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03/8/2018

DHS Fails to Locate Records Concerning Compliance with Federal Records Act over Private Web-based Email Accounts

Cause of Action Institute (“CoA Institute”) filed a Freedom of Information Act (“FOIA”) appeal with the Department of Homeland Security (“DHS”) yesterday, challenging the adequacy of the agency’s search for records concerning the use of private web-based email accounts by former DHS officials, as well as efforts to recover federal records from those officials’ accounts, as required by the Federal Records Act (“FRA”).  Although DHS disclosed two records in response to our request—namely, a letter from the National Archives and Records Administration (“NARA”), which expressed concern over the possible alienation of federal records, and DHS’s response to NARA—DHS’s repeated representations in federal court demonstrate the existence of countless other responsive records.

High-Ranking DHS Officials Received “Waivers” to Use Private Web-based Email Accounts

In July 2015, Bloomberg reported that then-Secretary Jeh Johnson and at least twenty-eight other senior officials at DHS were granted special permission to used private web-based email accounts—such as Google and Yahoo—to conduct official business.  These “waivers” were exceptions to an agency-wide ban on the use of private email that was imposed in April 2014.  Agency insiders admitted that the practice of issuing such waivers was a “national security risk.”  As reported by Politico, DHS ended its use of waivers, but the agency still faced numerous FOIA requests—and a lawsuit brought by Judicial Watch—from those seeking access to the work-related records created or received on the private web-based email accounts.

CoA Institute’s Initial Investigation into the DHS Webmail Waivers

On September 11, 2015, CoA Institute submitted a FOIA request to DHS for all agency records maintained on Secretary Johnson’s—or any other official’s—private web-based email account.  We also sought records concerning the DHS webmail waiver regime, including policies on how waivers were granted or guidance on record retention that may have been provided to waiver recipients.  In response to the request, DHS provided a substantial number of records concerning the actual processing of waivers, but it failed to produce any official correspondence from the private accounts.  Although we appealed that determination, DHS upheld the adequacy of its search, even though it had openly admitted in court to having control over actual responsive records.  A federal district court judge even issued a preservation order to ensure that former officials would continue to cooperate with recovery efforts under the Trump Administration.

Exploring DHS’s Compliance with the Federal Records Act

Armed with the knowledge that DHS was working to recover potential federal records from Secretary Johnson’s private web-based email account, as well as the accounts of three other former officials, CoA Institute filed two additional FOIA requests on June 1, 2017.  We asked both DHS and NARA to disclose records concerning NARA approval for the practice of issuing webmail waivers, as well as records reflecting the agencies’ compliance with their FRA obligations.  For example, we wanted to know whether DHS had involved the Attorney General in recovery efforts, or whether anything had been done to recover records from the other twenty-five webmail recipients that were not the subject of Judicial Watch’s ongoing FOIA litigation.

DHS could only locate two responsive records.  The first was a February 22, 2017 letter from NARA, which was prompted by the Judicial Watch lawsuit and raised concerns about the possible alienation of federal records.  NARA asked DHS to prepare a report on its recover efforts, along with a description of the “safeguards” that had been implemented to prevent the future alienation of records from private web-based email accounts.  The second responsive record was DHS’s Mary 19, 2017 response to NARA, in which the agency described its ongoing communications with Secretary Johnson and others to facilitate the return of potential federal records.  DHS claimed it was unable to locate any other responsive material.

This is an absurd determination.  DHS has repeatedly described its ongoing efforts to comply with the FRA and to ensure that work-related emails from the private web-based email accounts are returned to the agency, at least with respect to the four officials identified by Judicial Watch.  Whither the records of such communications?  CoA Institute’s request to DHS was intentionally broad and sought to capture, among other things, “any correspondence from a webmail recipient indicating that he or she no longer ha[s] possession of DHS records in a personal email account, or that he or she ha[s] forwarded them to a DHS-hosted email account, and any records evidencing agency efforts to confirm the truth of such representations.”

As for our request to NARA, that agency has failed to provide any sort of interim response, let alone a final determination, despite the fact it had granted CoA Institute’s FOIA request expedited processing.

