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10/12/2018

How a small 242-year-old Spanish fort is part of an ongoing effort to make the government more transparent and accountable

Presidio Trust Adopts CoA Institute’s Recommendations with Final FOIA Regulations

In 1776, more than 2,800 miles away from the battles of the American Revolution, a Spanish military fort was established on the tip of the San Francisco Peninsula. Today, this small slice of land is a federal park managed by an obscure federal agency called the Presidio Trust. Two hundred and forty-two years later, this former Spanish military fort is part of Cause of Action Institute’s ongoing effort to make all levels of the federal government more transparent and modernize the federal government’s FOIA process.

Earlier this week, the Presidio Trust finalized a rule implementing new Freedom of Information Act regulations and incorporating important revisions proposed by Cause of Action Institute in March 2018.

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 Most importantly, we urged the agency to remove outdated “organized and operated” language from the definition of a “representative of the news media.”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

For example, CoA Institute sued the Federal Trade Commission, and took its case all the way to the D.C. Circuit, to get the agency to acknowledge that its FOIA fee regulations were outdated and that it had improperly denied CoA Institute a fee reduction. In deciding that case, the D.C. Circuit issued a landmark decision clarifying proper fee category definitions and the application of fees in FOIA cases. CoA Institute cited this case to the Presidio Trust, and the agency took heed of the current case law, removing the outdated “organized and operated” standard from its final rule.

The statutorily superseded “organized and operated” standard originates with FOIA fee guidelines published by the White House Office of Management and Budget (OMB) in 1987.  Portions of the OMB guidance are no longer authoritative because they conflict with the statutory text, and judicial authorities, including Cause of Action v. Federal Trade Commission.

In 2016, the FOIA Advisory Committee and the Archivist of the United States both called on OMB to update its fee guidelines. CoA Institute filed a petition for rulemaking on the issue and is litigating the matter in federal court. Earlier this summer, OMB finally agreed to update its agency regulations, and amend its definition of a news media request, but the agency continues to refuse to update the 30-year-old fee guidelines.

Since the passage of the FOIA Improvement Act of 2016, CoA Institute has commented on 24 separate rulemakings.  Of the 13 that have been finalized, CoA Institute has succeeded in convincing nine agencies, including the Presidio Trust, to abandon the outdated “organized and operated” standard in favor of a proper definition of “representative of the news media.”

The remaining agencies that have accepted CoA Institute’s recommendations include the following:

Some agencies, including the National Credit Union Administration and the Federal Reserve, have deferred their consideration of CoA Institute’s recommendations and have promised to propose further rulemakings in the near future to address outstanding FOIA fee issues.

CoA Institute’s successful comment to the Presidio Trust is another small step in our efforts to provide effective and transparent oversight of the administrative state and ensure agency compliance with the FOIA.

See also:

Cause of Action Institute’s March 2018 public comment submitted to the Presidio Trust

Ryan P. Mulvey is Counsel at Cause of Action Institute

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08/20/2018

CoA Institute Submits Comment to FTC, Recommends Multiple Reforms to Curb Agency Overreach and Abuse

Cause of Action Institute (“CoA Institute”) today submitted a public comment to the Federal Trade Commission (“FTC” or “Commission”) in advance of a series of hearings concerning the agency’s efforts to evaluate its law enforcement and policy agenda, improve investigative processes, and otherwise reform its implementation of the FTC Act.

CoA Institute’s recommendations are based on considerable experience dealing with the FTC.  Our attorneys regularly practice before the Commission.  At present, CoA Institute represents D-Link Systems, a networking equipment manufacturer, which is fighting vague and unsubstantiated allegations that it placed consumers “at risk,” despite any evidence of actual or likely substantial injury.  CoA Institute also represents Vylah Tec, LLC, a family-run technical support company that has been targeted on suspicion of “deceptive” sales practices.  The FTC has failed to uncover any concrete evidence of wrongdoing, yet the company remains subject to a punitive injunctive order.  In the past, CoA Institute represented LabMD, Inc., a small cancer-detection company, against claims that it had unreasonable data-security practices.  And CoA Institute has directly litigated against the FTC over matters related to the Freedom of Information Act.

