ICYMI: President and CEO of Cause of Action Institute John Vecchione joined the Lars Larson Show this past Monday, June 18, 2018. Lars Larson, an award-winning television and radio journalist, invited Vecchione on the show to talk about former FBI Director James Comey’s improper use of a personal Gmail account to conduct agency business revealed in a report from the Department of Justice Office of the Inspector General.
04/18/2018
Senate Overturns CFPB “Guidance” Document
The Senate has overturned a CFPB “guidance” document that was for all intents and purposes a regulation. This repeal was effected by the Congressional Review Act (“CRA”) which allows the Congress to overturn regulations within 60 days of the later of the regulation being sent to Congress or being published in the Federal Register. As I wrote for the Hill in March of last year, the CRA’s evasion of the filibuster invites a deregulatory agenda by the Congress that need not be blocked by partisan divisions or the filibuster. As we noted on this website at that time there are many, many such regulations. With the wise test of a “guidance document” by Senator Toomey more avenues for reform open up.
I have remarked on the threat to the Rule of Law and our Constitutional structure by the CFPB before. One of its previous high-handed regulations has already been removed by a similar use of the CFPB to our applause. The various federal agencies’ attempts to rule by letter and by guidance have been brushed back here and there. But they remain a troubling bureaucratic subversion of the fundamental separation of powers created to protect and empower American liberty.
John J. Vecchione is president and CEO at Cause of Action Institute.
03/22/2018
Supreme Court Limits Gov’t Power to Charge Criminal Penalties for Unknowingly Obstructing the IRS
Washington, D.C. – The Supreme Court this week issued a ruling protecting all Americans from prosecution for vaguely defined tax crimes. In the case of Carlo Marinello, II v. United States, it clarified a broad statute regarding who can be charged with criminal conduct for obstructing the IRS’s administration of the tax code. Cause of Action Institute (“CoA Institute”) filed an amicus curiae brief in support of Mr. Marinello’s petition for Supreme Court review, and another one during the merits stage, urging a narrow reading of the statute to ensure no one could be charged under it without knowing that he is committing a felony.
CoA Institute President John J. Vecchione: “As Justice Breyer noted, the law Mr. Marinello was charged under could be interpreted to make felonies of routine conduct by everyday American taxpayers and business owners, such as failing to report a payment to a babysitter. Without this important decision, sloppy tax filers could be charged with obstruction with just an allegation that the conduct helped the defendant avoid tax liability. We applaud the Court for reining in such broad and potentially abusive prosecutorial authority, and Cause of Action is proud of its efforts in this result.”
Mr. Marinello owned a small courier service in New York. In 2012, the United States obtained an indictment against him under the criminal tax code, arguing that Mr. Marinello could be guilty of corruptly obstructing or impeding the administration of the tax code by performing acts as common as failing to maintain books and records for his small business, failing to provide his accountant with complete information, and discarding business records, all because he did these acts with the goal of not paying taxes. However, the tax code already outlaws tax evasion, and it requires that the government prove a heightened criminal intent—that the defendant acted “willfully.”
During oral argument, the Court showed enormous skepticism towards the Government’s position that virtually any act or omission, no matter how slight, could subject one to felony conviction, even though the particular tax code penalties for those actions are misdemeanors. In the Court’s opinion, Justice Stephen Breyer wrote “Just because a taxpayer knows that the IRS will review her tax return every year does not transform every violation of the Tax Code into an obstruction charge.”
The full opinion can be found here.
For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org.
03/13/2018
CoA Institute President John Vecchione Submits Written Testimony to Senate Judiciary Committee for Sunshine Week
Before The United States Senate Committee on the Judiciary
Hearing on The Freedom of Information Act: Examining the Administration’s Progress on Reforms and Looking Ahead
March 13, 2018
Written Testimony of John Vecchione
President & CEO, Cause of Action Institute
Chairman Grassley, Ranking Member Feinstein, and Members of the Committee, thank you for the opportunity to submit this written testimony about the Freedom of Information Act (“FOIA”), the implementation of the FOIA Improvement Act of 2016, and other issues related to government transparency.
