Litigation Update: Cause of Action Institute Forces Department of Commerce to Release 232 Uranium Report

On the eve of oral argument before the District Court for the District of Columbia, the Department of Commerce says it intends to publish its Section 232 report on the “Effect of Imports of Uranium on the National Security” tomorrow, July 29, 2021, in a just-filed motion:

On July 29, 2021, Commerce intends to publish the Uranium Report on its website and, on August 2, 2021, it intends to publish the report in the Federal Register. Undersigned counsel has been authorized to represent that the Office of the President has agreed with this course of action.

Cause of Action Institute originally filed FOIA requests for the report over two years ago on April 15, 2019, and filed suit on September 10, 2019.

Ryan Mulvey, counsel at CoA Institute:

We are pleased that the Department of Commerce finally decided to provide transparency on this report, but It should not have taken a FOIA lawsuit to force release when the 232 statute requires publishing reports in the Federal Register. 232 reports are paid for by taxpayers and serve an important role in keeping the tariff process transparent.

The remaining issues in the lawsuit include a “policy or practice” claim, which CoA Institute is using to seek judicial review of Commerce’s systematic approach of denying access to Section 232 reports, and the failure of agency to provide the response letter from the Department of Defense.

232 Uranium Report Documents:

More information about CoA Institute’s FOIA litigation for the 232 Auto-Tariff report:

Herring fishermen appeal district court decision upholding industry-killing at-sea monitoring regulations

Washington D.C. – Cause of Action Institute today filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit on behalf of several family-owned fishing companies based in New Jersey, who hope to block a new regulation that would force them to pay for third-party “at-sea monitors.”  That regulation—which was designed by the New England Fishery Management Council and promulgated by the National Oceanic Atmospheric Administration—requires certain boats in the Atlantic herring fishery to carry “at-sea monitors” and at industry’s cost, all without congressional authorization.

Last month, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia granted the government’s motion for summary judgment, ruling federal regulators had statutory authorization to force fishermen to bear the cost of monitoring, regardless of the severe economic impacts and lack of scientific justification.  Judge Sullivan also discounted procedural deficiencies in the government’s rulemaking, including its prejudgment of the legality of industry funding.

Jeff Kaelin, Director of Sustainability and Government Relations at Lund’s Fisheries, Inc., and representative for the New Jersey plaintiffs:

The district court reached an unfortunate decision, providing deference to the government, which is enforcing the industry-funded monitoring program without the statutory authority to do so.  The commercial herring fleet has been over-regulated for years, but with little demonstrated biological benefit to the Atlantic herring resource itself.  Industry-funded monitoring, along with reduced quotas and other burdensome regulations, is forcing some herring fishermen out of business and increasing costs to those who still hope to hang on.  The district court’s decision is likely to perpetuate that trend.  We are grateful for the work Cause of Action Institute has undertaken, and we look forward to pursuing our appeal at the D.C. Circuit.  In the end, we hope the rule of law will prevail.

Ryan P. Mulvey, Counsel at Cause of Action Institute:

We aim to convince the D.C. Circuit that Judge Sullivan’s ruling is contrary to the law and facts.  The federal government has overextended its regulatory power far beyond what Congress authorized.  The Magnuson-Stevens Act simply does not give the government and fishery management councils a blank check to regulate according to their whim. The imposition of industry-funded at-sea monitoring is likely to weigh down an already beleaguered commercial fishing industry.

The herring fishermen filed their lawsuit in February 2020.  Further information is available here and here.

Media Contact: James Valvo, james.valvo@causeofaction.org | (571) 482-4182

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DC Circuit Rejects DOJ Attempt to Use “Non-Responsive” as a Tenth Exemption to FOIA

This week, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of Cause of Action Institute in its challenge to the Department of Justice’s (“DOJ”) attempt to segment records as “non-responsive” in order to avoid disclosure under the Freedom of Information Act (“FOIA”).

The records at issue were DOJ responses to questions from members of Congress known as Questions for the Record (“QFR”). The Circuit shot down DOJ’s argument that it could withhold individual questions and answers as non-responsive within a single QFR document:

DOJ’s position in this case is that each individual question and its corresponding answer within each of the self-contained QFR documents constitutes a separate “record” under FOIA. Resting on this claim, DOJ maintains that if it determined that a particular question-and-answer pairing within a QFR document was unresponsive to Appellant’s FOIA request, DOJ could decline to disclose the material even though none of the material in the QFR document was exempt from disclosure. Though our case law provides for a “range of possible ways in which an agency might conceive of a ‘record,’” we reject DOJ’s approach as an untenable application of FOIA, outside the range of reasonableness.

Unfortunately, the Circuit, while reversing the District Court on standing, dismissed Cause of Action Institute’s second claim challenging to DOJ Office of Information Policy’s guidance on defining a record under FOIA as unripe.

Read more about the decision at Yale Notice and Comment.

Background:

October 30, 2020: Cause of Action Institute files opening brief in DC Circuit appeal over definition of a “record” under the Freedom of Information Act

Feb. 8, 2017: Defining a “Record” under FOIA

Aug. 17, 2016: There is No Tenth Exemption

Cause of Action Institute files opening brief in DC Circuit appeal over definition of a “record” under the Freedom of Information Act

For decades, the Freedom of Information Act (“FOIA”) has provided the public with access to records of the Executive Branch.  Yet the definition of a “record” has never been definitively established.  To be sure, there has been a great deal of litigation over the meaning of an “agency record” (as opposed to a congressional record or a personal record). But the antecedent question of what exactly a “record” is has only recently started working its way up through the courts.  Cause of Action Institute (“CoA Institute”) filed its opening brief today in the U.S. Court of Appeals for the D.C. Circuit as part of its efforts to get some resolution to this important question.