As explained in the comment, CoA Institute’s track-record with the FTC gives it unique insight into how the agency can be improved in four general areas:

Reforming the FTC’s Enforcement Processes

When FTC staff believes there has been a violation of the law, the agency typically threatens a regulated entity with an enforcement proceeding and attempts to settle the matter by consent order.  This is the outcome in most cases.  But these consent orders tend to be vague; they provide little guidance about the standards with which other regulated companies are expected to comply.  This opens the door to regulatory overreach.  The FTC should provide specificity in its consent orders.

The FTC also should refine its use of ex parte injunctions, which are an extraordinary remedy.  Without clearer guidance limiting the use of temporary restraining orders and asset freezes, the FTC may continue to raise due process concerns and impose unjustifiable hardships on regulated entities defending themselves in enforcement proceedings.

Concerns about due process likewise arise with respect to the FTC’s own rules of procedure, which differ in material ways from well-accepted rules of procedure and evidence in federal courts.  The Commission’s rules provide its staff a decided advantage, particularly given the relatively boundless resources available to the agency.  This is unfair and flouts the rule of law.

Finally, the FTC should eliminate its practice of seeking legal damages in excess of what the agency is statutorily authorized to pursue.  Although the FTC may request equitable monetary damages, including restitution or disgorgement of ill-gotten gains, in practice the damages sought by the Commission are pecuniary and ultra vires.  In short, they amount to the imposition of personal liability on defendants.  This approach cannot be countenanced by the FTC Act.

Increasing FTC Transparency

Related to the reforms of the FTC’s enforcement regime are the changes that should be made to its disclosure practices.  As mentioned, the FTC regularly relies on consent orders to settle matters before an actual enforcement proceeding is opened.  The use of these negotiated orders, which are party-specific and, again, vague, fails to provide the requisite notice of legal standards to which regulated parties are expected to conform.  The FTC should abandon efforts to treat consent orders as a “common law” body of precedent that shapes future obligations for regulated parties.

To the extent the FTC continues to use consent orders in this problematic way, however, it should aim to make the orders specific, with detailed analysis about the application of generally applicable standards.  The Commission also should proactively disclose the closing letters and closing memoranda from matters where enforcement is not pursued.  In these cases, the FTC has determined that a potential respondent is operating within legal bounds.  The Commission itself admits that these documents are useful, but they are not uniformly disclosed to the public.

Developing a Proper Understanding of “Substantial Injury”

At the heart of Section 5 of the FTC Act is the concept of “substantial injury.”  Without actual, or the threat of “likely,” substantial injury, the FTC can do nothing.  But the exact scope of what is “likely” and “substantial” harm is unclear.  The FTC does not define the terms precisely, and the body of consent orders that reflect settled matters provide little further detail.  What is clear, however, is that the FTC prefers to maintain ambiguity to facilitate its overreach.

The Commission should do a better job considering the countervailing benefits to consumers or competition provided by allegedly unfair acts or practices, too.  This can be done with rigorous cost-benefit analysis.  The FTC often focus on amorphous concepts of harm while ignoring how regulated entities’ practices benefit the consumer or, more broadly, competition in the marketplace.

How Congress Should Amend the FTC Act

Although CoA Institute’s recommendations are principally directed to the FTC, Congress should play a key role in reforming the Commission’s enforcement processes.  We propose that legislators amend the FTC Act to allow direct appeals to a U.S. Court of Appeals following an administrative law judge decision.  This would replace the current process by which an appeal is first made to the full Commission.  It would be better to permit respondents to seek appellate relief in an Article III venue, and bypass the full Commission, because the FTC has a remarkable track record of never losing its own administrative appeals.  Regulatory agencies should not be allowed to wear the dual hats of prosecutor and judge.

Ryan P. Mulvey is Counsel at Cause of Action Institute

Click here to access the full comment or read below.


