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

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

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

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

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

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

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

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

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

Judge Boasberg’s opinion is available here.

Ryan Mulvey is Counsel at Cause of Action Institute

 

Litigation Update: Cause of Action v. Department of Justice and the House Financial Services Committee’s Attempt to Undermine the FOIA

In July 2017, Cause of Action Institute (“CoA Institute”) sued the Department of Justice (“DOJ”) after the agency refused to produce records under the Freedom of Information Act (“FOIA”) that would have revealed whether the Office of Information Policy (“OIP”) or Office of Legislative Affairs (“OLA”) were involved in implementing a controversial directive from the U.S. House of Representatives Committee on Financial Services.  CoA Institute’s FOIA request, which was filed in May 2017, followed reports that Jeb Hensarling, Chairman of the Financial Services Committee, directed twelve agencies—including, the Department of the Treasury and eleven other entities—to treat all records exchanged with the Committee as “congressional records” not subject to the FOIA.

As a result of litigation, DOJ identified sixteen pages of responsive records.  Eleven pages, which represent communications between an “unidentified Executive Branch agency” and DOJ, were withheld in full.  One additional record—an email between the Office of the White House Counsel and OIP—was partially redacted, but an attachment—a copy of Chairman Hensarling’s letter—was withheld in full.  DOJ defended its treatment of these records by invoking the attorney-client and deliberative process privileges.

Last Friday, CoA Institute moved for summary judgment, rebutting DOJ’s claims and arguing that the agency could not use the attorney-client and deliberative process privileges.  With respect to the White House email and attachment, DOJ failed to establish that an attorney-client relationship existed between the White House Counsel and OIP.  Assuming the requisite relationship did exist, the email still neither revealed private confidences nor solicited legal advice.  It also did not reflect a deliberative or consultative process.  Instead, the email was a literal “FYI”—the sort of informational notice that courts regularly compel agencies to disclose:

DOJ also wrongly withheld the email attachment—a copy of Chairman Hensarling’s letter—because the letter is already in the public domain and, in any case, does not reveal confidential information pertaining to the White House or DOJ.

Communications with the “unidentified Executive Branch agency” similarly cannot be exempt under the attorney-client and deliberative process privileges.  Although these records may contain legal advice on responding to Chairman Hensarling’s directive, they were shared outside of the Office of Legal Counsel, which is the DOJ component responsible for providing legal opinions to the White House and the rest of the Executive Branch.  To maintain attorney-client confidentiality, an agency must not circulate privileged material beyond those officials tasked with providing (or receiving) legal counsel.  Here, by involving OLA, which functions as DOJ’s congressional affairs office and does not serve as an “attorney” to other agencies, the “unidentified” agency waived any expectation of confidentiality.  Finally, DOJ misused the deliberative process privilege because it failed to explain how these inter-agency communications reflected DOJ’s recommendations or opinions or were otherwise non-factual.

Importantly, DOJ also failed to meet its burden under the new “foreseeable harm” standard.  Congress introduced this standard with the FOIA Improvement Act of 2016 to codify the so-called “presumption of openness,” which discouraged the mere “technical” application of exemptions.  The FOIA, as amended, now requires an agency, such as DOJ, to explain how specific records can reasonably be foreseen to harm agency interests.  DOJ failed to provide a satisfactory argument in this case and did not even mention its obligations under the new standard.

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The public deserves to know how, and to what extent, DOJ was involved in formulating and implementing Chairman Hensarling’s anti-transparency policy.  Because Congress is not itself subject to the FOIA, a request for records that have been exchanged with the legislative branch presents unique difficulties.  Nevertheless, the law requires that Congress manifest a clear intent to maintain control over specific records to keep them out of reach of public disclosure.  As I have argued previously, Chairman Hensarling’s directive is ineffective in this respect.  The mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a “congressional record.”  Any deviation from this acknowledged standard for defining a “congressional record” would frustrate the FOIA and impede transparent government.

The real-world implications of these sorts of congressional anti-transparency efforts are hardly imaginary or speculative.  The House Financial Services Committee has already intervened in a FOIA lawsuit to enforce its directive.  (That lawsuit is still ongoing.)  And CoA Institute is involved with a lawsuit against the Internal Revenue Service that involves a similarly overbroad effort by the Joint Committee on Taxation to sweep a range of agency records outside the scope of the FOIA.  CoA Institute has twice joined with other good government groups to express concern over these developments (here and here).  We are hopeful that the courts will put a stop to Congress’s games, and ensure public access to vital records revealing the interaction of the administrative state with the federal legislature.

CoA Institute’s brief is available here.

Ryan Mulvey is Counsel at Cause of Action Institute

Cause of Action Institute Signs Second Coalition Letter Warning of Continued Congressional Interference with the FOIA

Cause of Action Institute signed a letter yesterday, joining a broad coalition of government transparency advocates, warning members of the Bipartisan Legal Advisory Group of the U.S. House of Representatives about the dangers of mounting congressional interference with the Freedom of Information Act (“FOIA”) and, specifically, continued efforts to expand the definition of “congressional records” not subject to disclosure. The letter comes in the wake of the House Committee on Ways and Means’ motion to intervene in a lawsuit filed by American Oversight, a left-leaning government transparency group.

The letter reiterates much of the argument found in a May 2017 coalition letter from government transparency advocates urging Jeb Hensarling, the Chairman of the House Financial Services Committee, to rescind his directive that federal agencies treat any and all records exchanged with the Committee as exempt from the FOIA. As I have previously discussed, the mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not by itself render it a “congressional record.” The law instead requires that Congress manifest clear intent to maintain control over specific records to keep them out of reach of the FOIA.  Chairman Hensarling and the leadership of the Ways and Means Committee are pushing the boundaries of this legal requirement.

