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12/21/2018

CoA Institute Discovers Curious DHS FOIA Notification Process for Employee Records

Earlier today, Cause of Action Institute (CoA Institute) received a misdirected email from the Department of Homeland Security (DHS) that apparently was intended to serve as a notification to an unidentified agency employee that certain personnel records were to be released under the Freedom of Information Act (FOIA).

The “awareness” email indicated that employee-related records were scheduled to be released in response to a FOIA request.  It also identified the name of the FOIA requester—a CoA Institute employee—and included an attached file containing the records at issue.  The email was issued “[i]n accordance with DHS Instruction 262-11-001,” which is publicly available on the DHS’s website and appears to have been first issued at the end of February 2018.

Under Instruction 262-11-001, the DHS is required to “inform current [agency] employees when their employment records . . . are about to be released under the FOIA.”  “Employment records” is defined broadly to include any “[p]ast and present personnel information,” and could include any record containing personal information (e.g., name, position title, salary rates, etc.).  Copies of records also are provided as a courtesy to the employee.

The DHS instruction does not attempt to broaden the scope of Exemption 6, and it recognizes that federal employees generally have no expectation of privacy in their personnel records.  More importantly, the policy prohibits employees from interjecting themselves into the FOIA process.  This sort of inappropriate involvement has occurred at DHS and other agencies in the past under the guise of “sensitive review,” particularly whenever politically sensitive records have been at issue.

Nevertheless, the DHS “awareness” policy still raises good government concerns.  As set forth in the sample notices appended to the instruction, agency employees are routinely provided copies of responsive records scheduled for release, as well as the names and institutional affiliations of the requesters who will be receiving those records.

To be sure, FOIA requesters typically have no expectation of privacy in their identities, and FOIA requests themselves are public records subject to disclosure.  There are some exceptions.  The D.C. Circuit recently accepted the Internal Revenue Service’s argument that requester names and affiliations could be withheld under Exemption 3, in conjunction with I.R.C. § 6103.  Other agencies, which post FOIA logs online, only release tracking numbers or the subjects of requests.  In those cases, a formal FOIA request is required to obtain personally identifying information.

Regardless of whether the DHS policy is lawful, it is questionable as a matter of best practice.  Proactively sending records and requester information to agency employees could open the door to abuse and retaliation, particularly if an employee works in an influential position or if a requester is a member of the news media.  The broad definition of “employee record” also raises questions about the breadth of implementation.

Finally, there are issues of fairness and efficiency.  If an agency employee knows that his records are going to be released, is it fair to proactively disclose details about the requester immediately and without requiring the employee to file his own FOIA request and wait in line like anyone else?  The public often waits months for the information being given to employees as a matter of course, even though the agency admits that there are no cognizable employee privacy interests at stake.

More importantly, an agency-wide process of identifying employees whose equities are implicated in records and individually notifying them about the release of their personal details likely requires a significant investment of agency resources.  Would it not be more responsible to spend those resources on improving transparency to the public at large?  To reducing agency FOIA backlogs?  Notifying employees whenever their information is released to the public is likely only to contribute to a culture of secrecy and a further breakdown in the trust between the administrative state and the public.

Ryan P. Mulvey is Counsel at Cause of Action Institute

2018.02.20 DHS Instruction 262-11-001

2018.12.20 DHS Notification Email

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12/13/2018

Cause of Action Institute Defends Fisheries from New Proposed Rule

CoA shared concerns about financial burden and legality of proposed rule

Today, Ryan Mulvey, counsel at Cause of Action Institute, spoke before the Mid-Atlantic Fishery Management Council (Council) in Annapolis, MD, about an Omnibus Amendment that would create new economic burdens on fishermen. The new rule, if enacted by the federal government, could increase costs on fishermen by as much as $810 per sea day. Mulvey also questioned whether the federal government had the authority to implement the new rule.

Ryan Mulvey issued the following statement:

“The federal government lacks clear statutory authorization to pass the Omnibus Amendment, and this rule could have devastating economic consequences on fishermen. I urged the Mid-Atlantic Council to investigate the serious legal ramifications of industry-funded monitoring schemes, and to protect the economic interests of small-business fishing firms in the Mid-Atlantic regions by asking the federal government to reject the Omnibus Amendment.”

A copy of Mulvey’s written comments for Cause of Action on the rule can be found here.

A blog about the rule and its legal and economic challenges can be found here.