 

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08/16/2018

Department of Veterans Affairs Discloses 2014 Guidance on Intra-Agency Consultations for FOIA Requests of “Substantial Interest” to Agency Leadership

The Department of Veterans Affairs (“VA”) has released a February 2014 memorandum reiterating the need for “consultations” on certain Freedom of Information Act (“FOIA”) requests, including those of “substantial interest” to the agency’s political leadership.  Cause of Action Institute (“CoA Institute”) obtained the record after submitting a disclosure request in the wake of Senate Democrats expressing concern over possible politicization of VA FOIA processes.

The memorandum, which is addressed to “Under Secretaries, Assistant Secretaries, and Other Key Officials,” indicates that VA regulations require intra-agency consultation or referral whenever incoming FOIA requests implicate records that originate with another component or prove to contain “information” of “substantial interest” to another VA office.  While “referral” entails the effective transfer of responsibility for responding to a request, “consultation” refers to discussing the release of particular records.

Consultation within an agency or with other entities can be a positive practice that ensures records are processed in accordance with the law.  Indeed, in some cases, “consultation” is required.  Executive Order 12600, for example, requires an agency to contact a company whenever a requester seeks confidential commercial information potentially exempt under Exemption 4.  Yet consultations occur in less-easily defined situations, too.

The FOIA only mentions “consultation” in the context of defining the “unusual circumstances” that permit an agency to extend its response deadline by ten working days.

[“Unusual circumstances” include] the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.

Unfortunately, the phrase “substantial interest” is not itself defined.  This is where problems begin.  The Department of Justice’s (“DOJ”) guidance on consultation suggests that a “substantial interest” only exists when records either “originate[] with another agency” or contain “information that is of interest to another agency or component.”  The DOJ’s FOIA regulations, and the Office of Information Policy’s model FOIA regulation, while not dispositive, do provide a little more context.  They suggest “consultation” should be limited to cases when another agency (or agency component) originated a record or is “better able to determine whether the record is exempt from disclosure.”

CoA Institute has long sought clarification on the exact nature of a “substantial interest.”  In November 2014, we submitted a public comment to the Department of Defense (“DOD”) arguing that consultation should be restricted to situations where another entity has created a responsive record or is “better positioned to judge the proper application of the FOIA exemptions, given the circumstances of the request or its familiarity with the facts necessary to judge the proper withholding of exempt material.”  Although our proposed definition was admittedly non-ideal—DOD did not accept that portion of our comment—it hinted at the troubling abuse, politicization, and unjustifiable delay that can occur with consultation.

The best example of such abuse and politicization is found with “White House equities” review, which is carried-out as a form of “consultation.”  As CoA Institute has repeatedly documented, however, this form of “consultation” extends far beyond “White House-originated” records or records containing information privileged by White House-controlled privileges.  Instead, pre-production White House review has been extended to almost anything that is potentially embarrassing or politically damaging to the President.  In May 2016, CoA Institute sued eleven agencies and the Office of the White House Counsel in an effort to enjoin the Obama Administration from continuing “White House equities” review, but that lawsuit was dismissed.  It is unclear to what extent President Trump has continued the practice, although at least one other oversight group has uncovered evidence of recent White House review of politically sensitive records from the Department of Housing and Urban Development.

As for the VA, the recently disclosed memorandum is silent about the precise meaning of a “substantial interest.”  But, at least for the “substantial interest” of the agency’s political leadership, the memorandum indicated that “[f]ollow-up guidance will be forthcoming.”

This is especially troubling.  Last week, I discussed how DOD failed to address Inspector General recommendations concerning the agency’s so-called “situational awareness” process for notifying political leadership about “significant” FOIA requests that may “generate media interest” or be of “potential interest” to DOD leadership.  I noted that agencies hide behind technical phrases—like “substantial interest” or “situational awareness”—while allowing non-career officials to inappropriately interfere with FOIA processes.  This could be what is happening with the VA.  Why is special “guidance” needed to identify the “substantial interest” that the VA Secretary may have in a specific request?  Does this not hint of the same sort of inappropriate “sensitive” review implemented at countless other agencies?

