unit’” (page 25).

We also urged the court to continue the practice of denying agencies any deference to their interpretations of FOIA’s statutory terms (pages 19-21).

Click here for the complete filing.

Click here for There is No Tenth Exemption, a previous post in this series.

Update: On October 10, 2017, the district court found the case was moot and did not reach the underlying issues discussed in this post.

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

 

[1] See Department of Justice v. Tax Analysts, 492 U.S. 136 (1989).

[2] 830 F.3d 667 (D.C. Cir. 2016).

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08/17/2016

There is No Tenth Exemption

The Freedom of Information Act (“FOIA”) provides access to records, not information.  This may seem like a minor distinction but in the FOIA world it can mean the difference between uncovering government wrongdoing and having your request rejected because it was poorly thought out.  The distinction also means that when agencies are conducting a search for responsive records they should not be able to withhold portions of information contained within responsive records, unless that information falls within one of the nine statutory exemptions.  There is no “tenth exemption” that allows agencies to withhold information within responsive records just because that information is non-responsive to the request.

An examination of the statute’s terms confirms this analysis.  The statutory section that empowers requesters to get documents from the government speaks in terms of “records”  not “information.”  FOIA requires “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.”[1]  The agency must search, “manually or by automated means, agency records for the purpose of locating those records which are responsive to a request.”[2]

The statutory language that allows requesters to access “records” is limited by agencies’ ability to withhold portions of those records if one of the nine statutory exemptions applies.[3]  However, the agency may only redact exempt information and any “reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.”[4]  FOIA “does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.”[5]

Taken together, these provisions mean that requesters can access agency records and agencies may only withhold portions of those records if they fall within one of the nine statutory exemptions.  They are not authorized to withhold any other information.

Agencies Attempt to Invoke a Tenth Exemption

It is common practice for agencies to only produce the portions of records that contain responsive information and assert that the remaining portions of the record in which that information is contained is “non-responsive.”  For example, Cause of Action Institute sent a FOIA request to the William J. Clinton Presidential Library seeking records related to efforts by Hillary Clinton store her records at the Library.  In response, the Library sent Cause of Action Institute a quarterly report that the Library filed with the National Archives and Records Administration.  However, the Library withheld almost the entire 18-page report and released only small portions it deemed responsive to the request.  As seen below, the Library used “non-responsive” as a “tenth exemption” to deny access to the full record:

Unfortunately, this practice is all too common.

Recent D.C. Circuit Decision Holds Agency Use of Tenth Exemption Improper

In July 2016, the D.C. Circuit decided American Immigration Lawyers Association v. Executive Office for Immigration Review and held there is “no statutory basis for redacting ostensibly non-responsive information from a record deemed responsive. . . .  [O]nce the government concludes that a particular record is responsive to a disclosure request, the sole basis on which it may withhold particular information within that record is if the information falls within one of the statutory exemptions[.]”[6]  This was an issue of first impression for the Circuit, which provides the leading judicial opinions on FOIA.  Many district courts have permitted this agency behavior.[7]

In this case, the Executive Office for Immigration Review argued that “it was under no obligation . . . to release information that concerned matters unrelated to [the] FOIA request because the information was outside the scope of the request.”[8]  The D.C. Circuit rejected this argument, reasoning that the “sole FOIA provision enabling the government to withhold responsive records is section 552(b), which sets forth the nine statutory exemptions.”[9]  “The statute does not provide for withholding responsive but non-exempt records or for redacting nonexempt information within responsive records.”[10]  “[O]nce an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record—i.e., as a unit—except insofar as the agency may redact information falling within a statutory exemption.”[11]

D.C. Circuit Sets up Next Fight over Definition of “Record”

In deciding American Immigration Lawyers Association, the D.C. Circuit realized that if the statute requires the disclosure of a record as a unit, the amount of disclosure is going to “depend[] on how one conceives of a ‘record.’”[12]  The court did not directly reach that question because it used the agency’s determination that the documents containing the non-responsive redactions were the relevant “records.”  However, in so ruling, the court afforded a troubling amount of deference to agencies.

