Shining a Light on Agency FOIA Policies that Contradict the Law

Some agencies have regulations that conflict with the Freedom of Information Act (FOIA), which can lead to confusion for officials and the public, as well as the improper withholding of public information.  For instance, a few agencies still base their definition of a “representative of the news media” on language that is outdated and contradicted by both the FOIA statute and judicial authorities.  The old “organized and operated” standard that certain agencies have left in their regulations can be used to deny preferential fee treatment to nascent or non-traditional news media groups, as well as government watchdog organizations like Cause of Action Institute (CoA Institute).  The current statutory definition, by contrast, is meant to broaden the universe of requesters qualifying for the news media fee category.

In Cause of Action v. Federal Trade Commission,  a monumental decision in 2015 that resulted with an appellate court victory for Cause of Action Institute, the U.S Court of Appeals for the D.C. Circuit struck down the Federal Trade Commission’s outdated and narrow definition of a “representative of the news media” and confirmed the current statutory standard.  The FTC had tried to deny CoA Institute its proper fee categorization and a public interest fee waiver.

In March 2018, CoA Institute submitted a comment to the Millennium Challenge Corporation (MCC), a small agency tasked with delivering foreign aid to combat global poverty, on the agency’s proposed rule revising its FOIA regulations.  Among other things, CoA Institute suggested that the MCC correct its definition of a “representative of the news media.” In July of that year, MCC finalized a rule implementing the recommended revisions and taking a step towards effective and transparent oversight.  CoA Institute has had similar success with FOIA reform at other agencies, including the Consumer Product Safety Commission, Office of the Special Counsel, U.S. Department of Defense, U.S. Agency for International Development, and the U.S. Department of Homeland Security.

This is but one example of the work CoA Institute performs to advance government transparency and protect the rights of the American public, taxpayers and our collective ability to hold our government accountable for its actions.

Matt Frendewey is Director of Communications at Cause of Action Institute.


Millennium Challenge Corporation Adopts CoA Institute’s Recommendations for FOIA Regulations

The Millennium Challenge Corporation (“MCC”) finalized a rule at the end of last week implementing new Freedom of Information Act (“FOIA”) regulations and incorporated important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency in March 2018.  The MCC is a small agency tasked with delivering foreign aid to combat global poverty.

CoA Institute made several recommendations in response to the MCC’s proposed rulemaking.  Most importantly, we urged the agency to remove outdated “organized and operated” language from its proposed definition of a “representative of the news media.”  Such language has been used in the past to deny news media requester status—and favorable fee treatment—to government watchdog organizations, including CoA Institute.  For example, CoA Institute sued the Federal Trade Commission, and took its case all the way to the D.C. Circuit, just to get the agency to acknowledged that its FOIA fee regulations were outdated and that it had improperly denied CoA Institute a fee reduction.

In deciding that case, the D.C. Circuit issued a landmark decision clarifying proper fee category definitions and the application of fees in FOIA cases.  CoA Institute cited this case to the MCC and the agency took heed of the current case law, removing the outdated “organized and operated” standard from its final rule.

CoA Institute also asked the MCC to remove language directing FOIA officials to read agency regulations “in conjunction with” fee guidelines published by the White House Office of Management and Budget (“OMB”) in 1987.  Portions of the OMB guidance, which are actually the source of the “organized and operated” standard, are simply no longer authoritative—they conflict with the statutory text, as amended by Congress, and judicial authorities, including Cause of Action v. Federal Trade Commission.

Continued reliance on the OMB guidelines threatens to cause confusion.  In 2016, the FOIA Advisory Committee and the Archivist of the United States both called on OMB to update its fee guidelines.  CoA Institute also filed a petition for rulemaking on the issue, and is currently litigating the matter in federal court.  Although the MCC has decided not to alter its reference to the OMB guidelines (and did not provide an explanation for rejecting that portion of CoA Institute’s comment), the fact remains that no agency can rely on OMB’s superseded directives.

