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05/12/2017

Dear President Trump: It’s Time to Release the Watchdogs

You’re unlikely to hear much about it, but today marks an important yet troubling milestone. The Department of the Interior has gone 3,000 days—over eight years—without a permanent IG, or “Inspector General.”  And according to the Project on Government Oversight’s “Where Are All the Watchdogs?” tracker, there are eleven other IG vacancies, including empty spots at the Central Intelligence Agency (832 days), the Department of Defense (489 days), and the National Security Agency (346 days). It was inexcusable for President Obama to neglect to fill these vacancies with qualified candidates.  It is similarly irresponsible for President Trump to continue to ignore these vital appointments.

IGs serve as the internal watchdogs of the Executive Branch agencies. They are tasked with identifying and combatting waste, fraud, and abuse at their respective entities.  To accomplish this, they conduct important investigations, inspections, and audits.  They are intended to operate independently of agency leadership—a sort of internal check on the operation of the administrative state.

The absence of permanent IG appointees to these vital roles is concerning for numerous reasons. First, it reflects the Administration’s lack of commitment to transparency and accountability in government.  Moreover, acting IGs lack true independence.  As Senator Ron Johnson has commented, “[t]hey are not truly independent, as they can be removed by the agency at any time; they are only temporary and do not drive office policy; and they are at greater risk of compromising their work to appease the agency or the president.”

There has been a renewed push to highlight the crises in IG appointments in recent weeks. The House Oversight and Government Reform Committee, for example, called on President Trump last month to fill the numerous vacancies, describing IGs as “essential to the functions of federal government.” A bi-partisan group of members of the Senate Homeland Security and Governmental Affairs Committee did the same: “[T]he lack of a permanent IG can create the potential for conflicts of interest and diminish the essential independence of IGs.”

President Trump still has a long way to go in appointing qualified candidates to fill the Executive Branch, and it is admittedly early in his Administration. But selecting qualified, independent, and committed individuals for these vacant watchdog spots should be a top priority.

Ryan Mulvey is Counsel at Cause of Action Institute.

 

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05/10/2017

Cause of Action Institute Signs Coalition Letter Opposing Congressional Interference with the FOIA

Cause of Action Institute signed a coalition letter yesterday that urged Jeb Hensarling, the Chairman of the House Financial Services Committee, to rescind his recent direction to the Department of Treasury and other agencies to treat all records exchanged with the committee as “congressional records” not subject to FOIA, i.e. the Freedom of Information Act.

As I outlined in a recent op-ed published in The Hill, the mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a “congressional record.”  The law instead requires that Congress manifest clear intent to maintain control over specific records to keep them out of reach of the FOIA.

Chairman Hensarling’s letter employs sweeping, generalized language in an ineffective yet blatant attempt to frustrate public access to records of Congress’s dealings with the Executive Branch.  As the coalition letter explains, such “assertions improperly restrict the ability of the public to use FOIA” and indicate a dangerous departure from a commitment to transparency and good government.

Ryan Mulvey is Counsel at Cause of Action Institute.

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05/9/2017

It’s Time to End the Federal Government’s Cash-for-Visas Program

The Washington Post rightly called on the Trump Administration yesterday to end the government’s controversial EB-5 visa regime and, in particular, its Regional Center Program, which was recently extended until the end of September 2017. In most cases, the “Immigrant Investor Program,” or Employment-Based Preference Five (“EB-5”) cash-for-visa program, permits foreign nationals to apply for a conditional visa by investing $500,000 in an area of “high unemployment.”  Once certain job creation requirements are satisfied, the visa holder can apply for a green card (i.e., for permanent residence).  Although advocates contend that EB-5 is good for the economy, the program has been beset with controversy.  Most recently, President Trump’s son-in-law, Jared Kushner, came under scrutiny for his family’s efforts to “push” EB-5 visas to wealthy Chinese investors.

Cause of Action Institute’s (“CoA Institute”) investigation into various aspects of the EB-5 cash-for-visa program and the Regional Center Program have shown that these initiatives are continually abused for political or fraudulent purposes—a fact now acknowledged by the Government Accountability Office.

  • CoA Institute published a comprehensive report detailing how Virginia Governor Terry McAullife’s former company, GreenTech Automotive, used his political connections to garner millions of taxpayer dollars in loans and tax incentives. GreenTech remains embroiled in an investigation by the Securities and Exchange Commission for its involvement with EB-5. The Inspector General for the Department of Homeland Security reported that McAuliffe and friends—including Anthony Rodham, brother of former Secretary of State Hillary Clinton—benefited from political favoritism in the administration of the visa program.
  • CoA Institute’s report on Forest City Enterprises explained how corporate interests and state and local government worked together to take advantage of weak and ambiguous regulations governing EB-5—manipulating census data to create “targeted employment areas” and relying on questionable job prediction models to meet green card conditions. CoA Institute also discovered that Forest City contracted the same immigration lawyer and economist as GreenTech.
  • CoA Institute filed an ethics complaint against former Senator Harry Reid, who contacted officials at the U.S. Citizenship and Immigration Services in an attempt to influence the approval of EB-5 visa applications for a casino development project owned by Reid’s donors and represented by his son. The Senate Ethics Committee ignored the request, claiming that it never received a copy despite evidence to the contrary.
  • In the wake of the DHS Inspector General’s report, CoA Institute called on the Department of Justice to investigate a number of government officials for violation of federal laws.

