Cause of Action Institute Calls on NASA to Revise Proposed FOIA Rule

Cause of Action Institute (CoA Institute) submitted a public comment to the National Aeronautics and Space Administration (NASA) today, concerning the agency’s proposed revisions to its Freedom of Information Act (FOIA) regulations. Our comment offers improvements to various aspects of the proposed rule which are inconsistent with current statutory guidelines regarding fee reduction classifications and the proper scope of searches for relevant records. CoA Institute also suggests an additional provision that was not proposed by the agency, implementation of the “foreseeable harm” standard, a provision we are investigating government-wide.

NASA refers to the White House Office of Management and Budget’s Uniform FOIA Fee Schedule and Guidelines as an authority for interpreting the FOIA and the agency’s implementing regulations.  However, the OMB Guidelines have been statutorily superseded, in part, by Congress’s passage of the OPEN Government Act of 2007 and conflict with case law developments. CoA Institute asks NASA to remove any reference to the OMB Guidelines in its final rule. This change is important because continued reliance on the OMB Guidelines will make it more difficult for certain kinds of requesters to receive fee reductions.  Specifically, the OMB Guidelines retain outdated definitions of “representative of the news media”[1] and “educational and non-commercial scientific institution.”[2]  This change will also make NASA’s regulations internally consistent, as they often correspond with current law and, consequently, contradict the outdated guidelines.

Although NASA adopts the current definition of a “representative of the news media,” it seeks to impose novel requirements that would make it more difficult for news media requesters to obtain a fee reduction.  Specifically, NASA would require a news media requester to explain (1) how it intends to disseminate records, (2) why those records constitute “current news,” or are of “public interest,” and (3) how the records will “shed light on agency statutory operations.” Each of these requirements is inconsistent with the FOIA and relevant caselaw, particularly Cause of Action v. Federal Trade Commission.  The fee category inquiry turns on the nature of the requester, not the purpose of his or her request.  If NASA retains these proposed hurdles, journalists and watchdogs, among others, will find it more difficult to receive favorable fee treatment.

Additionally, certain language in the proposed rule suggests that NASA considers only records within its physical “possession” to be subject to the FOIA.  This misstates the law.  Whether a record is an “agency record” for purposes of the FOIA, and therefore available for disclosure, depends on whether it is under an agency’s legal “control.”  “Control” includes instances of “constructive possession,” such as when records are stored in private email accounts or created and/or maintained by a contractor.  The FOIA statute and relevant case law are clear on this point. If NASA does not replace the word “possession” with “control” it will engender confusion and may lead to the improper denial of FOIA requests, particularly those that seek records of agency business that were created or obtained on personal accounts or record systems.

NASA’s rulemaking is supposed to implement the FOIA Improvement Act of 2016, but there is one amendment that has not been addressed: the “foreseeable harm” standard.  Under that new standard, an agency may only withhold records if it “reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.”  The rule prohibits the mere technical application of FOIA exemptions. Without the language proposed by CoA Institute, it could be harder to hold NASA accountable for its compliance with the FOIA.  Some agencies have taken the view that the “foreseeable harm” standard is inconsequential.  Yet that view renders the standard mere surplusage, which is an unacceptable outcome.  By adding a provision to implement the “foreseeable harm” standard, NASA would demonstrate its commitment to the law.

Our comment to NASA is part of our ongoing efforts to ensure that all agencies continue to update their FOIA regulations to reflect the current language in statutory guidelines. The FOIA is a vital component for efforts to ensure transparency and accountability in government, and CoA is committed to leveraging our expertise to encourage proper conformity with the law among all regulatory agencies. We have submitted 27 public comments to various rulemaking efforts since the passage of the FOIA Improvement Act of 2016, and we hope NASA will follow in the footsteps of other agencies who have adopted our recommendations to conform with the law.

Ryan Mulvey is counsel at Cause of Action Institute.

[1] Cause of Action v. Fed. Trade Comm’n, 799 F.2d 1108 (D.C. Cir. 2015)

[2] Sack v. Dep’t of Def., 823 F.3d 687 (D.C. Cir. 2016).