My name is John Vecchione and I am the president and CEO of Cause of Action Institute (“CoA Institute”). We are a nonpartisan, nonprofit government oversight organization committed to ensuring that government decision-making is open, honest, and fair. We use various communication, investigatory, and legal tools to pursue that mission. We believe deeply that in order for a government to be accountable to the people, it must be transparent. To that end, we use the FOIA to gather information and educate the public. But we also police agency behavior under the FOIA, submit regulatory comments on proposed FOIA regulations, and use strategic litigation to bring agencies into compliance with the FOIA and the Federal Records Act.[1]
Today, I would like to address two important topics: the proposed policy of Release to One, Release to All and agencies updating their regulations to reflect statutory changes in the FOIA.
Release to One, Release to All
In July 2016, the country celebrated the 50th anniversary of the FOIA. Congress marked the occasion by passing the FOIA Improvement Act of 2016.[2] In conjunction with signing the bill into law, President Obama announced a series of policies to implement the bill and build on the goal of increasing government transparency.[3] One of those policy initiatives was to learn from the Department of Justice Office of Information Policy’s (“OIP”) Release to One, Release to All pilot program and to work toward all agencies posting their FOIA productions online.
President Obama wrote that this “concept would ensure that all citizens—not just those making a request—have access to information released under FOIA.”[4]
[The President then] direct[ed] the newly established Chief FOIA Officers Council to consider the lessons learned from the DOJ pilot program and work to develop a Federal Government policy establishing a “release to one is a release to all” presumptive standard for Federal agencies when releasing records under FOIA. The Chief FOIA Officers Council [was directed to] examine issues critical to this policy’s implementation, including assessing the impact on investigative journalism efforts, as well as how best to address technological and resource challenges.[5]
President Obama established a “January 1, 2017 [deadline for] the Chief FOIA Officers Council [to] work with the Office of Management and Budget (‘OMB’) to provide further guidance” on this policy.[6]
On August 10, 2016, in a round of pre-publication comments, CoA Institute submitted comments to OMB and OIP that broadly supported the Release to One, Release to All policy and identified areas where explicit guidance language was necessary to prevent abuse of discretion or agency-avoidance behavior.[7] We support the policy “because when an agency produces records under FOIA, it has reviewed those records for release to the public and not just the requester. Proactive disclosure of records may reduce the need for use of FOIA to access information in the first place and thus lessen the burden on FOIA offices throughout the federal government.”[8] Congress has long recognized that frequently requested records should be proactively disclosed by agencies. In the FOIA Improvement Act of 2016, Congress directed that once a record has been requested and released three times, the agency must post the record in its electronic reading room.[9] Release to One, Release to All simply takes this idea one step further and would have agencies release information to the public after the first FOIA request and production.
CoA Institute is concerned that too many exceptions to the Release to One, Release to All policy could undermine the policy’s goal. Namely, in our comments, we highlighted that an exemption for content that is “inappropriate” could be abused “to protect the agency mission, agency head, administration generally, or the president from the political fallout of an embarrassing release.”[10] CoA Institute has been investigating the role political interference plays in the release of information through FOIA,[11] and we urged OIP not to allow such considerations to taint a Release to One, Release to All policy. As part of this project, we recently profiled the National Oceanic and Atmospheric Administration’s practice of applying so-called “sensitive review” procedures to “high visibility” FOIA requests.[12]
We also commented on several others issues as well, including: agency compliance the readability requirements of Section 508 of the Rehabilitation Act, the posting of auxiliary information along with produced documents (such as final determination letters), and recognizing the need for a short delay between releasing information to the requester and making information publicly available in order to safeguard incentives for requesters—particularly news organizations—to make requests in the first place.
