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03/30/2018

CoA Institute Lawsuit Prompts Archivist to Examine Potential Record Destruction at NOAA

Cause of Action Institute (“CoA Institute”) filed a lawsuit last summer against the National Oceanic and Atmospheric Administration (“NOAA”) seeking copies of electronic records created through the agency’s Google-based email platform.  These types of records are commonly known as “instant messages.”  The Freedom of Information Act (“FOIA”) requests at issue (available here and here) also sought formal agency guidance on the retention of “Google Chat” or “Google Hangouts” messages.  We had already learned, through earlier investigation, that at least one internal NOAA handbook, dating from March 2012, instructed agency employees to treat all chat messages as “off the record,” raising concerns about potential unlawful record destruction at NOAA.

Media Coverage of CoA Institute’s Lawsuit Tipped-off the National Archives

The Daily Caller News Foundation reported on CoA Institute’s lawsuit shortly after it was filed.  Officials at the National Archives and Records Administration (“NARA”), which is tasked with policing federal records management across the government, took notice of the story and subsequently opened an inquiry on July 17, 2017 into CoA Institute’s allegations.  NARA gave NOAA “30 calendar days” to indicate how it planned to address the retention of “Google Chat and Skype messages,” and, if necessary, to report an “unauthorized disposition,” that is, the improper destruction of records.

As far as we know, eight months later, NOAA still has not responded to NARA.  We only learned about the NARA inquiry due to the agency’s recent decision to proactively disclose information on all pending investigations into the unauthorized disposition of federal records.  We have filed FOIA requests with NOAA and NARA in order to discover the status of the inquiry, and we will provide further updates as more details become available.

The fact that CoA Institute had to file a FOIA request to obtain NOAA’s response to the NARA inquiry, as well as related communications, shows that NARA’s proactive disclosure regime on this topic could be improved.  NARA should add another category of materials to its webpage that includes all correspondence received from an agency under investigation for the improper treatment of records.

NOAA’s Questionably Legal Google Chat Policy Flouts NARA Guidance

It goes without saying that an agency-wide policy to treat all chat messages as categorically “off the record” is problematic.  Even if an agency expects its employees to keep business-related communications, which could qualify for retention under the Federal Records Act (“FRA”), off a chat-based platform, it is reasonable to assume that some messages worthy of preservation will be sent or received over instant messaging.  NARA Bulletin 2015-02 makes that point clear.  And even if some instant messages were not worthy of long-term historical preservation, they would still qualify as transitory records subject to NARA-approved disposition schedules.

A categorical policy such as the one that NOAA has adopted creates a moral hazard.  Officials who want to thwart transparency can communicate with chat or instant messaging and, at least in this case, there is no way for the agency, NARA, or the public to catch them in the act.  NOAA officials have been observed using Google Chat to communicate during a contentious meeting of the New England Fishery Management Council.  If an agency like NOAA refuses to police how its employees are using the chat function on their Google-based email accounts, it should disable the function all together.

Regardless of whether electronic messages created through Google Chat or Google Hangouts are subject to the FRA, they may still be subject to the FOIA, which defines an “agency record” in broader terms than the FRA’s definition of a “federal record.”  By failing to implement any sort of mechanism for preserving chat messages—even for the briefest period—NOAA is depriving the American public of access to records that could be particularly important in showing how the agency operates and regulates.

The worst part of this saga is that NOAA knew it was treading a thin line in deciding to treat Google Chat messages as “off the record.”  According on documents obtained through the FOIA, NOAA’s lawyers and records management specialists were aware that electronic messages would need to be saved for public disclosure if Google Chat were “on the record.”  Notes from an October 20, 2011 meeting reflect this:

NOAA also recognized that chat messages could, in theory, be subject to the FRA.  Yet NOAA Records Officer Patricia Erdenberger reasoned that, by treating Google Chat as “off the record,” the agency’s FRA obligations could be bypassed.  Making a questionable analogy to phone calls, Erdenberger suggested that chat messages be “considered transient electrons.”