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

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12/12/2018

Investigation Update: VA releases 2014 memo on “sensitive review,” but fails to conduct an adequate search for more recent FOIA guidance

  • In August 2018, a group of eight Democratic Senators, wrote to the Department of Veterans Affairs (VA) to express alarm over the possible politicization of the agency’s Freedom of Information Act (FOIA) processes. Specifically, they were concerned about the involvement of political appointees in the FOIA decision-making process.
  •  Cause of Action Institute (CoA Institute) submitted a FOIA request to the VA seeking records about the agency’s “sensitive review” process, but the agency only disclosed a single document. After considering CoA Institute’s appeal, the VA Office of General Counsel ordered supplemental searches for additional records.
  • “Sensitive review” raises serious transparency concerns because the involvement of political appointees in FOIA administrative can lead to severe delays and, at worst, improper record redaction and incomplete disclosure.
  • Whenever politically sensitive or potentially embarrassing records are at issue, politicians and bureaucrats will have an incentive to enforce secrecy and non-disclosure.

Earlier this year, CoA Institute opened an investigation into the sensitive review process at the VA. As I mentioned in an earlier post, the public has long been aware of internal practices at the agency that could open the door to FOIA abuse. During the Bush Administration, the VA issued a directive concerning the processing of “high visibility” or “sensitive” requests that implicated potentially embarrassing or newsworthy records. The Obama White House subsequently updated that guidance in October 2013, when the VA instructed its departmental components to clear FOIA responses and productions through a centralized office. This clearance process imposed a “temporary requirement” for front office review and entailed a “sensitivity determination” leading to unnamed “specific procedures.”

Another record recently disclosed to CoA Institute illustrates how the VA again updated its sensitive review process in February 2014. According to the memorandum, the agency intended to continue its “long standing” procedure for notifying leadership of incoming FOIA requests that may be “substantial interest to the Office of the Secretary.” Exact guidance on the sorts of requests that would trigger such review, however, was still under development at the time. It is unknown how the notification process was implemented in the absence of that guidance.

To date, the VA has failed to disclose any further records about sensitive review. CoA Institute successfully appealed the Office of the Secretary’s final response, and the agency’s Office of General Counsel ordered additional searches on remand. A precise deadline for a supplemental response was not given, but we will provide updates as any additional records become available.

In light of its commitment to open government, CoA Institute has been a leader in examining cases of sensitive review at other agencies, including the National Oceanic and Atmospheric Administration and the Federal Aviation Administration. We also have analyzed the practice at the Environmental Protection Agency on several occasions (here, here, and here). A recent press report concerning the EPA confirmed our warnings about the potential for delay when “sensitive” or politically charged records are targeted for special processing.

Regardless of which party or president controls the government, sensitive review poses a serious threat to government transparency. Alerting or involving political appointees in FOIA administration can lead to severe delays and, at its worst, contribute to intentionally inadequate searches, politicized document review, improper record redaction, and incomplete disclosure.

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

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

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12/11/2018

CoA Institute Highlights Deficiencies in Proposed Rule to Shift Burdensome Costs of At-Sea Monitoring to Commercial Fishermen

The New England Fishery Management Council (NEFMC), in coordination with the National Marine Fisheries Service (NMFS), seeks to approve and implement a controversial set of regulatory amendments that would create a new industry-funding requirement for at-sea monitoring in the Atlantic herring fishery and, moreover, create a standardized process for introducing similar requirements in other New England fisheries.  Under the so-called Omnibus Amendment, the fishing industry would be forced to bear the burdensome cost of allowing third-party monitors to ride their boats in line with the NEFMC’s supplemental monitoring goals.  This would unfairly and unlawfully restrict economic opportunity in the fishing industry.

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11/14/2018

CoA Institute opens government-wide investigation into agency implementation of the FOIA’s “foreseeable harm” standard

Cause of Action Institute (CoA Institute) launched an investigation last week into the Administration’s implementation of the Freedom of Information Act’s (FOIA) “foreseeable harm” standard.  That provision, which was added to the statute with passage of the FOIA Improvement Act of 2016, is 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.

Among other things, the FOIA Improvement Act of 2016 amended the FOIA to codify the “foreseeable harm” standard and require agencies to go beyond mere formulaic justifications for redacting records. Congress thus raised the standard by which an agency must evaluate its withholdings.  It is no longer enough that an agency make a case for the technical application of an exemption; it must instead articulate precise reasons why specific records, or portions of records, could be reasonably foreseen to harm a cognizable interest.  The unambiguous language of the “foreseeable harm” standard manifests Congress’s intent to require something more of an agency when it defends its withholding.

CoA Institute’s latest investigative efforts are particularly necessary given the complete failure of the Department of Justice Office of Information Policy (OIP)—which is tasked with providing guidance to the rest of the Executive Branch on proper administration of the FOIA—to publish any government-wide directives on the proper interpretation and implementation of the “foreseeable harm” standard.  Moreover, individual agencies have failed to proactively disclose any policies they may have developed, and federal courts have been slow to grapple substantively with the import of the new standard.