The Lack of Transparency in Agency Compliance with the Federal Records Act is Troubling

The Obama Administration established a pattern of high-ranking officials using personal email accounts to conduct agency affairs, thereby potentially ignoring federal laws that require the preservation of records for future disclosure to Congress and the American public.  The lack of transparency with respect to the use of private email is concerning enough; the lack of transparency over efforts to remedy abusive and unauthorized use of personal email, and to return records to agency custody, is even more worrisome.  Government-oversight organizations such as CoA Institute have increasingly been forced to seek judicial relief to ensure agency compliance with the FRA, and this tendency is only likely to increase given the pace of technological development.

DHS seems to be working extra hard to keep secret whether it has fully met its FRA obligations.  It was certainly embarrassing for the agency when its practice of issuing waivers that allowed agency leadership to use private web-based email accounts came to light.  It will be even more embarrassing if evidence surfaces to show that DHS is still dragging its feet to recover those records, as required by law.

Ryan Mulvey is Counsel at Cause of Action Institute

 

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03/6/2018

CoA Institute Criticizes the Presidio Trust on Flawed FOIA Rule

Cause of Action Institute (“CoA Institute”) submitted a comment today to the Presidio Trust concerning the agency’s publication of a flawed FOIA rule intended to revise the agency’s Freedom of Information Act (“FOIA”) regulations. Congress created the Presidio Trust in 1996 to oversee and manage interior lands of The Presido, a national park on the northern tip of the San Francisco Peninsula, which is part of the Golden Gate National Recreation Area. Specifically, CoA Institute explained that the Trust’s flawed FOIA rule fails to correct its definition of a “representative of the news media” in line with statutory and judicial authorities.

News Media Fee Category

The Presidio Trust’s proposed rule marks the agency’s first effort to update its fee provisions in roughly twenty years.  Yet despite ample time to review recent legal developments, and notwithstanding the Trust’s reliance on the Department of Justice template for agency FOIA regulations, which correctly advise agencies to eliminate the so-called “organized and operated” standard from their definition of a “representative of the news media,” the Trust still missed an important deficiency in its rulemaking.

The “organized and operated” standard, which the Presidio Trust has improperly retained, has been used in the past to deny news media requester status to nascent media groups and government watchdog organizations like CoA Institute.  Indeed, CoA Institute took another agency—the Federal Trade Commission—to court, and argued its case all to the way to the D.C. Circuit, just to get the agency to acknowledge that its similar retention of the “organized and operated” standard was unlawful and led to improperly denying CoA Institute a fee reduction.  The D.C. Circuit eventually issued a landmark decision in CoA Institute’s favor to clarify proper fee category definitions and their application in FOIA cases.

CoA Institute has succeeded in convincing a number of other agencies to adopt a proper definition of “representative of the news media” in line with the FOIA statute and controlling case law.  Those agencies include, 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.  We hope that the Presidio Trust will likewise revisit its flawed FOIA rule and eliminate the “organized and operated” standard in lieu of a proper definition of a news media requester.

Ryan Mulvey is Counsel at Cause of Action Institute

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02/28/2018

NOAA FOIA Response Suggests Refusal to Search Council Member Email Accounts for Records on At-Sea Monitoring Amendment

Earlier this month, Cause of Action Institute (“CoA Institute”) filed an administrative appeal of a final response by the National Oceanic and Atmospheric Administration (“NOAA”) to CoA Institute’s Freedom of Information Act (“FOIA”) request concerning NOAA’s efforts to expand industry funded at-sea monitoring—specifically, to the herring and mackerel fisheries—and to lay the foundation for industry funding across all of New England and the Mid-Atlantic.  NOAA’s processing of the request suggests that the agency failed to search email accounts belonging to members of the fishery management councils even though they are subject to public disclosure.  Based on the limited records that were disclosed, NOAA’s search appears improperly limited to its own employees.