Since the passage of the FOIA Improvement Act of 2016, CoA Institute has commented on twenty-six separate rulemakings.  Of the twelve that have been finalized, CoA Institute has succeeded in convincing seven agencies to abandon the outdated “organized and operated” standard in favor of a proper definition of “representative of the news media,” including the following:

Some agencies, including the National Credit Union Administration and the Federal Reserve, choose to defer on CoA Institute’s recommendations and have promised to propose further rulemakings in the near future to address outstanding fee issues.

CoA Institute’s successful comment to MCC is another small step in our efforts to provide effective and transparent oversight of the administrative state and, more specifically, to ensure agency compliance with the FOIA.

Ryan P. Mulvey is Counsel at Cause of Action Institute

GAO audit of Office of Special Counsel referrals under FOIA reveals weakness in the statute

An audit report released yesterday by the Government Accountability Office (“GAO”) provides alarming details concerning the lack of referral of cases of wrongful withholding under the Freedom of Information Act (“FOIA”) to the Office of Special Counsel (“OSC”).  Since at least 2008, neither the Department of Justice (“DOJ”) nor any federal court has referred a single case to the OSC so that the agency could investigate whether disciplinary action would be warranted for the arbitrary or capricious withholding of records litigated in court.  The publication of the audit coincided with the testimony of the GAO’s Director of Information Technology Management Issues, David Powner, at a hearing before the Senate Judiciary Committee.

OSC’s Investigatory Role under the FOIA

Congress envisaged a special role for the OSC in policing agency behavior with respect to the withholding of records.  Section 552(b)(4)(F) of the FOIA obliges the OSC to investigate whether disciplinary action is warranted against an official responsible for withholding records if a federal court has (1) ordered the production of those records, (2) assessed reasonable attorney fees and litigation costs against the government, and (3) issued a “written finding” that the case “raises questions whether agency personnel acted arbitrarily and capriciously with respect to the withholding.”

Once these conditions are met in any given case, the Attorney General must refer the matter for investigation to the OSC, and the agency at issue must take any corrective action recommended by the OSC.  If the government fails to comply, a court can punish a responsible official with contempt.  Apart from the FOIA, the OSC also has independent authority under 5 U.S.C. § 1216(a)(3) to investigate most allegations of arbitrary or capricious withholding of records.

No Referrals Have Been Made to the OSC Over the Past Ten Years

After examining various records and interviewing officials at the DOJ and OSC, the GAO concluded that, since 2008, no court orders have issued in a FOIA lawsuit such that referral to the OSC was appropriate.  At the same time, between 2013 and 2016, requesters in at least six cases nevertheless sought a court-ordered referral to the OSC.  In all six cases, the court denied the requests.

The referral provisions of the FOIA are toothless in practice.  According to one source, the OSC has investigated only two possible cases of punishable wrongdoing.  In Holly v. Acree, the OSC concluded that it could not determine the “officer or employee who was primarily responsible for the [wrongful] withholding.”  And in Long v. Internal Revenue Service, the OSC closed its investigation without any public findings.  Furthermore, despite numerous allegations and some instances of field investigation over the years, it does not appear that the OSC has ever initiated a disciplinary proceeding under Section 1216(a)(3).

Judicial decisions likewise exemplify the reticence of courts to refer cases to the OSC.  The judicial branch is already highly deferential to the government when assessing justifications for the treatment of FOIA records.  That deference appears to affect the analysis of whether it is appropriate to issue a “written finding” that an official or employee may have personally acted wrongfully.  For example, in the case of Kempker-Cloyd v. Department of Justice, No. 97-253, 1999 U.S. Dist. LEXIS 4813 (W.D. Mich. 1999), the court acknowledged that an agency failed to act in a timely manner, to conduct adequate searches, or to comply with the FOIA “in good faith.”  On further order, the court also determined the agency was liable for attorney fees and litigation costs.  Yet the court still did not believe there was evidence suggesting the agency acted in an arbitrary or capricious manner.  In a more recent case, Consumer Federation of America v. Department of Agriculture, 539 F. Supp. 2d 225 (D.D.C. 2008), when faced with a motion to refer the case to the OSC after the agency conducted an inadequate search and lost responsive records, the court sidestepped the issue altogether by ordering the agency to file a supplemental declaration confirming its promise—made during oral argument—to revise the process for handling requests for electronic records and to correct the problems that led to the loss of the records at issue.  Countless other examples of judicial refusal to engage with the OSC referral provisions abound.