Based on records obtained from prior FOIA productions or publicly available sources, CoA Institute has identified passing references to agency-specific guidance on the “foreseeable harm” standard at three agencies, including the (1) Environmental Protection Agency, (2) U.S. Fish and Wildlife Service, and the (3) National Oceanic and Atmospheric Administration.  The actual substance of such guidance remains undisclosed.  But the records requested by CoA Institute in a recent batch of twenty-five FOIA requests should provide helpful insight into the administration of the FOIA and the “foreseeable harm” standard at these three agencies and many others.

Government accountably is a core pillar of our constitutional democracy.  And because the FOIA process is an integral vehicle for maintaining transparency, it is essential that we understand how agencies are upholding their statutory obligations, or whether they are politicizing the FOIA process by keeping information secret and out of public hands. CoA Institute will continue to track and publicize the responses to its requests as they are received.

The following agencies are part of CoA Institute’s “foreseeable harm” standard investigation:

  1. Department of State
  2. Department of the Treasury
  3. Internal Revenue Service
  4. Department of Defense
  5. Department of Justice
  6. Department of the Interior
  7. Department of Agriculture
  8. Department of Commerce
  9. Department of Labor
  10. Department of Health & Human Services
  11. Department of Transportation
  12. Department of Energy
  13. Department of Education
  14. Department of Veterans Affairs
  15. Department of Homeland Security
  16. White House Office of Management and Budget
  17. General Services Administration
  18. Small Business Administration
  19. Office of Personnel Management
  20. Council of Inspectors General on Integrity & Efficiency
  21. Federal Trade Commission
  22. Amtrak
  23. Administrative Conference of the United States
  24. Environmental Protection Agency
  25. Presidio Trust

A copy of the FOIA request directed to the Department of Defense, which is substantially similar to all the other requests, can be seen below:

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

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10/23/2018

CoA Institute Files Brief in Support of Effort to Make Georgia Legislature Comply with Open Records Act

Files 50-state survey with Georgia Appeals Court

Cause of Action Institute (CoA Institute) filed an amicus brief today in support of a lawsuit requiring Georgia’s legislature to comply with the state’s open records act. The brief includes a 50-state survey on whether other state legislatures are subject to open records laws. The results of the survey show that 38 states provide the public with access to legislative records, while only a small minority, 11 states, exclude their legislatures from public-disclosure laws. Of those that exclude their legislature, eight states do so in express statutory terms.

The brief is in support of a lawsuit brought by the Institute for Justice (IJ) after they sent a series of public records requests to offices of the Georgia legislature seeking access to information about the state’s licensure requirement for music therapists. Yes, you read that correctly, licensure requirements for music therapists. The legislature claimed it was categorically exempt from Georgia’s open records law, and the superior court agreed. The case is now before the Georgia Court of Appeals.

CoA Institute’s survey reveals three important trends that should inform the Court’s decision:

  • When a state’s open records law does not cover the legislature, it’s usually explicitly statutorily exempt. Georgia law does not explicitly exempt the legislature;
  • In the absence of an express exclusion, broad terms are commonly interpreted to include the legislature, either in whole or in part; and
  • When there is any remaining ambiguity, the presence of statutory exemptions concerning specific legislative offices or records implies that the legislature must be covered; Georgia has these exemptions.

When IJ filed its requests, and the court below issued its order, the Georgia Open Records Act included two exemptions for legislative records. The first of these provisions exempted records from a series of legislative offices: the Legislative and Congressional Reapportionment Office, the Senate Research Office, and the House Budget and Research Office. The second provision, which is still in force, exempts certain records from the Office of Legislative Counsel. These offices are all contained within the legislative branch. Neither exemption would make any sense if the General Assembly were not, by default, covered by the Open Records Act.

To accept Georgia’s position, as adopted by the court, would render the Act’s explicit, narrow exemptions mere surplusage, violating a core canon of statutory construction. Therefore, the Court of Appeals should recognize that the presence of the exemptions for certain legislative offices as means that the broader legislature must be covered. This interpretation would conform Georgia’s approach to the broad trends that Cause of Action Institute identified in the 50-state survey.

The full amicus brief is available here.

James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute. You can follow him on Twitter @JamesValvo.

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10/15/2018

CoA Institute Calls on Inspectors General Council to Revise Proposed FOIA Regulations

Cause of Action Institute (CoA Institute) submitted a comment last week to the Council of Inspectors General on Integrity and Efficiency (CIGIE) concerning the agency’s interim final rule implementing revised Freedom of Information Act (FOIA) regulations. CoA Institute explained that the agency’s new rule could cause confusion by directing staff to interpret the FOIA statute and CIGIE’s implementing regulations in light of outdated fee guidelines published by the White House Office of Management and Budget (OMB).

OMB published its Uniform Freedom of Information Fee Schedule and Guidelines in 1987. Although 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.  Indeed, 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, which incorporates an “organized and operated” standard, 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, however, no agency should direct its staff to consult them in any way as an authoritative guide to interpreting the law.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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