The Industry-Funded Monitoring Omnibus Amendment

Over the past five years, the New England and Mid-Atlantic Fishery Management Councils (“NEFMC” and “MAFMC,” respectively) have worked on a controversial omnibus amendment that would require more fisherman to pay for at-sea monitoring.  Industry-funded monitoring has already been imposed on the groundfish fleet, despite a long-fought legal challenge, devastating economic consequences, and historically-depressed fishery performance.  Industry funding in the herring and mackerel fisheries will cost fishermen between $710–$818 per day at sea.  That is more than the average daily revenue of many fishermen and will render fishing unprofitable for countless small-scale family businesses.

CoA Institute submitted a written comment in response to the poorly-designed and ill-timed omnibus amendment.  Although the MAFMC decided to table the project for at least a year, the New England Council elected to forge ahead with the herring fishery.  According to a recent presentation by NOAA staff, the agency is now reviewing a draft proposed rule.  The NEFMC’s official “timeline” indicates the rule will be published this month.  A final rule is expected to follow in June 2018.

The December 7, 2017 FOIA Request and Appeal

In an effort to investigate how the Councils and NOAA responded to our comment, we filed a FOIA request for “[a]ll records concerning” the comment, “including any correspondence between or amongst members of the New England and Mid-Atlantic Councils; officials, employees, or representatives of NOAA; or any other third party.”  When we received a response, we were surprised that the agency only found seven responsive records—five of which were part of a single e-mail chain with most substantive content redacted to protect NOAA’s “deliberative” processes.

The other two records were an email that we sent to then-Regional Administrator John Bullard with a courtesy copy of our comment, and an email from Dr. Christopher Moore, Executive Director of the MAFMC, forwarding our comment to members of the Council.

NOAA failed to disclose any records from the members of the regional councils.  Even the record from Dr. Moore was the version received by John Bullard, as highlighted here:

NOAA’s failure to locate, process, and disclose relevant records from Council members is a serious deficiency in its response.  Council records—including members’ email correspondence—are subject to the FOIA, even if those records are stored in private email accounts.  The regional councils conduct important business that has a serious impact on the livelihoods of Americans involved with the fishing industry.  The process by which fishery rules are designed and implemented can already be less-than-transparent; any attempt to hide records from public scrutiny cannot be allowed to stand.

Follow-Up Public Records Requests to Massachusetts and Maryland

CoA Institute also filed state-level FOIA requests with Massachusetts and Maryland this week in order to access some of the records that NOAA has refused to disclose.  These requests seek the same records sought from the federal government, but only to the extent they were created or received by John Quinn and Michael Luisi, the chairmen of the NEFMC and MAFMC, who used their state government email addresses to conduct council business.

Interestingly, sometime after CoA Institute submitted its comment, Dr. Quinn removed his University of Massachusetts email address from the NEFMC website, perhaps in order to dissuade the interested public from even attempting to file a state public records request.

CoA Institute is committed to fighting for the economic rights and liberties of everyday Americans, including those who face increasingly onerous regulation of their livelihoods.  We also will fight against agencies that flout federal records management laws in an attempt to keep their regulatory efforts secret.

Ryan Mulvey is Counsel at Cause of Action Institute

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02/26/2018

CoA Institute Calls on HUD Watchdog to Pull Flawed FOIA Rule

Cause of Action Institute (“CoA Institute”) has sent a public letter to the Department of Housing and Urban Development (“HUD”) Office of Inspector General (“OIG”) to request that the agency watchdog recall and revise its recent direct final rule implementing changes to its Freedom of Information Act (“FOIA”) regulations.  Specifically, CoA Institute explained that the OIG’s flawed FOIA rule cross-references deficient fee provisions in HUD’s current department-wide regulations.

As an independent component of HUD, the OIG maintains its own rules regulating public access to its records.  In and of itself, this is not an unwelcome fact.  These component-specific FOIA regulations are important for maintaining the OIG’s independence and limiting the potential politicization of disclosure processes by HUD political staff.  Yet the OIG still relies on department-wide FOIA policy in certain important respects.  For example, the OIG cross-references many of HUD’s general regulatory provisions for charging fees to requesters.  The OIG’s new rule only slightly modified its existing cross-reference to reflect the changes introduced last year by HUD in response to the FOIA Improvement Act of 2016.