In December 2016, OIP issued a request for comment in the Federal Register, seeking input on its draft guidance.[13] The comment period closed on December 23, 2016. President Obama’s January 1, 2017 deadline has come and gone; and, more than a year later, neither OMB nor OIP has finalized the guidance or implemented the policy. OIP also has refused to respond to multiple requests for updates on its process of either finalizing or abandoning the policy. Frustrated by this lack of action, in October 2017, CoA Institute joined with the Sunlight Foundation and filed a petition for rulemaking with OIP and OMB asking those agencies to finalize the Release to One, Release to All policy.[14] We have not received a response.
Release to One, Release to All remains an important opportunity for the government to both increase the amount of government information in the public sphere and also potentially ease the burden on FOIA offices. It is both ironic and unfortunate that the agencies tasked with implementing a transparency policy are being opaque about their plans with regard to the policy. I urge this Committee to press OIP and OMB to finalize and implement Release to One, Release to All.
Agency FOIA Regulations
The FOIA Improvement Act of 2016 required agencies to update their FOIA regulations within 180 days of enactment to reflect the statutory changes.[15] As often happens, most agencies missed this deadline but, as a whole, agencies have made moderate and steady progress in updating their regulations.
There are approximately 120 agencies subject to the FOIA.[16] Although most agencies have their own regulations, some share regulations with another agency; and some entities within an agency, such as an office of inspector general, may have FOIA regulations separate from a parent agency.[17] Therefore, there does not appear to be an exact count of how many FOIA regulations need to be updated with each statutory amendment. According to FOIA Advisor, a website that tracks FOIA news and regulatory developments, since the passage of the FOIA Improvement Act of 2016, approximately sixty-three agencies, or about half, have either proposed or finalized updates to their FOIA regulations.
CoA Institute has been paying particular attention to this process because many agencies still maintain an anachronistic definition of a “representative of the news media,” a category of FOIA requester that is able to access records at a reduced cost. Congress defined the term more than a decade ago in the Open Government Act of 2007.[18] We were embroiled in litigation over this issue when the Federal Trade Commission used the outdated standard that an entity must be “organized and operated” to publish or broadcast news to deny CoA Institute access to records by claiming we did not qualify for reduced fees and demanding we pay a large sum in order to access records. Unfortunately, agencies sometimes try to use fees and fee definitions to deny requesters access to records. In 2015, CoA Institute secured an opinion from the U.S. Court of Appeals for the District of Columbia Circuit holding that the “organized and operated” standard has no place in FOIA administration and that agencies must use Congress’s statutory definition.[19]
Following that decision, CoA Institute has been submitting regulatory comments to agencies when they propose or finalize new FOIA regulations in an attempt to bring those agencies’ regulations in line with the 2007 Act and binding jurisprudence. Over the past few years, we have submitted twenty-four regulatory comments, many focused on agencies’ improper fee definitions.
Relatedly, OMB maintains a three-decades-old guidance document—which the FOIA requires agencies to follow—directing agencies to use the “organized and operated” standard.[20] CoA Institute is currently in litigation with OMB over a petition for rulemaking we submitted urging OMB to update its guidance and conform to the statute.[21] When CoA Institute filed that petition, the improper “organized and operated” standard appeared in the Code of Federal Regulations more than seventy times, including in the FOIA regulations of eleven cabinet-level agencies.[22] While we have been successful in convincing several agencies to conform to the statute,[23] the improper definition of a representative of the news media still appears in dozens of agency FOIA regulations and in OMB’s guidance.
CoA Institute will continue to monitor agency regulatory updates and urge them to bring their regulations into harmony with the FOIA statute. I urge you to raise this issue with OMB and encourage them to update their guidance document.
Conclusion
I want to thank you again for the opportunity to submit this written statement for the record. I look forward to continuing to work with you to secure the public’s right to access documents concerning the public’s business.
A PDF file of the testimony is available here.
[1] See, e.g., Judicial Watch, Inc. v. Kerry, 844 F.3d 952 (D.C. Cir. 2016) (securing decision as co-plaintiff that agency Federal Records Act obligations are not moot so long as agency can still recover records that have been unlawfully removed from the government); Cause of Action v. Fed. Trade Comm’n, 799 F.3d 1108 (D.C. Cir. 2015) (securing decision on proper definition of a “representative of the news media” under FOIA’s fee provisions).