CoA Institute Sues 14 Federal Agencies in Ongoing FOIA Investigation

Washington, D.C. (May 23, 2019) – Today, Cause of Action Institute (CoA Institute), a government watchdog organization, filed a lawsuit against 14 federal agencies seeking access to records concerning government-wide implementation of the Freedom of Information Act’s (FOIA) “foreseeable harm” standard. In October 2018, CoA Institute sent FOIA requests to 25 federal agencies as part of an investigation into the Administration’s implementation of this provision. The 14 agencies named in the lawsuit failed to provide timely determinations to the organization’s requests.

Ryan Mulvey, counsel at Cause of Action Institute:

“The failure of these 14 federal agencies to adhere to FOIA’s required timeline for response is unacceptable. For nearly seven months, we have waited for information concerning the agencies’ adherence to FOIA and diligence in implementing important amendments passed by Congress in 2016. The FOIA process is an integral vehicle for government accountability but it is only effective when government meets its statutory obligations. CoA Institute is committed to holding the government accountable and will continue to pursue these important records concerning fair administration of the FOIA.”

Background

The FOIA Improvement Act of 2016 included a “foreseeable harm” provision designed to ensure that federal agencies only withhold requested records when they “reasonably foresee” that disclosure would harm an interest protected by a statutory exemption. This “foreseeable harm” standard builds upon the so-called “presumption of openness,” which was introduced on a discretionary basis by the Obama White House and requires agencies to go beyond mere formulaic justifications for redacting records.

The Department of Justice Office of Information Policy (OIP) is tasked with providing guidance to the rest of the Executive Branch on the proper administration of the FOIA. After it failed to publish any government-wide directives on the proper interpretation and implementation of the “foreseeable harm” standard, CoA Institute opened an investigation into the administration of the FOIA and the “foreseeable harm” standard of 25 federal agencies. Fourteen of those agencies failed to issue a final determination in response to the requests within the statutorily required period, thus prompting CoA Institute to file a lawsuit to ensure the production of agency records.

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Media Contact: Matt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

Institute of Museum and Library Services Adopts CoA Institute’s Recommendation for Revised FOIA Regulations

The Institute of Museum and Library Services (“IMLS”) finalized a rule today implementing revised Freedom of Information Act (“FOIA”) regulations that incorporates an important revision proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency in January 2019.  The IMLS is a small agency that provides federal support to libraries and museums across the country in coordination with state and local government.

CoA Institute made several recommendations in response to the IMLS’s proposed rulemaking.  Most importantly, we urged the agency to remove outdated “organized and operated” language from its definition of a “representative of the news media.”  That language has been used in the past to deny news media requester status—and favorable fee treatment—to government watchdog organizations, including CoA Institute.

In 2012, we sued the Federal Trade Commission, and took our 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 by relying on the “organized and operated” standard.  In deciding that case, the D.C. Circuit issued a landmark decision in 2015, which clarified the proper fee category definitions and application of fees in FOIA cases.  We cited this case to the IMLS and the agency took heed of the controlling case law, removing the outdated “organized and operated” standard from its final rule.

CoA Institute also asked the IMLS to remove language directing its 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 the source of the “organized and operated” standard, are no longer authoritative because 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 is a source of 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 IMLS has decided not to alter its reference to the OMB guidelines, 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-seven separate rulemakings.  Of the twelve interim or proposed rulemakings that have been finalized, CoA Institute has succeeded in convincing nine agencies to abandon the outdated “organized and operated” standard in favor of a proper definition of “representative of the news media,” including the following:

Other agencies, including the National Credit Union Administration and the Federal Reserve, chose to defer CoA Institute’s recommendations and have promised to propose further revisions in the near future to address outstanding fee issues.  A small minority of agencies, which published direct final rules, have failed to acknowledge the continued deficiency in their regulations.

CoA Institute’s successful comment to the IMLS 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

Newly Released Records Confirm IRS, DOJ Violated Taxpayer Confidentiality Law

Whether we like it or not, the Internal Revenue Service (IRS) plays a central role in the administration of our tax laws. The agency consequently possesses copious amounts of sensitive financial information about individual Americans, nonprofits, and other corporations. Congress considered the protection of such information so important that it has mandated its confidentiality. Section 6103 of the Internal Revenue Code requires that “returns and return information”—essentially, anything about a taxpayer in IRS files—“shall remain confidential.” The importance of taxpayer confidentiality, and the danger inherent in its unauthorized disclosure, is one reason why the 2010 “Tea Party” targeting scandal was so serious—the Obama White House weaponized the IRS to target individuals and nonprofit groups based on their perceived political alignment.