Agencies must do a better job at keeping pace with evolving forms of technology.  As one of my colleagues has argued, the use of non-email methods of electronic communication—including text and instant messaging, as well as encrypted phone applications like Signal—has serious implications for federal records management.  The Department of Commerce, NOAA’s parent agency, has not updated it policy for handling electronic records since May of 1987.  NARA, for its part, has been critical of the Department’s failure to revise this guidance, which is “heavily oriented towards the management of digital records on storage media such as diskettes and magnetic tape.”  Still, thirty years is a long time for such inaction, even for the federal government.  The transparency community must therefore intensify its efforts to hold the government accountable until more effective ways of handling electronic records are introduced.

Ryan Mulvey is Counsel at Cause of Action Institute

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03/22/2018

White House Directive on Congressional Oversight Requests Classified as “Presidential Record,” Not Subject to Disclosure under the FOIA

A report published earlier this month by the General Services Administration (“GSA”) Inspector General (“IG”) provides new and illuminating, as well as concerning, details about the White House’s directives to agencies for responding to congressional oversight requests from Democratic legislators and other individual members of Congress.  The IG report confirms that during the first seven months of the Trump Administration, the GSA implemented “a series of . . . unpublished policies that effectively amended” its procedures for handling congressional communications, just as the press and transparency community alleged.  The report also concludes that the GSA’s latest published guidance, which was released in July 2017, is ambiguous because it does not reflect oral policies still in force and cites to a controversial May 2017 Department of Justice Office of Legal Counsel (“OLC”) opinion that the White House has publicly rejected.  Most alarmingly, the IG report identified the underlying written basis for the GSA’s “oral” policy as a White House-created document, which is marked “presidential record” and is therefore “excluded from public disclosure under the Presidential Records Act.”

Cause of Action’s Investigation into the GSA Nondisclosure Policy

For the past year, Cause of Action Institute (“CoA Institute’) has been investigating rumors—now confirmed by the GSA IG—that the White House is directing federal agencies to ignore congressional oversight requests from Democratic legislators and individual Members who are not committee chairmen.  Various reports in the media (here and here, for example) have detailed contentious interactions between congressional staffs and employees at the GSA and the Office of Personnel Management (“OPM”).  According to some sources, White House attorney Uttam Dhillon is responsible for instructing agencies “not to cooperate” with record requests from the minority.

CoA Institute filed a Freedom of Information Act (“FOIA”) request with the GSA in an effort to verify what the Trump Administration’s actual policy might be.  We asked for records concerning the “new policy” cited by the GSA’s Acting Administrator in testimony before Congress.  We also asked the GSA for records reflecting directives or guidance originating with the White House.  When the GSA finally provided its response, it left much to be desired.  The GSA only released two documents: a February 20, 2015 order on congressional and intergovernmental inquiries, which is now obsolete, and an April 15, 2009 White House memo that CoA Institute already had made publicly known in June 2013.

We appealed that final determination, which prompted the GSA to release two additional records created during the Trump Administration.  One of those records, a copy of the agency’s “updated Agency policy,” also known as GSA Order ADM 1040.3, was remarkable.  As I discussed in a September 2017 op-ed in The Hill, although the White House had by then disavowed the OLC opinion letter as a statement of government-wide policy following harsh criticism by Senator Chuck Grassley, GSA Order ADM 1040.3, which is dated July 24, 2017, expressly cites to the OLC opinion as the GSA’s—and, presumably, the White House’s—official policy.

We then wrote to the GSA seeking public clarification, but that request went unanswered.

Our efforts to investigate OPM have been less fruitful.  Last month, the agency responded to our FOIA request by disclosing a single email linking to the OLC opinion, but without further details concerning the opinion’s implementation or continued relevance.  Our appeal challenging the adequacy of OPM’s search efforts, as well as its redaction of the responsive email, is pending.