[2] FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538 (2016).
[3] Press Release, The White House, Fact Sheet: New Steps Toward Ensuring Openness and Transparency in Government (June 30, 2016), available at http://bit.ly/2xSReOa.
[4] Id.
[5] Id.
[6] Id.
[7] Letter from James Valvo, Cause of Action Inst., to Hon. Shaun L. S. Donovan, Dir., Office of Mgmt. & Budget, White House, & Melanie Ann Pustay, Dir., Office of Info. Policy, Dep’t of Justice (Aug. 10, 2016) [hereinafter CoA Institute Release to One, Release to All Comment], available at http://coainst.org/2lej2GH.
[8] Id. at 2.
[9] FOIA Improvement Act of 2016 § 2(a); 5 U.S.C. § 552(a)(2)(D)(ii)(II).
[10] CoA Institute Release to One, Release to All Comment at 2.
[11] See Cause of Action Inst., Grading the Government: How the White House Targets Document Requesters (Mar. 18, 2014), available at http://coainst.org/2FpsnBr; Cause of Action Inst., White House FOIA Obstruction, http://bit.ly/2r0hBub (last visited Mar. 12, 2018).
[12] Ryan Mulvey, NOAA Records Demonstrate Expansion of Sensitive Review FOIA Procedures, Cause of Action Inst. (Mar. 12, 2018), http://coainst.org/2tFnLp5.
[13] Dep’t of Justice, Request for Public Comment on Draft “Release to One, Release to All” Presumption, 81 Fed. Reg. 89023 (Dec. 9, 2016); see Draft Mem. for the Heads of Departments & Agencies, “Release to One, Release to All” Presumption: Achieving Greater Transparency by Making More Information Available Online, from Office of Info. Policy, Dep’t of Justice (undated).
[14] See Letter from Alex Howard, Deputy Dir., Sunlight Found. & James Valvo, CoA Inst., to Hon. Mick Mulvaney, Dir., Office of Mgmt. & Budget, White House, & Melanie Ann Pustay, Dir., Office of Info. Policy, Dep’t of Justice (Oct. 31, 2017), available at http://coainst.org/2I6Xkf6.
[15] FOIA Improvement Act of 2016 § 3(a).
[16] See FOIA.gov, Where to Make a FOIA Request, Full List of Agencies, https://www.foia.gov/report-makerequest.html (last visited Mar. 12, 2018) (listing agency FOIA contacts).
[17] See, e.g., 7 C.F.R. pt. 2620 (Department of Agriculture Office of Inspector General maintaining separate FOIA regulations).
[18] See Openness Promotes Effectiveness in our National Government Act of 2007 § 3, Pub. L. No. 110-175, 121 Stat. 2524, 2525 (2007).
[19] See Cause of Action, 799 F.3d at 1119.
[20] See Office of Mgmt. & Budget, Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 Fed. Reg. 10012 (Mar. 27, 1987); 5 U.S.C. § 552(a)(4)(A)(i) (Agency fee schedules “shall conform to the guidelines which shall be promulgated . . . by the Director of [OMB] and which shall provide for a uniform schedule of fees for all agencies.”).
[21] See Cause of Action Inst. v. White House Office of Mgmt. & Budget, No. 17-2310 (D.D.C. filed Nov. 2, 2017).
[22] See Letter from James Valvo, CoA Inst. to, Hon. Shaun L.S. Donovan, Dir., Office of Mgmt. & Budget, at 4 (June 2, 2016) (listing agencies), available at http://coainst.org/2D64Raw.
[23] See Ryan Mulvey, CoA Institute Criticizes the Presido Trust on Flawed FOIA Rule, Cause of Action Inst., Mar. 6, 2018, http://coainst.org/2FolU9M (detailing successful regulatory comments to “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”).
02/7/2018
CFPB’s Constitutionality Problem: Who’s Afraid of the Big Bad Wolf?
