Commerce Department Ignores Congressional Mandate to Release Auto Tariffs Report, Citing New OLC Opinion on Executive Privilege

Last year, Cause of Action Institute (“CoA Institute”) filed two Freedom of Information Act (“FOIA”) requests for a copy of the Secretary of Commerce’s final report to the President under Section 232 of the Trade Expansion Act of 1962 regarding the national security impacts of the importation of automobiles.  That report, which must be prepared prior to the imposition of tariffs, is required by law to be published in the Federal Register, subject only to redaction for classified and proprietary information.  After Commerce failed to publish the report, and refused to release it under the FOIA, we filed a lawsuit to compel disclosure. Learn More

Cause of Action Institute Files Appeal with D.C. Circuit to Secure FOIA Access to Internet Browsing History Records

Arlington, VA (Jan. 16, 2020) – Earlier this week, Cause of Action Institute (“CoA Institute”) filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit in Cause of Action Institute v. White House Office of Management and Budget, a Freedom of Information Act (“FOIA”) lawsuit concerning access government officials’ Internet browsing histories.  The appeal seeks to overturn the district court’s determination that such records are outside the scope of disclosure, even when they are created on government-issued computers in the course of official business.  CoA Institute field the underlying lawsuit against the Office of Management and Budget (“OMB”) and the Department of Agriculture (“USDA”) in June 2018.

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Recent FOIA Exemption 4 decision highlights problems with SCOTUS’s holding in Argus Leader

Earlier this year, in Food Marketing Institute v. Argus Leader, the Supreme Court radically altered the scope of Exemption 4 under the Freedom of Information Act (“FOIA”).  Exemption 4 protects from disclosure “trade secrets” and “commercial or financial information obtained from a person [that is either] privileged or confidential.”  At issue in Argus Leader was the precise meaning of the term “confidential.”  Rather than accept the long-standing “competitive harm” standard developed by the D.C. Circuit nearly forty years ago, the Supreme Court instead held that “confidential” meant anything “customarily and actually treated as private by its owner.”  As Cause of Action Institute warned at the time, that “cramped reading” of Exemption 4 “failed to grapple with the historical and contextual meaning” of “confidential” and would “make it more difficult for the media and government-transparency groups to conduct oversight of the often-murky nexus between business and government.”

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USDA Adopts CoA Institute’s Recommendations for Improved FOIA Regulations

The Department of Agriculture finalized a rule today implementing revised Freedom of Information Act (“FOIA”) regulations that incorporates important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency last year.  These changes are a small, but important, step towards more transparent government and proper administration of the FOIA. Learn More

NASA Adopts CoA Institute’s Recommendations to Improve Revised FOIA Regulations

The National Aeronautics and Space Administration (“NASA”) finalized a rule last week to implement revised Freedom of Information Act (“FOIA”) regulations.  That final rule incorporates important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency in May 2019.  CoA Institute’s comment recommended improvements to several aspects of NASA’s proposed regulations that were inconsistent with current statutory guidelines regarding fee reduction classifications and the proper scope of searches for agency records.  CoA Institute also recommended that NASA add a provision to implement the  “foreseeable harm” standard—a new statutory requirement that CoA Institute has been investigating government-wide.  These changes are a small, but important, step towards more transparent government and proper administration of the FOIA. Learn More

Investigation Update: The VA continues to subject certain FOIA requests to “sensitive review,” but the agency is keeping records about the practice secret

Over the past year, Cause of Action Institute (“CoA Institute”) has been investigating the Department of Veterans Affairs for its continued politicization (here, here, and here) of the Freedom of Information Act (“FOIA”).  That politicization takes the form of “sensitive review,” which refers generally to the practice of giving certain FOIA requests extra scrutiny.  Sensitive review usually entails an additional layer of review or “consultation” with interested parties before potentially embarrassing or politically sensitive records are released to the public.  At its best, it almost always causes delay.  At its worst, it leads to intentionally inadequate searches, politicized document review, improper redaction, and incomplete disclosure. Learn More

The EPA bypassed public comment on its new FOIA regulations, which raises some important legal questions

The Environmental Protection Agency (“EPA”) has long struggled with the politicization and abuse of its Freedom of Information Act (“FOIA”) processes.  Indeed, as Cause of Action Institute (“CoA Institute”) has repeatedly argued, the agency has a “terrible track record for anti-transparency behavior”—from the weaponization of fee waivers and the use of undisclosed “alias” e-mail accounts, to the failure to preserve text messages and the creation of special “awareness review” procedures for politically sensitive FOIA requests.  Yet the EPA’s rather poor reputation plunged even further in late June 2019, when the agency published an unexpected direct final rule implementing various changes to its FOIA regulations. Learn More