The GSA’s Confusing Use of “Oral” Policies for Nondisclosure

The IG’s report goes into significant detail describing the evolution of the GSA’s nondisclosure policy under President Trump, but a few key findings stand out:

  • The GSA developed a series of “oral” policies that “effectively amended” the GSA’s published procedures for dealing with Congress. These policies were formulated by the agency’s Senior White House Advisor and Acting General Counsel and disseminated throughout different agency components through “small in-person meetings,” “telephone calls,” and “hallway conversations.”  This sort of official but unwritten policy development violated the GSA’s “internal policymaking directives.”
  • This “oral” policy was continually modified. In March 2017, for example, the GSA decided to permit the disclosure of publicly available information or records that would otherwise be available under the FOIA to a non-congressional requester.  At this point, the GSA’s FOIA office started to process certain requests before providing records to the congressional affairs office for final release.  These changes were based on “guidance”—presumably, written—from the White House.
  • In another instance, the GSA started to treat congressional requests under the “Seven Member Rule” as seven individual requests, thereby avoiding mandatory disclosure as required by 5 U.S.C. § 2954. This development was prompted by Ranking Member Elijah Cummings and other Democrats on the House Oversight Committee investigating the Trump Old Post Office lease.
  • Once the GSA’s FOIA office started processing congressional requests, agency employees were unsure whether the FOIA’s procedural safeguards—such as the right to file an administrative appeal—applied.
  • In one remarkable case, despite instructions from Chairman Jason Chaffetz of the House Oversight Committee to produce agency records to both the Majority and Minority staffs, the GSA intentionally neglected to do so. A senior agency advisor reported to the GSA White House Liaison and Senior White House Advisor that the “cc to [Ranking Member] Cummings” had been “take[n] off” the response to Chairman Chaffetz.
  • The IG concluded that GSA’s nondisclosure policies did not contain vital whistleblower protection language required under federal law. Although the GSA has contested the IG’s interpretation of the law and its application in this context, the agency nevertheless agreed to change its published policies to include explicit whistleblower protection language.

The “Presidential Record” Underlying the Ongoing Problem

On May 19, 2017, the White House Office of Legislative Affairs provided the GSA with some “written guidance” on congressional oversight requests.  This guidance apparently reflected the “oral” policy that had already developed at the GSA, which limited disclosures for non-chairmen to publicly available or publicly accessible records.  This policy, and the underlying White House guidance, were the basis for the GSA Acting Administrator’s testimony before Congress.  And it is this guidance that was marked as a “presidential record,” thereby removing it from access under the FOIA.

Continued Uncertainty about the GSA’s Actual Policy

According to the IG, GSA Order ADM 1040.3 is ambiguous because it does not reflect the unwritten policies that have remained in place at the GSA as late as December 2017, as reported by some officials.  Indeed, two weeks after the order’s publication, and after the White House rejected the OLC opinion, the GSA’s Acting Commissioner for Public Buildings, in testimony before Congress, reiterated the GSA’s practice of responding only to committee chairmen.  He intimated that this was “in line with the current Administration’s policy on responding to oversight questions.”

Ultimately, the lesson here is that unwritten policies, besides being bad from a transparency perspective, lead to confusion and inconsistency.  The GSA IG concluded that many high-ranking officials at the GSA never fully understood the actual policy was for responding to congressional requests.  Nor could they answer vital questions: What was the legal basis, if any, for the GSA’s policy?  What was an “oversight” request?  Were congressional members in their individual capacity really subject to the FOIA with all of the statute’s procedural safeguards?  What role did the White House have in formulating the policy?  Was it agency-specific, or indicative of a wider, government-wide policy change?

In response to the IG’s revelations, the GSA has agreed to remove any reference to the OLC opinion in Order ADM 1040.3.  But the agency still insists on qualifying its commitment to processing disclosure requests from individual members based on unidentified “longstanding agency and Executive Branch policies.”

CoA Institute will continue to investigate this matter and the extent to which “oral” policies have influenced the processing of congressional oversight requests at other agencies.  In the meantime, we have submitted a new FOIA request to the GSA, explicitly seeking the so-called “presidential records” that were the basis for the GSA’s unwritten policies.  It is not clear why the Presidential Records Act should even apply in this instance.