Who’s Afraid of the Big Bad Wolf?
Could a dispute over the constitutionality of the Consumer Finance Protection Bureau (“CFPB”) overturn a thirty-year-old Supreme Court precedent and vindicate the late Justice Antonin Scalia in one of his most famous dissents? On the last day of January, the D.C. Circuit issued an opinion on the structure of that controversial independent agency: PHH Corporation, et. al., v. CFPB, No. 15-1177 (D.C. Cir., January 31, 2018) en banc. This opinion, with concurrences and dissents, is two hundred fifty pages long. There is an awful lot to unpack, but this post will only focus on one glaring precedent that jumps out from the Opinion and every concurrence and dissent: Morrison v. Olson, 487 U.S. 654 (1988)
In a quick review, I counted 43 citations of it in the Opinion, 12 in a concurrence and 40 times in the dissents (many of these were to Scalia’s lone dissent). There is only one Justice now on the Court who was on the Court when Morrison was decided. But Justice Kennedy took no part in consideration of the case. Of all the protagonists, only Kennedy and Ted Olson (the Olson in the caption and also counsel for PHH) are still in the picture.
In a nutshell, the majority and the concurrences rely on Morrison v. Olson for the proposition that the “independent” nature of the head of the CFPB is constitutional. Not unreasonably, Judge Pillard and her majority believe that case is binding and it allows a single administrator insulated from at-will dismissal by the President. The dissents believe they have distinguished that case and another older precedent, and the combination of insulation from Congress and from the Executive makes the CFPB different and worse from other agencies whose structures have been upheld in the past. Judge Kavanaugh puts his finger on the shaky foundation upon which the majority builds. In footnote 3 of his dissent he notes:
Recall, moreover, that the independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake and that Justice Scalia had been right back in 1988 to view the independent counsel system as an unwise and unconstitutional departure from historical practice and a serious threat to individual liberty. See Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting) (“this wolf comes as a wolf”); see also Stanford Lawyer 4 (Spring 2015) (quoting Justice Kagan’s statement that Justice Scalia’s dissent in Morrison is “one of the greatest dissents ever written and every year it gets better”). The independent counsel experience strongly counsels against single-Director independent agencies.
Scalia’s famous “called shot” of the trouble such a statute would cause has echoed down the years and is one reason why the Independent Counsel statute was not renewed. It is also telling that when Morrison was decided the renaissance of originalism, textualism and the focus on separation of powers were in their infancy. Now, a generation and a half of scholars and judges have grown up reading Scalia’s dissent. Its most famous passage is:
Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
I have little doubt this case will be before the Supreme Court before long, and Scalia (and Olson) might at long last be vindicated on the nature of the Executive and on separation of powers in the Constitution.
John J. Vecchione is president and CEO at Cause of Action Institute.
02/5/2018
CoA Institute Asks Court to Order Enforcement Action in Colin Powell Email Case
Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed a motion for summary judgment in a lawsuit that seeks to compel Secretary of State Rex Tillerson and U.S. Archivist David Ferriero to fulfill their non-discretionary obligations under the Federal Records Act (“FRA”). Specifically, CoA Institute has asked the court to order Tillerson and Ferriero to initiate an enforcement action through the Attorney General to recover the work-related email records of former Secretary of State Colin Powell from a personal account hosted by AOL, Inc.
“To date, Defendants have undertaken meagre recovery efforts that have proven entirely ineffectual,” argued CoA Institute. “None of Secretary Powell’s work-related email records have been recovered. And Defendants have not proven their fatal loss—the only exception in this case that would excuse their intransigence. Now is the time to involve the Attorney General, the highest law enforcement authority of the federal government, as contemplated and required by the FRA.”
CoA Institute filed its lawsuit in October 2016 after then-Secretary John Kerry and Archivist Ferriero failed to act on CoA Institute’s FRA notice and Freedom of Information Act request. Just last month, CoA Institute successfully defended its claims against the government’s motion to dismiss. In denying that motion, U.S. District Court Judge Trevor McFadden highlighted the State Department’s “anemic” recovery efforts and its seeming disregard for the power of leveraging the law enforcement authority exercised by the Attorney General in recovering government records.