The FOIA Should Be Strengthened to Hold Agency Officials Responsible for Wrongful Withholdings

As it stands, agency officials are effectively unaccountable for their decision-making under the FOIA.  There is no punishment for an agency when it mishandles a request or forces a requester to file a lawsuit to obtain records or fight wrongful withholdings.  Indeed, it is the taxpayer who ends up footing the bill for the government’s litigation costs.  The individuals responsible for processing requests, therefore, have little incentive aside from their personal commitment to transparency to ensure that agency decision-making is consistent with the law.  Even if a requester prevails in court, he faces the uphill battle of securing attorney fees and recoverable litigation costs, not to mention the tremendous difficulty of obtaining a written finding of arbitrary and capricious behavior on the part of the agency.

The requester community deserves better.  If agency officials knew that they would be held personally responsible for their administration of the FOIA, we would have a more efficient disclosure regime and a more transparent government.  The OSC can and should play an important role here, but the FOIA, as implemented, does not currently facilitate that endeavor.  Congress should undertake efforts to remedy the situation.

Ryan Mulvey is Counsel at Cause of Action Institute

Office of Special Counsel accepts CoA Institute’s FOIA regulation recommendations

The U.S. Office of Special Counsel (“OSC”) published a final rule yesterday to update its Freedom of Information Act (“FOIA”) regulations. In addition to implementing changes required by the FOIA Improvement Act of 2016, OSC adopted various changes recommended by Cause of Action Institute (“CoA Institute”).

Last summer, CoA Institute was one of two organizations to submit a comment to OSC on its proposed regulatory revisions. First, we asked the agency to revise its fee category definition for a “representative of the news media,” which still included outdated “organized and operated” language.  In 2015, the D.C. Circuit recognized this “organized and operated” standard as superseded by statutory amendment in its landmark decision in Cause of Action v. Federal Trade Commission.  Similarly, we suggested—and OSC agreed—that the fee category definition should include a non-exhaustive list of entities that, in light of alternative and evolving news formats, qualify as a news media requester.  Finally, we recommended that OSC add explicit language detailing its records retention obligations for FOIA-related federal records.  On all counts, OSC substantively agreed with CoA Institute’s proposals.

Our successful comment is yet another small step in our ongoing efforts to provide effective and transparent oversight of the administrative state.

Ryan Mulvey is counsel at Cause of Action Institute

Who is watching the watchdogs?

Recently, Cause of Action sent a letter to Congressman Darrell Issa, chairman of the House Oversight Committee. In it, we address specific questions that we have about the efficacy and efficiency of the Office of Special Counsel (OSC).

Over the past few months, Cause of Action has been investigating the events leading up to and surrounding the Hatch Act violation by Department of Health and Human Services Secretary Kathleen Sebelius. Though OSC’s investigation concluded that Secretary Sebelius was guilty of a Hatch Act violation, Cause of Action was concerned that not enough had been done. We were concerned that Sebelius, who was the highest ranking executive branch employee ever to have been found guilty of violating the Hatch Act, had been essentially let off the hook without any real form of punishment and curious about how that had come about.

In essence, OSC is an independent arm of the executive branch that acts as a watchdog for federal employees through investigations and prosecution. Among many other things, the OSC investigates allegations of Prohibited Personnel Practices such as waste of funds, mismanagement, and abusive practices by those in power, as well as Hatch Act violations.