Ryan Mulvey is Counsel at Cause of Action Institute

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03/19/2018

CoA Institute calls on Millennium Challenge Corporation to revise problematic FOIA rule

Cause of Action Institute (“CoA Institute”) submitted a comment today to the Millennium Challenge Corporation (“MCC”) concerning the agency’s publication of a deficient rule that proposes revisions to the agency’s Freedom of Information Act (“FOIA”) regulations.  The MCC is a small agency tasked with delivering foreign aid to combat global poverty.  CoA Institute explained that the MCC’s problematic FOIA rule failed to provide a definition of a “representative of the news media” that conforms with statutory and judicial authorities.  The proposed regulations could also cause confusion by directing requesters to consult outdated fee guidance published by the White House Office of Management and Budget (“OMB”).

News Media Fee Category

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

Congress amended the FOIA to provide a straightforward and comprehensive definition of a “representative of the news media.”  The MCC—and all other agencies—should not attempt to modify that definition or introduce additional hurdles for news media requesters.

OMB Fee Guidelines

The MCC’s problematic FOIA rule also proposes to introduce an explicit reference to the OMB’s 1987 FOIA fee guidelines, which are the genesis of the “organized and operated” standard.  The MCC should strike this reference because the OMB fee guidelines are outdated and unreliable.  Over the past thirty years, Congress has amended the FOIA on numerous occasions, courts have developed overriding FOIA jurisprudence, and technology has evolved in significant ways.  Yet OMB has made no effort to revisit its fee guidance.  It should not be used as a reference point for the proper administration of the FOIA.

In 2016, the FOIA Advisory Committee and the Archivist of the United States called on OMB to update the fee guidelines.  CoA Institute even filed a petition for rulemaking on this issue.  Last November, we filed a lawsuit to compel the agency to provide a response to that petition.  Until they are revised, the MCC should not direct requesters to OMB’s fee guidelines.

Other Agencies Have Followed CoA Institute’s Advice

CoA Institute has succeeded in convincing a number of other agencies to abandon the OMB’s “organized and operated” standard in favor of a proper definition of “representative of the news media” in line with the FOIA statute and controlling case law.  Those agencies include, among others, the Consumer Product Safety Commission, Office of the Special Counsel, Department of Defense, U.S. Agency for International Development, and Department of Homeland Security.  We hope that the MCC will similarly revisit its problematic FOIA rule and eliminate the “organized and operated” standard in lieu of a proper definition of a news media requester.

Ryan Mulvey is Counsel at Cause of Action Institute

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03/15/2018

Inspector General Admits to Flawed FOIA Rule and Intends to Request HUD Revisions

The Department of Housing and Urban Development (“HUD”) Office of Inspector General (“OIG”) has responded to Cause of Action Institute’s (“CoA Institute’) letter requesting that the watchdog recall and revise its direct final rule implementing changes to its Freedom of Information Act (“FOIA”) regulations.  CoA Institute criticized the OIG’s cross-referenced definition of a “representative of the news media,” which improperly retained the outdated “organized and operated” standard, rather than incorporating the statutory definition.  The OIG now admits that its flawed FOIA rule “does not track the current statutory language,” and agrees that the D.C. Circuit’s decision in Cause of Action v. Federal Trade Commission is controlling.

As we previously explained, the OIG, as an independent component of HUD, maintains its own rules regulating public access to its records.  Yet the OIG still relies on department-wide FOIA policy in certain respects, including HUD’s general provisions for charging fees to requesters.  With respect to the definition of a news media requester, HUD’s regulations do not comport with statutory and judicial authorities.

Although the HUD watchdog concedes it promulgated a flawed FOIA rule, it will not commit to revising its regulations due to the “difficulty” of doing so.  The OIG has instead forwarded CoA Institute’s letter to HUD with the request that the agency-wide regulations be amended.