Cause of Action Institute President and CEO John J. Vecchione: “Executive Branch officials have no discretion in choosing when to recover unlawfully removed federal records. For too long, agency leadership—particularly at the State Department—has not been held accountable for its failure to abide by federal record management laws. Secretary Colin Powell conducted official government business on a private email account; records of his correspondence belong to the federal government and should have been retained for permanent preservation. We are confident that the law requires more effort to recover the records at issue, including the initiation of an enforcement action through the Attorney General.”
Background
In September 2016, the House Oversight & Government Reform Committee held a hearing at which then-Under Secretary of State Patrick Kennedy testified that the State Department had undertaken minimal efforts to retrieve the work-related emails of Colin Powell. After learning that Powell no longer had access to his AOL account or its contents, the State Department merely asked Powell to contact AOL to see if anything could be retrieved. Despite a request from the National Archives and Records Administration (“NARA”) to contact AOL directly, the State Department never did so. Ultimately, the agency relied on unreliable hearsay—namely, the reported representations of Secretary Powell’s personal secretary about an apparent phone conversation between someone at AOL and a staff member of the House Oversight Committee—to conclude that no records could be recovered.
CoA Institute’s memorandum in support of its motion can be read here.
01/10/2018
State Department Motion to Dismiss Denied in Colin Powell Email Case
Washington, D.C. – U.S. District Court Judge Trevor McFadden has denied the federal government’s motion to dismiss a lawsuit to compel Secretary of State Rex Tillerson and U.S. Archivist David Ferriero to fulfill their statutory obligations under the Federal Records Act (“FRA”) to recover former Secretary of State Colin Powell’s work-related email records from a personal account hosted by AOL, Inc. Cause of Action Institute (“CoA Institute”) filed the lawsuit in October 2016 after then-Secretary John Kerry and Archivist Ferriero both failed to act on CoA Institute’s FRA notice and Freedom of Information Act (“FOIA”) request.
Although the government argued it had no reason to believe that copies of Colin Powell’s email records still existed and were recoverable from AOL servers, Judge McFadden rejected that conclusion, describing the State Department’s recovery efforts as “anemic,” particularly in light of the fruitful “leveraging” of law enforcement authority in the case of former Secretary Hillary Clinton. “The Defendants’ refusal to turn to the law enforcement authority of the Attorney General is particularly striking in the context of a statute with explicitly mandatory language,” Judge McFadden opined. “[T]here is a substantial likelihood that [CoA Institute’s] requested relief would yield access to at least some of the emails at issue.”
Cause of Action Institute President and CEO John J. Vecchione: “Agencies must take their responsibility to secure federal records seriously. For too long, agencies have allowed federal employees to use personal email accounts without ensuring those records are recovered and maintained in accordance with the law. We are encouraged that the court recognized that agencies must do more to recover lost records.”
In September 2016, the House Oversight & Government Reform Committee held a hearing at which then-Under Secretary of State Patrick Kennedy testified that the State Department had undertaken minimal efforts to retrieve Colin Powell’s work-related email. After learning that Powell no longer had access to his AOL account or its contents, the State Department merely asked Powell to contact AOL to see if anything could be retrieved. Despite a request from the National Archives and Records Administration (“NARA”) to contact AOL directly, the State Department never did so. Ultimately, the agency relied on unreliable hearsay—namely, the reported representations of Colin Powell’s personal secretary about an apparent phone conversation between someone at AOL and a staff member of the House Oversight Committee—to conclude that no records could be recovered.
Following yesterday’s ruling on the motion to dismiss, the government Defendants must now either comply with their non-discretionary obligations under the FRA, which requires them to initiate action through the Attorney General to recover unlawfully removed records, or they must proffer new evidence to prove the “fatal loss” and irrecoverability of Colin Powell’s email records from AOL servers.
Judge McFadden’s opinion can be accessed HERE.
For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org.