Cause of Action Institute continues to investigate Chairman Hensarling’s controversial, and legally dubious, attempt to frustrate public access to records of the Executive Branch’s dealings with Congress, as well as similar efforts undertaken at the Internal Revenue Service. The transparency community and the general public must remain united in protecting the spirit of disclosure and open government promised by the FOIA.

Ryan Mulvey is Counsel at Cause of Action Institute.

CoAI Sues for Records of House Committee Chair’s Urging FOIA Obstruction

Records could shed light on DOJ’s communications with Chairman Hensarling, reveal guidance to agencies

Washington D.C. – Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the Department of Justice (“DOJ”) for records that could reveal whether the agency’s Office of Information Policy or Office of Legislative Affairs was involved with a controversial, and legally dubious, directive from the House Committee on Financial Services concerning the processing of records under the Freedom of Information Act (“FOIA”).  The suit also seeks records of related communications between DOJ and twelve federal agencies under the Committee’s jurisdiction.

In May 2017, CoA Institute filed a FOIA request with the DOJ in response to reports that Rep. Jeb Hensarling (R-Texas), Chairman of the House Committee on Financial Services, directed the Department of the Treasury and eleven other agencies to treat all records exchanged with the Committee as “congressional records” not subject to the FOIA.

CoA Institute Counsel Ryan Mulvey: “Through its Office of Information Policy, the DOJ is responsible for overseeing government-wide compliance with the FOIA.  The DOJ likely would have been consulted by agencies that received Chairman Hensarling’s letter, as well as by the Committee itself when it was considering the directive.  The public deserves to know how and to what extent DOJ FOIA experts have been involved in formulating and implementing this new anti-transparency policy.’”

Because Congress is not subject to the FOIA, a request for records that have been exchanged with the legislative branch can present unique difficulties for an agency.  The law and well-established court precedents require that Congress manifest a clear intent to maintain control over specific records to keep them out of reach of the FOIA.  Chairman Hensarling’s directive is ineffective in this respect.  The mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a “congressional record.”  Any deviation from the acknowledged standard for defining a “congressional record” would frustrate the FOIA and impede transparent government.

CoA Institute’s complaint is available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

Cause of Action Institute Investigates Possible DOJ Involvement with Congressional Frustration of the FOIA

Cause of Action Institute (“CoA Institute”) filed a Freedom of Information Act (“FOIA”) request with the Department of Justice (“DOJ”) today in response to recent reports that Representative Jeb Hensarling, Chairman of the House Committee on Financial Services, directed the Department of the Treasury and at least eleven other agencies to treat all records exchanged with the Committee as “congressional records” not subject to the FOIA.

CoA Institute’s request is narrowly tailored to uncover records that could reveal whether the DOJ’s Office of Information Policy—which oversees government-wide compliance with and policy concerning the FOIA—and Office of Legislative Affairs were consulted by Chairman Hensarling, or others, prior to the release of the controversial FOIA directive. The request also seeks records concerning possible White House involvement and whether agencies sought the DOJ’s advice before responding to Chairman Hensarling.

Federal law requires that Congress manifest clear intent to maintain control over specific records to keep them out of reach of the FOIA. Chairman Hensarling’s directive is ineffective, in that regard.  As I have argued elsewhere, the mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a “congressional record.” And, as set forth in a coalition letter joined by CoA Institute, ignoring this well-established standard would “improperly restrict the ability of the public to use FOIA” and impede transparency and good government.

Ryan Mulvey is Counsel at Cause of Action Institute

Cause of Action Institute Signs Coalition Letter Opposing Congressional Interference with the FOIA

Cause of Action Institute signed a coalition letter yesterday that urged Jeb Hensarling, the Chairman of the House Financial Services Committee, to rescind his recent direction to the Department of Treasury and other agencies to treat all records exchanged with the committee as “congressional records” not subject to FOIA, i.e. the Freedom of Information Act.

As I outlined in a recent op-ed published in The Hill, the mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a “congressional record.”  The law instead requires that Congress manifest clear intent to maintain control over specific records to keep them out of reach of the FOIA.

Chairman Hensarling’s letter employs sweeping, generalized language in an ineffective yet blatant attempt to frustrate public access to records of Congress’s dealings with the Executive Branch.  As the coalition letter explains, such “assertions improperly restrict the ability of the public to use FOIA” and indicate a dangerous departure from a commitment to transparency and good government.

Ryan Mulvey is Counsel at Cause of Action Institute.

The next front in the FOIA War: Congress blocking disclosure of its dealings with the Executive Branch

By Ryan Mulvey, Opinion Contributor

Presidential interference with public access to politically sensitive agency records has been an ongoing fight that seems unlikely to end anytime soon, and now it appears Congress has decided to get into the game.  My organization, Cause of Action Institute (“CoA Institute”), has long been at the forefront of fighting against unlawful obstruction of the Freedom of Information Act (“FOIA”).  Last year, we filed a lawsuit against the Office of the White House Counsel to end the practice of “White House equities” review, which results in the delay of responses to FOIA requests that the administration deems politically embarrassing.  With that lawsuit still ongoing, Congress has taken a page from the White House’s playbook to keep records of its dealings with agencies hidden from public view, too.

BuzzFeed reported last week that Financial Services Committee Chairman Jeb Hensarling (R-Texas) sent a letter to the Treasury Department that directed the agency to treat all records exchanged with the committee as “congressional records” not subject to the FOIA.  Read More