Unfortunately, HUD issued its own final rule implementing revised FOIA regulations back in January 2017.  When it did so, the agency did not solicit public feedback.  CoA Institute nevertheless submitted a comment to explain the deficiency in HUD’s rule.  That comment went unanswered and, to date, HUD has not indicated any intention of revisiting its flawed rule.  It is promising that the OIG agrees there is a serious deficiency in its regulations.  Considering that acknowledgement, though, the agency should undertake efforts now to fix the obvious error.

Ryan Mulvey is Counsel at Cause of Action Institute

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03/14/2018

GAO audit of Office of Special Counsel referrals under FOIA reveals weakness in the statute

An audit report released yesterday by the Government Accountability Office (“GAO”) provides alarming details concerning the lack of referral of cases of wrongful withholding under the Freedom of Information Act (“FOIA”) to the Office of Special Counsel (“OSC”).  Since at least 2008, neither the Department of Justice (“DOJ”) nor any federal court has referred a single case to the OSC so that the agency could investigate whether disciplinary action would be warranted for the arbitrary or capricious withholding of records litigated in court.  The publication of the audit coincided with the testimony of the GAO’s Director of Information Technology Management Issues, David Powner, at a hearing before the Senate Judiciary Committee.

OSC’s Investigatory Role under the FOIA

Congress envisaged a special role for the OSC in policing agency behavior with respect to the withholding of records.  Section 552(b)(4)(F) of the FOIA obliges the OSC to investigate whether disciplinary action is warranted against an official responsible for withholding records if a federal court has (1) ordered the production of those records, (2) assessed reasonable attorney fees and litigation costs against the government, and (3) issued a “written finding” that the case “raises questions whether agency personnel acted arbitrarily and capriciously with respect to the withholding.”

Once these conditions are met in any given case, the Attorney General must refer the matter for investigation to the OSC, and the agency at issue must take any corrective action recommended by the OSC.  If the government fails to comply, a court can punish a responsible official with contempt.  Apart from the FOIA, the OSC also has independent authority under 5 U.S.C. § 1216(a)(3) to investigate most allegations of arbitrary or capricious withholding of records.

No Referrals Have Been Made to the OSC Over the Past Ten Years

After examining various records and interviewing officials at the DOJ and OSC, the GAO concluded that, since 2008, no court orders have issued in a FOIA lawsuit such that referral to the OSC was appropriate.  At the same time, between 2013 and 2016, requesters in at least six cases nevertheless sought a court-ordered referral to the OSC.  In all six cases, the court denied the requests.

The referral provisions of the FOIA are toothless in practice.  According to one source, the OSC has investigated only two possible cases of punishable wrongdoing.  In Holly v. Acree, the OSC concluded that it could not determine the “officer or employee who was primarily responsible for the [wrongful] withholding.”  And in Long v. Internal Revenue Service, the OSC closed its investigation without any public findings.  Furthermore, despite numerous allegations and some instances of field investigation over the years, it does not appear that the OSC has ever initiated a disciplinary proceeding under Section 1216(a)(3).

Judicial decisions likewise exemplify the reticence of courts to refer cases to the OSC.  The judicial branch is already highly deferential to the government when assessing justifications for the treatment of FOIA records.  That deference appears to affect the analysis of whether it is appropriate to issue a “written finding” that an official or employee may have personally acted wrongfully.  For example, in the case of Kempker-Cloyd v. Department of Justice, No. 97-253, 1999 U.S. Dist. LEXIS 4813 (W.D. Mich. 1999), the court acknowledged that an agency failed to act in a timely manner, to conduct adequate searches, or to comply with the FOIA “in good faith.”  On further order, the court also determined the agency was liable for attorney fees and litigation costs.  Yet the court still did not believe there was evidence suggesting the agency acted in an arbitrary or capricious manner.  In a more recent case, Consumer Federation of America v. Department of Agriculture, 539 F. Supp. 2d 225 (D.D.C. 2008), when faced with a motion to refer the case to the OSC after the agency conducted an inadequate search and lost responsive records, the court sidestepped the issue altogether by ordering the agency to file a supplemental declaration confirming its promise—made during oral argument—to revise the process for handling requests for electronic records and to correct the problems that led to the loss of the records at issue.  Countless other examples of judicial refusal to engage with the OSC referral provisions abound.