IRS records recently produced to Cause of Action Institute (CoA Institute) in a Freedom of Information Act (FOIA) lawsuit now shed further light on how carelessly the IRS and the Department of Justice (DOJ) handled sensitive taxpayer information and only belatedly admitted to Congress that they had violated taxpayer confidentiality. In 2012, CoA Institute began its in-depth investigation into the nature and causes of the IRS targeting scandal and the misdeeds of government bureaucrats such as Lois Lerner. Part of our investigation revealed that IRS officials, including Ms. Lerner, willingly handed over twenty-one computer disks, containing over 1.1 million pages of taxpayer information, to the DOJ Public Integrity Section and the Federal Bureau of Investigation (FBI), despite lacking proper legal authorization to do so. This allegedly was done as part of the previous Administration’s efforts to investigate exempt entities suspected of having engaged in prohibited political activity.

After repeatedly insisting that it had received only “publicly available portions” of Form 990s when the IRS turned over those 1.1 million pages of taxpayer information, the DOJ later admitted it was mistaken. The records received by CoA Institute confirm that was the case.

In two requests for investigation (here and here), CoA Institute explained why the IRS’s unauthorized disclosure constituted a serious breach of taxpayer confidentiality laws. But the DOJ Inspector General, while admitting that taxpayer data had been mishandled, choose to do nothing and merely stated that Congress had been “informed” and “this matter does not warrant further investigation.” The DOJ watchdog’s inaction led to a series of further FOIA requests (here, here, and here) that were designed to discover more about what the IRS and DOJ had done, and how Congress was alerted to the violation of Section 6103. CoA Institute obtained the requested records only after filing a lawsuit to compel disclosure.

Section 6103 sets out clear rules for the handling of tax information. Those rules are in place to protect taxpayer privacy. In this case, however, the rules were not followed. The DOJ never had proper authorization to obtain the nonprofits’ tax information, including information about donors. But the IRS nevertheless transferred 1.1 million pages of returns to the DOJ and agreed to provide the data in “raw” format, so that it would be easier for the FBI to process.

On May 29, 2014, after the U.S. House of Representatives Committee on Oversight and Government Reform opened an investigation into the unauthorized transfer of these tax returns, the DOJ claimed that it had obtained only publicly available information, such as the returns available online on Guidestar.org.

Days later, on June 2, 2014, the DOJ again argued that the trove of tax information it obtained from the IRS was not confidential.

And then, only two days after that, the DOJ changed its story—the agency admitted that the IRS had discovered confidential Section 6103 information within the 1.1 million pages of returns and return information. The DOJ claimed that the disclosure had been “inadvertent,” and it indicated that it was “returning [its] copies of the disks to the IRS[.]” Unfortunately, it is impossible to judge just how serious this “inadvertent” breach of confidentiality was because the DOJ has refused to furnish the House Oversight Committee with internal correspondence about the incident. It has withheld this correspondence by citing the deliberative process privilege—a species of executive privilege— and, to date, those records remain secret.

To be clear, by returning the twenty-one CDs to the IRS and informing Congress about what happened, the DOJ followed proper procedure. But that does not exonerate the federal government for having allowed the breach of taxpayer confidentiality to have happened in the first place. All citizens deserve to know their government does not act with political motivations, and that the IRS will safeguard sensitive taxpayer information, especially as it pertains to charitable giving and the operation of nonprofit entities.

The DOJ’s delayed disclosure of records, which finally give a complete picture of what happened, also illustrates another danger of politicization, namely, of the FOIA process. In this case, the DOJ put up so many hurdles to accessing these records that it required a lawsuit to compel disclosure. Even then, it took months for the agency to produce the records. It would have been next to impossible for an ordinary citizen to get the same result.

For government to be truly transparent, it must be held accountable by its citizens. The behavior of the IRS and DOJ in this case is a perfect illustration of why CoA Institute is committed to fighting for an open and transparent government. Government agencies should not be allowed to violate statutes and then stonewall requests that seek to expose the truth. That is why we pursued this investigation and why we will continue to vigorously serve as a government watchdog on behalf of every American.

Ryan Mulvey is Counsel at Cause of Action Institute. 