What we found over the course of our investigation was that aside from providing gross misinformation in their report, that OSC ignored other potential violations of the law by both Sebelius and her aide, and that they also failed to report FEC violations—all things that should have been easily uncovered during the course of their investigation.

Our investigation also found that when Sebelius attended a function for Senator Sherrod Brown, she was prepped by HHS staffers and also used HHS funds for her travel. Even though the funds were ultimately reimbursed by the Brown campaign, this raises serious questions not only about Sebelius’ use of taxpayer funds, but also about the efficacy of an OSC investigation.

The HHS debacle aside, OSC also failed to investigate an event at the White House, sponsored by the Democratic National Committee, despite receipt of a letter sent from Chairman Issa to the OSC.

The question is: how effective is the OSC at dissuading employees of the federal government from engaging in Prohibited Personnel Practices if they never conduct thorough investigations? Further, when violations are found, what message does it send to federal employees when investigations do not yield meaningful punishment?

The culture of waste, fraud, cronyism and corruption that seems to have permeated the federal government needs to stop, and without a proper watchdog, who is there to do it?

See the letter to Congressman Issa and our press release for more information.

Press Release: Cause of Action Exposes Negligence and New Hatch Act Concerns at Office of Special Counsel


Cause of Action Exposes Negligence and New Hatch Act Concerns at Office of Special Counsel

Board Designated with Investigating Hatch Act Violations is Rife with Problems

 WASHINGTON – Cause of Action (CoA), a government accountability organization, sent a letter to Chairman Darrell Issa of the House Oversight Committee on Monday outlining new discoveries about Hatch Act violations and internal problems at the Office of Special Counsel (OSC) that warrant investigation.

The letter follows an OSC complaint filed on January 29, 2012 by Cause of Action requesting an investigation into AJ Pearlman, an aide to Secretary Kathleen Sebelius, who committed a Hatch Act violation while accompanying the Secretary during a February 2012 trip. Cause of Action filed the complaint in concert with a complaint to the Federal Election Commission (FEC) concerning the Democratic National Committee’s reimbursement to the government for Secretary Sebelius’s political activity.

What Cause of Action is now revealing is a breakdown of accountability at the OSC on multiple levels:

  • OSC’s Investigation into HHS Secretary Kathleen Sebelius Failed to Disclose a Potential Hatch Act Violation by Sebelius’s Aide AJ Pearlman
  • OSC Did Not Consider that Secretary Sebelius and Her Staff’s Support of Senator Sherrod Brown may Raise Hatch Act Concerns
  • OSC Failed to Investigate Potential Hatch Act Violations Arising from an Event at The White House Sponsored by the Democratic National Committee (DNC)
  • OSC Has Launched a Hatch Act Investigation into Secretary of the Interior Kenneth Salazar, but Will they Conclude that Investigation Before He Leaves Office in March 2013?
  • OSC Lacks Clear Guidelines for Appropriate Disciplinary Action against Federal Employees that Violate the Hatch Act
  • OSC’s Special Counsel Carolyn Lerner Used a Non-government E-mail Account to Conduct Agency Business

Executive Director of Cause of Action Dan Epstein explained the consequences of Cause of Action’s findings:

“The Office of Special Counsel exists, in part, to hold federal government employees to the standards of the law, yet we have found a breakdown of responsibility, ethics, and duty within their own agency.  As the primary Congressional body with jurisdiction over OSC, we are presenting our findings to the House Oversight Committee for their review.  Taxpayer dollars are funding an agency who is failing to execute its duties, and we intend to hold them accountable. The ripple effects of their failures mean that numerous agency employees are potentially getting away with breaking the law.”

The letter and the exhibits can be found here.


To schedule an interview with Cause of Action’s Communications Director Mary Beth Hutchins, contact Jamie Morris,


CoA Letter to Issa on OSC issues

Letter to Issa

Issa Letter Exhibits