The FOIA Should Be Strengthened to Hold Agency Officials Responsible for Wrongful Withholdings

As it stands, agency officials are effectively unaccountable for their decision-making under the FOIA.  There is no punishment for an agency when it mishandles a request or forces a requester to file a lawsuit to obtain records or fight wrongful withholdings.  Indeed, it is the taxpayer who ends up footing the bill for the government’s litigation costs.  The individuals responsible for processing requests, therefore, have little incentive aside from their personal commitment to transparency to ensure that agency decision-making is consistent with the law.  Even if a requester prevails in court, he faces the uphill battle of securing attorney fees and recoverable litigation costs, not to mention the tremendous difficulty of obtaining a written finding of arbitrary and capricious behavior on the part of the agency.

The requester community deserves better.  If agency officials knew that they would be held personally responsible for their administration of the FOIA, we would have a more efficient disclosure regime and a more transparent government.  The OSC can and should play an important role here, but the FOIA, as implemented, does not currently facilitate that endeavor.  Congress should undertake efforts to remedy the situation.

Ryan Mulvey is Counsel at Cause of Action Institute

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03/12/2018

Bankrupt: Terry McAuliffe’s Crony Green Energy Venture Folds

There has been yet another development in the saga of GreenTech Automotive—the “green energy” car company that sought to profit from its ties to former Virginia Governor Terry McAullife, Chinese businessman Charles Wang, and Secretary Hillary Clinton’s brother, Anthony Rodham.  According to papers filed in federal court last month, GreenTech and its sister corporations, including Gulf Coast Funds Management—GreenTech’s “cash-for-visas” outlet—are declaring bankruptcy.

GreenTech cites various reasons for its financial woes but emphasizes negative publicity stemming from critical reportage by the Franklin Center’s Watchdog.org, as well as investigations into possible fraud and wrongdoing by the Securities and Exchange Commission and the Department of Homeland Security Office of Inspector General.  GreenTech’s bankruptcy petition recounts that the company “received investments aggregating $141.5 million from a total of approximately 283 investors,” nearly all of whom were Chinese nationals lured by the promise of permanent residency through the EB-5 Immigrant Investor Regional Center Program.  (The future of the EB-5 visa program remains undecided by Congress.)

But nobody seems to know where all that money has gone, and former Governor McAuliffe and his former partners have never adequately explained its disappearance.  Although GreenTech refers to “personnel issues” and “other difficulties experienced in pursing” an “ambitious business plan,” there is little evidence that much capital was ever spent on employee salaries or manufacturing, let alone research and development.  As recently as May 2016, GreenTech employed only seventy-five people, never finished building a fully-operational manufacturing plant, and never sold a single vehicle.

In addition to the newly-initiated bankruptcy proceedings, GreenTech is still embroiled in several ongoing lawsuits.  The State of Mississippi sued the venture last November to recover $6 million in taxpayer-funded loans and to seek forfeiture of the land provided for the never-realized car factory.  GreenTech originally promised to create upwards of 25,000 jobs in the state, but later signed a pledge to invest $60 million and create 350 full-time jobs.  Even those promises came to naught.

GreenTech—and Governor McAuliffe in his personal capacity— is also defending itself in a lawsuit filed by thirty-two Chinese nationals, who describe the crony venture as being part of a “$120 million scam.”  Because GreenTech never created a sufficient number of qualifying jobs under the EB-5 visa program’s rules, these foreign investors face revocation of their green cards and deportation.  They seek damages of at least $17.92 million.  The court is now considering GreenTech’s motion to dismiss, as well as a request that proceedings be stayed pending resolution of the bankruptcy petition.