Cause of Action Institute Secures Rare Preservation Order in Fight to Obtain DOJ Records Created on Personal Email Account

Government official caught using personal email to conduct official business ordered to maintain copies of all records in Gmail account

Washington, D.C. (April 26, 2019) – Cause of Action Institute (CoA Institute), a nonpartisan government watchdog organization, today announced it had secured a rare federal court order requiring a former U.S. Department of Justice (DOJ) employee to preserve the contents of her personal email account, which had been used to conduct official agency business. Those records may be subject to later release.

Ryan Mulvey, counsel for CoA Institute, issued the following statement:

“Government transparency is a fundamental necessity in a free and open society. The use of personal devices to conduct official business remains a serious concern, resulting in records being lost, unsecured, or improperly destroyed. In some cases, personal email accounts are used to avoid disclosure altogether. This court order is an important reminder to all government employees to avoid using personal email and devices and adhere to all relevant agency rules and government transparency statutes. It also is a warning to agencies to ensure that they meet their record-keeping obligations.”

U.S. District Court Judge Amit Mehta granted Cause of Action’s motion, ordering the U.S. Department of Justice to require a former employee, Sarah Isgur Flores, not to delete any emails stored in her personal Gmail account, and to store copies of the account’s contents onto a thumb drive or other storage device, including all emails in archived or deleted folders. The Court also ordered Ms. Flores to maintain the emails until further instructed, and gave the U.S. Department of Justice until May 2, 2019 to provide notice of its compliance with the preservation order. Although the issuance of such a preservation order is rather rare, it is the latest example in a developing trend. Federal courts have become increasingly concerned about the use of personal email to conduct agency business, and they are taking serious the possible loss or destruction of government records that may be subject to the Freedom of Information Act (FOIA) and other federal records management statutes, including the Federal Records Act.

Background

In 2017, media reports indicated that Sarah Isgur Flores, then-spokeswoman for Attorney General Jeff Sessions, used her personal email to issue official statements on behalf of the government. Due to concerns that this sort of behavior could harm the public’s access to official records, and in light of past instances of personal email having been used as a way to conceal public information, Cause of Action Institute filed a FOIA request for Ms. Flores official work-related emails sent or received through her personal devices or accounts. After waiting more than 18 months for a response, CoA Institute sued DOJ to force the disclosure of the Flores records.

On September 27, 2018, DOJ responded, “As is evident from the enclosed records, Ms. Flores forwarded emails sent to her personal account to her official Department of Justice email account, including through an automatic forward. As such, all of these emails were located pursuant to our search of Ms. Flores’ official Department of Justice email account.”

However, within the 112 pages produced by DOJ, the original email issued by Ms. Flores, as reported by members of the press, was missing. Despite raising this issue with DOJ, the government insisted the 112 pages were a full-and-complete record. As a result, and after learning of Ms. Flores’s departure from public service, CoA Institute filed a motion, urging the court to compel DOJ and Ms. Flores to preserve all relevant records.

Late on Thursday, April 25, the Court granted CoA Institute’s motion in full, compelling the government to coordinate with Ms. Flores to preserve her personal email account and maintain copies pending further court proceedings.

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CoA Institutes’s Motion for Preservation Order

Federal Court’s Order for Preservation of Records 

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CoA Institute Presents Winning Research Paper at 2019 National Freedom of Information Coalition Summit

On Friday, April 12, Cause of Action Institute (CoA Institute) Counsel Ryan Mulvey joined a panel at the National Freedom of Information Coalition’s (NFOIC) 2019 Annual Freedom of Information (FOI) Summit in Dallas, Texas to present a winning research paper co-authored by Mulvey and CoA Counsel and Senior Policy Advisor James Valvo. The paper presents a comprehensive survey of open records laws and identifies useful trends in how public access to legislative records is regulated at the state and federal levels. Ryan and James’ paper was one of three to be presented on a panel from 18 total submissions for the contest. Their underlying research evolved out of work originally undertaken for an amicus brief filed in the Georgia Court of Appeals.

The paper, ‘Opening the State House Doors’: Examining Trends in Public Access to Legislative Records examines how all 50 states’ FOI laws address the question of access to legislative records. That survey reveals that 38 states provide some form of access to various legislative materials. Only 11 exclude the legislative branch from their public-disclosure laws, whether expressly, by implication, or according to judicial interpretation. The clear trend, in any case, is to construe state FOI laws in favor of public access.

Of the 38 states that provide requesters with at least some basic level of access to legislative records, 14 do so implicitly while the other 24 explicitly allow access to legislative records.