Simply stated, the EB-5 Program operates as a cash-for-visa scheme. Whatever economic advantage it might offer is outweighed by the corruption it engenders and negative influence it has on national security and good government.  Congress should end the program or work to reform its governing rules to prevent continued abuse by the political class.

Ryan Mulvey is Counsel at Cause of Action Institute

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05/8/2017

The next front in the FOIA War: Congress blocking disclosure of its dealings with the Executive Branch

By Ryan Mulvey, Opinion Contributor

Presidential interference with public access to politically sensitive agency records has been an ongoing fight that seems unlikely to end anytime soon, and now it appears Congress has decided to get into the game.  My organization, Cause of Action Institute (“CoA Institute”), has long been at the forefront of fighting against unlawful obstruction of the Freedom of Information Act (“FOIA”).  Last year, we filed a lawsuit against the Office of the White House Counsel to end the practice of “White House equities” review, which results in the delay of responses to FOIA requests that the administration deems politically embarrassing.  With that lawsuit still ongoing, Congress has taken a page from the White House’s playbook to keep records of its dealings with agencies hidden from public view, too.

BuzzFeed reported last week that Financial Services Committee Chairman Jeb Hensarling (R-Texas) sent a letter to the Treasury Department that directed the agency to treat all records exchanged with the committee as “congressional records” not subject to the FOIA.  Read More

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04/24/2017

A Low Bar for White House Transparency – But Concerns Rising

Citing “national security risks and privacy concerns,” the White House recently announced that it would no longer disclose the contents of its visitor logs to the public, contrary to a policy introduced and maintained (albeit, inconsistently) by the Obama Administration.  According to The New York Times, White House press secretary Sean Spicer went so far as to suggest that disclosure would be “unnecessary, intrusive, or even harmful.”

The Trump Administration’s proffered justification for reversing President Obama’s discretionary disclosure of the logs is overstated. While the Executive Branch has an undeniable interest in some secrecy, the goals of good government are better served when the public has knowledge of those with whom the President—the quintessential public servant—is spending his time, whether in consultation about government policy or on the golf course.  Yet the decision to keep visitor logs secret is only the latest indication of a troubling trend emerging from the Trump White House regarding a lack of support for open and transparent government.

Of greater concern than the discontinuation of the WH visitor logs is the apparent continued use by the Trump administration of the policy known as “White House equities.”

When a member of the public requests records from a federal agency under the Freedom of Information Act (FOIA), that agency will often “consult” or seek the input of another government entity that created any record at issue.  Under the Obama Administration, however, evidence suggested that agencies were sending records to the Office of White House Counsel whenever they were politically sensitive, newsworthy, or otherwise embarrassing to the administration.  The result of this policy was to delay the production of records when they should have been promptly released under FOIA requirements.  Cause of Action Institute even filed a lawsuit in an attempt to reverse President Obama’s overbroad “White House equities” policy.

Shortly after President Trump’s inauguration, we reached out to the new White House Counsel to request revisions to, or elimination of, this damaging policy.  We have yet to receive a response.

Ending “White House equities” review as currently practiced would strike a blow for accountability and the rule of law and would send a strong signal that this administration takes seriously its obligations to the public.  As others have noted, President Obama promised transparency and delivered one of the most secretive governments in American history.  The bar is already low; President Trump can and should do better.

Josh Schopf and Ryan Mulvey are counsels at Cause of Action Institute

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03/31/2017

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

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03/20/2017

The Proof is in the Metadata: Recent Developments in CEI v. OSTP

Last summer, in Competitive Enterprise Institute v. Office of Science & Technology Policy, 827 F.3d 145 (D.C. Cir. 2016) (“CEI v. OSTP”), the D.C. Circuit reached an important decision concerning an agency’s obligation to search private email accounts maintained by government officials for records responsive to a Freedom of Information Act (“FOIA”) request. The court determined that if an official “possesses what would otherwise be agency records [e.g., work-related email], the records do not lose their agency character just because the official . . . takes them out the door [e.g., to a private account][.]” Id. at 149. Thus, if a personal email account may contain agency records, the agency cannot categorically refuse to conduct a search of that private account.

This past week, however, the district court on remand appeared to dampen the impact of the D.C. Circuit’s ruling. Judge Gladys Kessler determined that OSTP had met its burden under the FOIA and did not have to conduct a search of former Director John Holdren’s personal email account, the contents of which had been saved on a thumb drive last December under court order. OSTP successfully argued that any agency records on Holdren’s non-governmental account would be duplicative of records already on OSTP servers. The agency pointed to a policy that required Holdren to forward work-related email to his official account or to copy that account on work-related correspondence. OSTP also attested that Holdren obeyed this policy on “approximately 4,500 occasions” and was otherwise entitled to a presumption of compliance “absent evidence to the contrary.” CEI could not rebut the presumption.