News Media Fee Category

Unfortunately, when revising its agency-wide regulations last year, HUD failed to eliminate the so-called “organized and operated” standard from its definition of a “representative of the news media.”  Such language has been used in the past to deny news media requester status to government watchdog organizations like CoA Institute.  Indeed, CoA Institute took the Federal Trade Commission to court, and argued its case all to the way to the D.C. Circuit, just to get the agency to acknowledge that its retention of the “organized and operated” standard was unlawful and led to improperly denying CoA Institute a fee reduction.  The D.C. Circuit eventually issued a landmark decision in CoA Institute’s favor to clarify proper fee category definitions and their application in FOIA cases.

Like the OIG earlier this week, HUD forwent a comment period and issued a direct final rule without any public feedback.  After CoA Institute nevertheless sent the agency a letter to explain the deficiency in HUD’s rulemaking, our comment went unanswered.  And, to date, HUD has not indicated any intention of again revising its own flawed FOIA rule to conform with statutory and judicial authorities.

CoA Institute has convinced a number of other agencies that solicited public comment to adopt a proper definition of “representative of the news media” in line with the FOIA statute and controlling case law.  Those agencies include, 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.  We hope that the OIG will similarly acknowledge the need to revisit its flawed FOIA rule by eliminating the cross-reference to HUD’s improper fee provisions and adopting a proper definition of a news media requester.

Ryan Mulvey is Counsel at Cause of Action Institute

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02/22/2018

Investigation Update: OPM Provides Deficient FOIA Response on Congressional Oversight Policy

For the past year, Cause of Action Institute (“CoA Institute”) has been investigating rumors that the Trump Administration is directing federal agencies to ignore congressional oversight requests from Democratic legislators.  Various reports (here and here), which detail contentious interactions between congressional staffs and employees at the General Services Administration (“GSA”) and the Office of Personnel Management (“OPM”), allege that the directive “not to cooperate” with individual Members’ records requests was originally delivered by Uttam Dhillon, Special Assistant to the President.  The earlier issuance of an opinion letter by the Department of Justice’s Office of Legal Counsel seemed to corroborate these press reports.

As I discussed in a September 2017 op-ed in The Hill, the Administration’s actual congressional oversight policy remains ambiguous.  On July 20, 2017, the White House disavowed the OLC opinion letter as a statement of government-wide policy following severe criticism by Senator Chuck Grassley.  Yet records received by CoA Institute under the FOIA suggest that either the OLC opinion is still in force or the White House has yet to uniformly apply its actual policy.  For example, following our successful appeal of a GSA FOIA response, the agency disclosed GSA Order ADM 1040.3, dated July 24, 2017, which expressly states that the OLC opinion remains the agency’s—and, presumably, the Administration’s—official policy.  Our request for public clarification has gone unanswered.

Now, a recent FOIA response from OPM only confuses the matter further.  As part of our investigation, CoA Institute sent a FOIA request to OPM seeking access to various records concerning the agency’s policies or procedures for handling congressional oversight and records requests.  We also requested copies of records evidencing White House directives on pre-production consultation or review of requests from Congress or under the FOIA.  OPM was only able to locate a single email linking to the OLC memo, but without any further details concerning its implementation at the agency, let alone its continued relevance.

Like the GSA’s initial failure to locate responsive records, OPM’s response is curious because multiple media reports have established that Jason Simmons, OPM’s then-Chief of Staff, directed the agency’s congressional liaisons to process only those oversight requests co-signed by Republican committee chairmen.  Yet no such directive was located and disclosed.  Moreover, with respect to the records that were released, OPM withheld the names and email addresses of its employees.  It is therefore unclear who at the agency was reviewing the OLC opinion letter or for what purposes.  We have filed an appeal challenging the adequacy of OPM’s search efforts, as well as its withholdings under FOIA Exemption 6.  If the agency were to undertake a supplemental search, some much needed clarification could be forthcoming.