Of the states that explicitly cover the legislature in their FOI laws, there is some diversity in how the branch is included. For example, in two states the law focuses on the nature of the record subject to disclosure. North Carolina defines a “public record” to include materials “made or received” by a “public office,” including that of an elected official. Another 20 states focus on the kinds of government entities that must disclose their records upon request, including nine states that define an “agency” to include the legislature or legislative offices. Finally, in Missouri and Florida, access to legislative records is guaranteed by the state constitution.

Ryan and James identified 14 states that impliedly grant access to legislative records. Ten states do so based on the interpretation of terms defining the governmental entities subject to disclosure. For example, six states use the term “branch,” which is understood to include the legislature. Four states define the sort of record subject to disclosure in such a way to include legislative materials. And in six states, the presence of statutory exemptions—or protections that allow a record custodian to withhold information—only applicable to certain legislative records suggest that the legislature, as a whole, is subject to the FOI statute.

Finally, the survey found that of the 12 states that completely exclude the legislature from their FOI statutes, eight do so explicitly, two implicitly, and two based on judicial interpretation.

In addition to surveying state law, Ryan and James examined the treatment of legislative records under the federal FOIA. Specifically, they discussed the possibility that courts could look more seriously at the availability of records under the control of legislative branch agencies, and they pointed to the positive development in the case law governing the extension of congressional control over records that reflect the interaction of the federal legislature and the Executive Branch.

The full paper can be viewed here. The findings discussed above, and the graphics excerpted from the panel presentation, reflect developments in three states (Missouri, South Carolina, and Michigan) that are not discussed in the paper.

Ryan Mulvey is counsel at Cause of Action Institute. Mallory Koch is a communications associate at Cause of Action Institute. 

CoA Institute Calls on Institute for Museum and Library Services to Revise Proposed FOIA Regulations

Cause of Action Institute (CoA Institute) submitted a comment yesterday to the Institute for Museum and Library Services (IMLS) concerning the agency’s proposed rule implementing revised Freedom of Information Act (FOIA) regulations. The IMLS is a small government agency responsible for providing financial and institutional support to libraries and museums at the state and local level. In its comment, CoA Institute highlighted the agency’s improper retention of a fee definition that conflicts with the FOIA statute and warned the agency about potential confusion stemming from its directives for staff to administer the FOIA in light of outdated guidelines published by the Office of Management and Budget (OMB).

Link: Institute of Museum & Library Services – Public Comment re FOIA Rule

OMB published its Uniform Freedom of Information Fee Schedule and Guidelines in 1987. Although the FOIA requires an agency to promulgate its fee schedule in conformity with the OMB Guidelines, they are no longer authoritative because they conflict with the statutory text, as amended by Congress, and judicial authorities. Over the past thirty years, OMB has made no effort to revise its fee guidelines.  The OMB Guidelines therefore should not be used as a reference point for proper administration of the FOIA.

One problematic aspect of the OMB Guidelines is the definition of a “representative of the news media.” The current statutory definition of this fee category, which was introduced by the OPEN Government Act of 2007, differs significantly from the definition provided by OMB in 1987. OMB’s definition, as well as the current regulatory definition maintained by the IMLS, incorporates an “organized and operated” standard, which has long been one of the more contentious aspects of the OMB Guidelines. In 2015, however, the D.C. Circuit issued a landmark decision in Cause of Action v. Federal Trade Commission clarifying that OMB’s definition had been superseded by Congress.

The OMB Guidelines also have been rendered obsolete by other jurisprudential developments. For this reason, in 2016, the FOIA Advisory Committee and Archivist of the United States called on OMB to update its fee guidance. CoA Institute filed a petition for rulemaking on the issue, too. Last November, we filed a lawsuit to compel the agency to provide a response to that petition. The lawsuit is still pending with respect to the fee guidelines, although the agency has agreed to update its own implementing regulations (and to abandon the “organized and operated” standard).

Until the OMB Guidelines have been revised to reflect modern circumstances and the actual text of the FOIA, no agency should direct its staff to consult them in any way as an authoritative guide to interpreting the law. Moreover, each agency has its own independent duty to ensure that its regulations do not contradict statutory language. Ensuring such conformity with the law must be a central focus of all regulatory reform.

Ryan P. Mulvey is Counsel at Cause of Action Institute

Institute of Museum & Library Services – Public Comment re FOIA Rule