The district court’s decision, particularly on the heels of Sunshine Week, is disappointing. First, although a requester admittedly cannot rely on speculation to prove wrongdoing, once a requester has proven that a non-governmental system contains agency records, the agency should not be allowed to forego a search of that system simply because it claims to possess “duplicative” records elsewhere. It is difficult enough to demonstrate that an agency official is violating the spirit, if not the law, of transparent government by using personal email for work-related purposes. The existence and usage of a parallel personal account should be enough, in most cases, to rebut any presumption of compliance with preservation rules. Of course, OSTP may have given sufficient evidence of Holdren’s compliance in this case—an affidavit indicated that he forwarded or copied his official email account approximately 4,500 times—but courts should remain skeptical that all agency records have been forwarded when atypical means of conducting government business are at issue. One need only consider the ongoing saga of former Secretary of State Hillary Clinton’s private email accounts, where additional State Department records were uncovered even after she had averred that all such records had been turned over, to understand why this should be the case.

Second, assuming OSTP had copies of all agency records from Holdren’s personal account, it is not clear that these copies would actually be “duplicative.” For example, CEI argued that it sought Holdren’s email in “electronic format” along with any “metadata.” On this theory, copied or forwarded email records on OSTP’s servers may not, in fact, be “duplicative” because they may not include all original metadata. Judge Kessler found this line of argument unpersuasive and held that the metadata in Holdren’s personal email would “not in itself make each email unique as compared to the forwarded reproduction[.]” This conclusion is wrong and sets a dangerous precedent.

Metadata includes various types of information about an electronic document that are not usually visible, but reflect important characteristics concerning the document’s origin, alteration, or usage. It includes “substantive metadata,” such as tracked changes in Microsoft Word; “system metadata,” which is created by a computer system, such as the information contained in a file’s properties; and “embedded metadata,” such as hyperlink details or Excel formulae. See Aguilar v. Immigration & Customs Enf’t, 255 F.R.D. 350, 354–55 (S.D.N.Y. 2008) (discussing different types of metadata).

Numerous state courts have ruled that metadata forms an integral part of an electronic record and is subject to disclosure under state-based Freedom of Information regimes. No federal court has settled the question for the FOIA, but it seems appropriate to adopt a similar default presumption that metadata must be disclosed so long as it forms an integral part of an electronic record and is readily reproducible. A requester should not even need to specifically request integral metadata.

There may not be a one-size-fits-all approach to distinguishing different types of metadata and which form an integral part of a record. The best approach would take into account an agency’s storage practices and the type of electronic records at issue—Does the agency store email in a hard-copy format or electronically? Are electronic copies kept in native or near-native format? What sort of metadata is preserved in those formats? It would also consider an agency’s ability to readily reproduce metadata—Are email records readily releasable as PDF or MSG files? Finally, it would look to whether a requester has specified that he wants an agency to produce (rather than merely search for) records in a form that includes metadata. See, e.g., Citizens for Responsibility & Ethics in Washington v. Department of Education, 905 F. Supp. 2d 161, 171–72 (D.D.C. 2012) (“CREW did not request that DoEd produce its records in electronic format . . . DoEd thus had no obligation to produce the documents in any particular format.”) (internal citation omitted).

This proposed approach under the FOIA is supported by the treatment of metadata in other legal contexts. Under implementing regulations for the Federal Records Act, for example, “electronic record” is defined as “both record content and associated metadata that the agency determines is required to meet agency business needs.” 36 C.F.R. § 1220.18. “Metadata,” in turn, “consists of preserved contextual information describing the history, tracking, and/or management of an electronic document.” Id. When it comes to email records, some metadata can form an integral part of the electronic record. See id. § 1236.22(a). In the civil discovery context, when metadata exists as part of a document’s native format, it should be produced to an opponent. If a party seeks discovery of additional metadata, a court will typically grant it so long as the metadata is reasonably accessible and potentially relevant to the dispute at hand.

From the outset of its case, CEI argued that it sought agency records that were stored on Holdren’s personal email account in an electronic format. Metadata integral to those records (viz., sender, recipient, and “BCC” recipient information, etc.) might not have carried over in toto to the copies on OSTP’s servers. Such information could be instructive, as any litigator or investigative journalist would attest, and might even explain why Holdren was using a personal email account for official government business in the first place. The district court considered OSTP’s “duplicative” email records “functionally equivalent” to the originals on Holdren’s private account. That much is true when considering the visible content of the email. But that’s only half of the story. Metadata lurks beneath, and without the original integral metadata, any copies of Holdren’s email on OSTP’s servers are incomplete and not duplicative.

Ryan Mulvey is counsel at Cause of Action Institute.

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