CoA Institute has appealed the VA Office of the Secretary’s response.  The 2014 memorandum was the only record produced in response to our FOIA request.  The “follow-up guidance” should also have been located and disclosed.  It must be made public.  Other VA offices are still processing portions of our request; the Office of Inspector General, for its part, was unable to locate records about recent investigations into FOIA politicization.  As further information becomes available, we will post additional updates.

Ryan P. Mulvey is Counsel at Cause of Action Institute

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08/8/2018

DoD Watchdog Details Agency’s Failure to Address FOIA Shortcomings

The Inspector General (“IG”) for the Department of Defense (“DOD”) recently published its annual compendium of unimplemented recommendations given to various DOD components and military departments in past investigations, audits, and inspections.  The list of unresolved matters is rather lengthy—some issues are more serious, others less so.  Relevant here, the watchdog highlighted two outstanding recommendations concerning the Freedom of Information Act (“FOIA”) and, more specifically, the formalization and publication of Pentagon guidance on “sensitive review.”

Both of these FOIA-related recommendations originate with an August 16, 2016 IG report that was prepared at the request of Senator Ron Johnson, Chairman of the Homeland Security and Governmental Affairs Committee (“HSGAC”).  Senator Johnson initiated an investigation in 2015 into interference by political appointees within the Obama Administration in agency FOIA processes.  Cause of Action Institute (“CoA Institute”) actively followed the HSGAC inquiry and sued one agency, the Central Intelligence Agency, for refusing to release its response to the Committee.

“Sensitive review” refers to the practice of giving certain FOIA requests extra scrutiny, usually because the records sought are potentially newsworthy or politically embarrassing.  In its most benign form, sensitive review involves notifying an agency’s public affairs team, communications specialists, or political leadership of incoming requests and outgoing productions.  At its worst, it entails the active involvement of non-career officials in processing and redacting records, which results in significant delays and sometimes completely prevents the disclosure of records that the public has a right to access.

Sensitive review has been increasingly in the news.  A week ago, I described CoA Institute’s new investigation into politicized FOIA at the Department of Veterans Affairs, following allegations raised by Democrats on the Senate Veterans’ Affairs Committee.  Last month, I explained how an official from the Environmental Protection Agency told Ranking Member Elijah Cummings at the House Oversight and Government Reform Committee that the Trump White House had supposedly added an “extra lawyer of review” for “politically charged” or “complex requests.”  And, earlier this year, I revealed records exposing the National Oceanic and Atmospheric Administration and the Federal Aviation Administration for heightening sensitive review by, among other things, targeting attorney and media requesters.

Although recent news reports suggest that “sensitive review” is a novel practice, that is not so.  Intra-agency FOIA politicization, and related practices such as “White House equities” review, did not originate with the Trump White House, but date to the Obama Administration and beyond.  Indeed, as I have explained here and here, the Obama White House was particularly notorious for its efforts to delay and block disclosure of politically damaging or otherwise newsworthy records.  President Trump is taking advantage of President Obama’s legacy of secrecy.

All this is confirmed by the case of the DOD.  In its 2016 report, the IG explained that it had failed to identify any instances of “noncareer officials” either “adversely affecting” or “unduly influencing” the agency’s FOIA process.  But the watchdog’s cautious language and technical phrases failed to mask other troubling practices, including a special “situational awareness process” for “significant” requests.  DOD guidelines governing that process still have not been incorporated into the agency’s FOIA regulations, FOIA manual, or FOIA directive.  (The IG also faulted DOD for failing to update its regulations in light of the Open Government Act of 2007 and Executive Order 13392, but that was remedied with the finalization of new regulations in February 2018.)

CoA Institute has obtained copies of two versions of DOD’s “situational awareness” protocol (here and here), one of which dates to December 2012.  Both records similarly define “significant” requests—that is, requests deserving of special treatment—to include anything likely to “generate media interest” or be of “potential interest” to DOD leadership.  Requests implicating Members of Congress or President Obama, even during his time as a senator, also were included.

In addition to “situational” notification, component FOIA officers were expected to provide weekly updates on “significant” requests to the front office and delay any response or production of records until clearance was provided by departmental disclosure leadership.

This requirement was emphasized for “White House or Congressionally related” FOIA requests.