Ryan Mulvey is Counsel at Cause of Action Institute

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12/19/2017

Politicizing FOIA review at the EPA and Interior

The Washington Post reported last week that “high-level officials” at the Environmental Protection Agency (“EPA”) and the Department of the Interior (“DOI”) have started to “keep closer tabs” on incoming Freedom of Information Act (“FOIA”) requests for records that may be embarrassing or politically damaging to the Trump Administration.  Whether by deliberately delaying responses or conducting pre-production review of responsive records, non-career officials have been accused of politicizing FOIA.

Politicizing FOIA is Not New

Although concern over the improper interference by political appointees in the administration of the FOIA is justified, the practice did not originate with President Trump.  For example, according to two DOI Inspector General reports—dated September 2015 and October 2010—political appointees at Interior have long been routinely made aware of “selected” FOIA requests, including those “currently in litigation” or concerning “high profile or sensitive matters.”  In some instances, requests (including those from news media requesters) were “considerably delayed . . . possibly due to political involvement.”  Moreover, the EPA Inspector General, in August 2015 and January 2011, reported that EPA regulations specifically permitted some political appointees—including the agency’s Chief FOIA Officer and the authorized disclosure official in the Administrator’s Office—to participate in approving requests and redacting records.

The Obama-era

The truth is that politicizing FOIA reached its zenith under the Obama Administration.  Despite a professed commitment to transparency, President Obama introduced the pernicious practice of “White House equities” and “sensitive review” procedures at various agencies, including the Department of Treasury, the Department of Housing and Urban Development, the EPA, the State Department, the Department of Veteran Affairs, the Department of Defense, and the Department of Homeland Security.  As part of “sensitive review,” non-career political appointees direct career FOIA staff to consult with them whenever a FOIA request could elicit media attention or potentially embarrass the White House.  It is more than a bit ironic that the Washington Post—which previously described the Obama Administration as “one of the most secretive” ever because of its historic “stonewalling or rejecting” of FOIA requests—would now forget, or least fail to mention, this long, bipartisan history of presidents abusing transparency laws to their advantage.

Of course, none of this means that the Trump Administration is adhering to best practices.  It stands to reason that FOIA politicization, and a lack of overall commitment to transparency, continues.  For example, “White House equities” review persists.  In July 2017, the General Services Administration released to CoA Institute a previously-secret White House memo detailing those procedures, thus suggesting they are still in place.  Although not directly related to the FOIA, the White House also appears to have interfered with how agencies respond to congressional oversight requests.  And, most recently, CoA Institute has investigated the National Oceanic and Atmospheric Administration’s practice of identifying “high visibility” FOIA requests, as well as its tracking of requests concerning the Trump “transition.”

The current Administration is not alone in politicizing FOIA.  Where political appointees are interfering with the disclosure of records, they are continuing a long tradition of obstructing the public’s right to access government information.  To turn the issue into a partisan one—of Trump versus the EPA #Resistance, of #DrainTheSwamp versus the “main stream” media—obscures the underlying problem and makes it more difficult to reach consensus on how to fix it.

Ryan P. Mulvey is Counsel at Cause of Action Institute.

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12/19/2017

Lawsuit against McAuliffe, GreenTech Automotive is long overdue

Ryan P. Mulvey: Lawsuit against McAuliffe, GreenTech Automotive is long overdue

It was always too good to be true.

Nearly ten years ago, when Terry McAuliffe teamed up with Chinese businessman Charles Wang to start GreenTech Automotive — and hired Hillary Clinton’s brother, Anthony Rodham, to sell the “green energy” car company to foreign investors — the principals made alluring promises to state officials in Virginia and Mississippi.

 In return for millions of dollars in public loans and tax incentives, GreenTech at one time pledged to create upwards of 25,000 jobs. According to the Memorandum of Understanding eventually signed between the company and the Mississippi Development Authority, however, McAuliffe and his cohorts ultimately only promised to invest $60 million in the state and create 350 full-time jobs within three years.

As expected by some — including Cause of Action Institute — even the company’s more modest promises of economic growth fell through. The writing was on the wall as early as May 2016when reports circulated that GreenTech employed only 75 people and had failed to sell a single vehicle.

Read the full column at Richmond Times-Dispatch

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