The current debate of the definition of a “record” can be traced back to the D.C. Circuit’s 2016 decision in American Immigration Lawyers Association v. Executive Office for Immigration Review (“AILA”).  The AILA court held that agencies may not use “non-responsive” as a pseudo-exemption to withhold information within an otherwise responsive record.  Unfortunately, the court left the door open to agencies treating that same information as discrete “records.”  Because the court did not provide clarity on the actual definition of a “record,” and merely opined to the possible limits of what a “record” could be, the Department of Justice’s Office of Information Policy (“OIP”) issued guidance purporting to fill that gap.  The legality of that guidance, and its consistency with FOIA, is at the heart of CoA Institute’s appeal.

In its guidance, OIP directs agencies to apply part of the Privacy Act’s definition of a “record” when processing FOIA requests.  That definition, in relevant part, treats any “item, collection, or grouping of information” as a potential record.  Yet OIP goes further and also instructs agencies to define records on a case-by-case basis depending on the subject-matter of an individual FOIA request, as interpreted by the agency.  That sort of subjective understanding of a “record,” which could lead to divergent treatment of the same informational material across the government, or even between components of a single agency, is fatally flawed.

As CoA Institute argues in its opening brief, OIP’s definition is problematic—along with the district court’s failure to invalidate the policy—precisely because the FOIA does define a “record.”  The statutory text, as clarified by Supreme Court precedent, sets out a four-part definition that encompasses (1) any information material, (2) created or obtained by an agency, (3) within an agency’s control when a FOIA request is submitted, and (4) in the format maintained by an agency at the time of a request.  Again, this definition logically follows from the statutory text.

Even if the FOIA were ambiguous, the plain meaning of a “record,” as evidenced by common usage, clearly refers to materials that exist objectively and independent of any given FOIA request.  OIP’s guidance violates this common-sense understanding, just as it violates the well-established legal principle that a requester can only seek disclosure of existing records.  An agency cannot define a “record”—that is, bring it into existence—as part of its efforts to process a FOIA request.  Not only does this confuse a responsiveness review with efforts to search for and identify potential responsive records, but it invites abuse.  Indeed, agencies have already shown their eagerness to treat information formerly withheld as “non-responsive” as discrete records.  That makes a mockery of AILA.  Finally, the Privacy Act, which OIP’s guidance refers to as controlling in the FOIA context, is simply inapt.

Given the confusion in the district court over the correct definition of “record,” it is vital that the D.C. Circuit provide clarity to agencies and requesters alike.  CoA Institute’s argument comports with the statutory text, plain meaning, and existing FOIA caselaw.  OIP’s guidance, if it is allowed to stand, would be a huge blow to transparency and create an incentive for agencies to get even more creative in their efforts to block transparency.

Ryan P. Mulvey is Counsel at Cause of Action Institute.  He is lead counsel in Cause of Action Institute v. Department of Justice, No. 20-5182 (D.C. Cir.), the appeal discussed in this blogpost.  He may be contacted at ryan.mulvey@causeofaction.org.

Family Fishermen Move to Block Industry-Killing At-Sea Monitoring Rule

Herring Fishermen are Fighting Burdensome Regulation, COVID-19, and New, Unlawful Monitoring Requirements to Stay Afloat

Arlington, VA (June 8, 2020) – Cause of Action Institute (CoA Institute) today filed a motion for summary judgement on behalf of a group of New Jersey fishermen, asking a D.C. Federal Court to vacate job-killing fisheries regulations called the “Omnibus Amendment.” CoA Institute filed suit in February to challenge the industry-killing rule, which requires certain boats in the Atlantic herring fishery to carry “at-sea monitors” at their own cost.

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OMB Publishes Proposed Revisions to Outdated FOIA Fee Guidelines Following CoA Institute Lawsuit

The White House Office of Management and Budget (“OMB”) published a notice of proposed revisions to its Uniform Freedom of Information Act Fee Schedule and Guidelines in today’s issue of the Federal Register.  OMB first published the guidelines, which are binding on all agencies subject to the Freedom of Information Act (“FOIA”), over thirty-years ago.  They have never been updated, despite repeated requests from the transparency community, the FOIA Federal Advisory Committee, and the Archivist of the United States.  The much-anticipated revisions aim to improve FOIA administration and ensure more equitable resolution of fee issues across the government.  OMB’s notice comes amid a lawsuit filed by Cause of Action Institute (“CoA Institute”) to force such an update.

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Cause of Action Institute Challenges Commerce’s Withholding of Section 232 Uranium Report, Using Policy and Practice of Deferring to White House Disclosure Directives

Last year, Cause of Action Institute (“CoA Institute”) stepped up its ongoing battle with the Department of Commerce (“Commerce”) over disclosure of Section 232 secretarial reports by filing a lawsuit against the agency for failure to respond to Freedom of Information Act (“FOIA”) requests seeking access to a final report concerning the national-security effects of uranium imports.  This past week, CoA Institute filed its motion for summary judgment, laying out the case for Commerce’s failure to meet its FOIA obligations and exposing the infirmities of the government’s privilege claims.

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