Although alerting or involving agency leadership, including political appointees, in FOIA administration does not violate the law per se—and may, in rare cases, be appropriate—there is never any assurance that the practice will not lead to severe delays of months and even years.  The danger for politicization is evident.  “Notification” and “situational awareness” can too easily lead to political leadership controlling the disclosure of public records.  That result cannot be tolerated.

Although DOD has yet to incorporate its sensitive review protocol into formal and publicly available guidance, it is also unknown whether the policy has changed or been enhanced in any way in recent years.  Considering the unresolved IG recommendations, CoA Institute has submitted a FOIA request to DOD seeking further information.  We will continue to report on the matter as records become available.

Ryan P. Mulvey is Counsel at Cause of Action Institute



2018 08 08 Final and Approved DOD Sensitive Review FOIA Request (Text)

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08/1/2018

Democratic Senators Seek Records about “Sensitive Review” from VA, Ask Inspector General to Open Investigation into FOIA Politicization

Last week, a group of eight Democratic Senators, led by Ranking Member Jon Tester of the U.S. Senate Committee on Veterans’ Affairs, wrote to the Department of Veterans Affairs (“VA”) to express concern over the possible politicization of the agency’s Freedom of Information Act (“FOIA”) processes.  The senators requested various records concerning the involvement of political appointees in the FOIA decision-making process, as well as other “sensitive review”-type policies.  They also wrote to the VA’s Inspector General to request an investigation into these allegations.  Among other things, the legislators sought “an assessment of the role that political appointees play in the FOIA process, what types of oversight exist to ensure employees are providing all responsive material, and who makes determinations about what is or is not responsive to a request[.]”

Sensitive FOIA review has been increasingly in the news.  The most recent reports have focused on the Environmental Protection Agency (“EPA”).  According to EPA Chief of Staff Ryan Jackson, the Trump Administration has added an “extra layer of review” for “politically charged” or “complex requests.”  Other officials claim that “sensitive review,” and similar practices such as “White House equities” review, actually originated with the Obama White House.  This latter claim is better supported by the historical record, as I (here and here) and others (here) have repeatedly argued.  The Obama Administration was notorious for its efforts to delay and block the disclosure of politically damaging or otherwise newsworthy records.  This is not to say the Trump Administration is innocent—it has likewise contributed to obfuscation and an overall erosion of transparency.  My posts earlier this year on sensitive review at the National Oceanic and Atmospheric Administration and the Federal Aviation Administration demonstrate as much.

In the case of the VA, the agency’s watchdog previously argued, in 2010 and 2015, that there has not been regular inference by political appointees in the FOIA process.  But the public has long known of internal practices at the VA that likely contribute to politicization.  In August 2007, for example, the agency issued a directive concerning the processing of “high visibility” or “sensitive” FOIA requests that implicate potentially embarrassing or newsworthy records.

The potential for politicization only worsened during the Obama Administration.  An October 2013 memorandum instructed all Central Office components to clear FOIA responses and productions through Jim Horan, Director of the VA FOIA Service.  (Mr. Horan is still part of the leadership in the Office of Privacy and Records Management.)  This clearance process imposed a “temporary requirement” for front office review—although it is unknown whether the practice continues—and entailed a “sensitivity determination” leading to unnamed “specific procedures.”

Regardless of which party or president controls the government, sensitive review raises serious concerns.  Although alerting or involving political appointees in FOIA administration does not violate the law per se—and may, in rare cases, be appropriate—there is never any assurance that the practice will not lead to severe delays of months and even years.  At its worst, sensitive FOIA review leads to intentionally inadequate searches, politicized document review, improper record redaction, and incomplete disclosure.  When politically sensitive or potentially embarrassing records are at issue, politicians and bureaucrats will always have an incentive to err on the side of secrecy and non-disclosure.

Considering the new allegations of FOIA troubles at the VA, CoA Institute has submitted a FOIA request seeking further information about the agency’s sensitive review policy.  We will continue to report on the matter as information becomes available.