The Court summarized that unlike the Privacy Act, the Presidential Records Act, and the Federal Records Act, FOIA provides no statutory definition for the term “records.”  The court then looked to the agencies to provide the definition, writing: “Under FOIA, agencies instead in effect define a ‘record’ when they undertake the process of identifying records that are responsive to a request.”[13]  It also afforded some authoritative deference to the Department of Justice Office of Information Policy guidance, which “sets forth a number of considerations for agencies to take into account when determining whether it is appropriate to divide [a responsive] document into discrete ‘records.’”[14]  The court found “the dispositive point is that, once an agency itself identifies a particular document or collection of material—such as a chain of emails—as a responsive ‘record,’ the only information the agency may redact from that record is that falling within one of the statutory exemptions.”[15]

There is no legal basis for a court to afford deference to an agency interpretation of a term in a statute that is not organic to that agency.  Arguably, it is inappropriate for a court to ever provide deference to agency interpretations.[16]  However, the D.C. Circuit has held that because FOIA is not administered by one agency but instead applies across the Executive Branch, “[o]ne agency’s interpretation of FOIA is . . . no more deserving of judicial respect than the interpretation of any other agency.”[17]  Further, because statute provides that judicial review in FOIA is under a de novo standard of review, courts should not be permitting agencies to decide what counts as a “record” when requiring them to release a record as a single unit.[18]

As courts, agencies, and requesters begin to internalize the implications of American Immigration Lawyers Association, the definition of a “record” is increasingly going to determine how much information is released to the public.  Courts should refrain from deferring to agency attempts, should they arise, to segment records into increasingly smaller sizes.

September 21, 2016 Update:  Our prediction that the D.C. Circuit decision in American Immigration Lawyers Association would set up a new fight with federal agencies over the definition of a “record” has come to pass.  CoA Institute sent a FOIA request to the Department of Justice – Tax Division (“DOJ-Tax”) seeking access to a record the agency had previously produced with a series of redactions marked as non-responsive.  Here is the first page of that record as originally produced.

nr81

Instead of removing the improper redactions of information and providing the record in full, as per the holding in American Immigration Lawyers Association, DOJ-Tax broke the larger record into a series of smaller records, even so far as to claim that an email header was a different record than the body of that same email.  The agency then withheld all but one of those “records” as non-responsive.

prod1

Compare the full original here and the full re-produced record here.

No justification was given as to why an email chain, previously provided as a single record, had now been broken up and categorized into distinct records, why an email header containing the sender, recipient, date, and subject of the email, was now considered a record separate from the body of that same email, or why these “multiple” records, all but one of which were redacted in full because they were deemed non-responsive, were provided in response to our FOIA request.

As suggested in the original blog post, the next fight over government transparency will be the increasingly smaller segmentation of records as agencies seek to circumvent the FOIA’s presumption of openness.  Requesters must be vigilant and courts should not defer to agency interpretations of the statutory term “record.”

November 8, 2016 Update:  Cause of Action Institute has filed suit against the Department of Justice on this issue.  The complaint is available here and the exhibits here.

February 8, 2017 Update:  Cause of Action Institute has filed its Cross-Motion for Summary Judgment in this case.  That filing is discussed in Defining a Record Under FOIA.

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

 

[1] 5 U.S.C. § 552(a)(3)(A) (emphasis added).

[2] Id. § 552(a)(3)(D) (emphasis added).

[3] Id. § 552(b)(1)–(9).

[4] Id. § 552(b) (text following (b)(9)).

[5] Id. § 552(d).

[6] Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, No. 15-5201, 2016 WL 4056405, at *1 (D.C. Cir. July 29, 2016), slip op. available at http://coainst.org/2aZCRgT.

[7] See, e.g., Freedom Watch, Inc. v. Nat’l Sec. Agency, 49 F. Supp. 3d 1, 7 (D.D.C. 2014) (“The practice of redacting non-responsive materials from documents produced in response to FOIA requests has been approved by courts in this Circuit.”) (collecting cases).

[8] Am. Immigration Lawyers Ass’n, 2016 WL 4056405, at *7.

[9] Id.

[10] Id. at 8.

[11] Id.

[12] Id.

[13] Id. at 9.

[14] Id.

[15] Id.

[16] See Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It and Should be Overruled, 42 Conn. L. Rev. 779 (2010).

[17] Tax Analysts v. IRS, 117 F.3d 607, 613 (D.C. Cir. 1997) (collecting cases).

[18] 5 U.S.C. § 552(a)(4)(B); Richard J. Pierce, What do the Studies of Judicial Review of Agency Actions Mean?, 63 Admin. L. Rev. 77, 83 (2011) (“[D]e novo review refers to an approach to judicial review in which the court does not confer any deference on the agency[.]”); Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 44 Wm. & Mary L. Rev. 679, 688 (2002) (“[U]nder de novo review, there should be no deference at all.”).

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04/15/2014

James Valvo on the Lars Larson Show 4/14/2014

Cause of Action’s James Valvo talks with Lars Larson about our letters to HUD and HHS Inspectors General asking them to investigate whether HHS violated any laws when HUD coordinated with HHS and the White House in implementing the Patient Protection and Affordable Care Act (PPACA).

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