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




 

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07/31/2018

Millennium Challenge Corporation Adopts CoA Institute’s Recommendations for FOIA Regulations

The Millennium Challenge Corporation (“MCC”) finalized a rule at the end of last week implementing new Freedom of Information Act (“FOIA”) regulations and incorporated important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency in March 2018.  The MCC is a small agency tasked with delivering foreign aid to combat global poverty.

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

In deciding that case, the D.C. Circuit issued a landmark decision clarifying proper fee category definitions and the application of fees in FOIA cases.  CoA Institute cited this case to the MCC and the agency took heed of the current case law, removing the outdated “organized and operated” standard from its final rule.

CoA Institute also asked the MCC to remove language directing 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 actually the source of the “organized and operated” standard, are simply no longer authoritative—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 threatens to cause 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 MCC has decided not to alter its reference to the OMB guidelines (and did not provide an explanation for rejecting that portion of CoA Institute’s comment), 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-six separate rulemakings.  Of the twelve that have been finalized, CoA Institute has succeeded in convincing seven agencies to abandon the outdated “organized and operated” standard in favor of a proper definition of “representative of the news media,” including the following:

Some agencies, including the National Credit Union Administration and the Federal Reserve, choose to defer on CoA Institute’s recommendations and have promised to propose further rulemakings in the near future to address outstanding fee issues.

CoA Institute’s successful comment to MCC 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

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07/23/2018

Federal Judge Confirms Agencies’ FRA Record Recovery Efforts Must Include Reaching Out to Third-Party Email Providers

Last Friday, Judge Trevor McFadden of the U.S. District Court for the District of Columbia granted the federal government’s second motion to dismiss a lawsuit to compel Secretary of State Mike Pompeo and U.S. Archivist David Ferriero to fulfill their statutory obligations under the Federal Records Act (“FRA”) to recover former Secretary of State Colin Powell’s work-related email records from a personal account hosted by AOL, Inc.  Cause of Action Institute (“CoA Institute”) filed the lawsuit in October 2016 after then-Secretary John Kerry and Archivist Ferriero failed to act on CoA Institute’s FRA notice and Freedom of Information Act (“FOIA”) request.

Although Judge McFadden’s dismissal is a technical defeat, albeit on procedural grounds, CoA Institute’s work in this case, and in another FRA case involving Hillary Clinton, is still a success.  Taken together, these cases have the raised the bar for what federal agencies must do when records go missing.  In future cases, agencies will be required, at the least, to reach out directly to third-party email providers in an attempt to recover work-related email records and may not rely on self-serving statements from agency officials that such records no longer exist.

In the recent motion, the government again sought dismissal on mootness grounds, arguing that Secretary Powell no longer had access to the account he used during his tenure at the State Department and, moreover, it would be “technologically impossible” for AOL to recover any records from its servers.  Correspondence from Secretary Powell and various AOL employees was used to support the government’s claims.  But the agency reached out to Secretary Powell and AOL only after Judge McFadden rejected a similar motion to dismiss in January 2018, holding that there was still a “substantial likelihood,” based on the record, that Secretary Powell’s work-related email could be recovered if the State Department were to leverage the full law enforcement authority of the federal government.  Judge McFadden looked to the Department of Justice’s successful recovery of former Secretary Hillary Clinton’s email from computer hard drives and mobile devices as a guide.

In opposition to the government’s second motion, and in support of its own motion for summary judgment, CoA Institute argued that the government had failed to provide enough evidence to establish fatal loss of the email records at issue, particularly since Secretary Pompeo and Archivist Ferriero continued to refuse to involve the Attorney General in compulsory or forensic recovery efforts.

This time around, however, the judge was convinced that the government had done enough and additional efforts would be “pointless.”  Nevertheless, in future cases, agencies will need to undertake substantial efforts to prove fatal loss, even if that means contacting third-party commercial communications providers to determine the recoverability of records on their servers or networks.

The alienation of federal records will likely continue with the fast-paced development of technology and alternative means of communication within the federal bureaucracy.  CoA Institute is committed to ensuring that the law follows these developments and holds government employees accountable.

Ryan Mulvey is Counsel at Cause of Action Institute.

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