As I have previously discussed, GreenTech has been a suspicious operation from the start.  It thrived only as long as it could rely on its politically-connected principals.  When Cause of Action Institute released its investigative report on GreenTech in September 2013, we warned how the company’s exaggerated job-creation estimates, questionable advertising, and readiness to take advantage of favorable political connections, could violate federal law and be part of a larger scheme to defraud investors.  It appears those warnings are now proving prescient.

Unfortunately, a crony venture such as GreenTech Automotive is not an outlier.  For years, taxpayers have subsidized failed businesses that rely on political connections to transfer wealth to their principals, who then walk away without consequences while leaving others to pick up the pieces.  It is time to get the government and the American taxpayer out of the business of picking economic winners and losers.

Ryan Mulvey is Counsel at Cause of Action Institute

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03/12/2018

NOAA Records Demonstrate Expansion of Sensitive Review FOIA Procedures

The Freedom of Information Act (“FOIA”) ensures all citizens equal and open access to records of the administrative state.  It should come as no surprise, however, that the Executive Branch has never been thrilled about disclosing its records to the general public.  At various times, the White House has orchestrated efforts to frustrate prompt disclosure of records under the FOIA, and President Trump is no exception.  In its first year, the Trump Administration has expanded the so-called sensitive review process.  In doing so, agencies have denied FOIA requesters their statutory right of prompt access to government records.

Sensitive review refers to the practice of giving certain FOIA requests extra scrutiny, usually because the records they seek could solicit media attention once disclosed.  The sensitive review process may involve an agency’s public affairs team or other communications specialists, and often includes political appointees at the agencies involved.  The process delays and sometimes prevents disclosure of records that the public has a right to see.

Recently, Cause of Action Institute (“CoA Institute”) learned that at least one agency—the National Oceanic and Atmospheric Administration (“NOAA”)—has expanded the sensitive review process by putting FOIA requests from attorneys into a special class.  In some cases, the agency has done this out of fear it would release records that could be used against it in litigation.  These evasive tactics violate the spirit and purpose of the FOIA.  They cannot and should not be tolerated.  Sensitive review of requests based on the identity of a requester can only reflect the Administration’s efforts to limit the disclosure of records, or at least the segment of requester to whom such information is provided, rather than representing any legitimate concern.

Investigating NOAA’s “High Visibility” FOIA Process

For some time now, CoA Institute has been concerned that NOAA may be abusing the sensitive review process to avoid disclosing information it would rather keep hidden.  In one FOIA production from the agency, for example, NOAA used dubious grounds to redact an email and one of its attachments almost in their entirety, as shown below.

One of the two tracking tables attached to this email included a list of incoming requests at NOAA.  NOAA withheld the substantive information concerning those requests—such as the identities of the requesters, the tracking numbers of their requests, and their respective fee category (e.g., representative of the news media)—under attorney-client privilege.  But it is difficult to credit that such benign tracking information would be privileged, particularly when many agencies regularly release FOIA logs containing just this sort of information.

The second tracking table attached to the email reflected NOAA’s contributions to a Department of Commerce-wide effort to track requests pertaining to the Trump Administration’s transition period.  For example, in response to a request from ProPublica, NOAA was unable to locate any records of correspondence with former Trump nominee Todd Ricketts.  Unlike the NOAA-specific tacking table, however, the information about departmental requests was left unredacted in most instances.

Newly Released Records Provide Details about NOAA’s Enhanced Sensitive Review

In an attempt to understand NOAA’s sensitive review practice, on December 11, 2017, we submitted a FOIA request to NOAA seeking access to all records about the agency’s practice of identifying “high visibility” FOIA requests, as well as its tracking of requests concerning the Trump transition.  This week the agency provided an interim production of responsive records, and the records produced are helping us piece together just what the agency considers to be a high visibility request.

As noted, sensitive review refers to the practice of giving certain FOIA requests extra scrutiny, including by bringing political appointees into the review process.  At the Department of Treasury during the Obama Administration, for example, a whole committee of political appointees—along with representatives from the agency’s public affairs, legislative affairs, and general counsel offices—availed themselves of the opportunity to review responsive records and delay disclosures.  In the past, sensitive review has been used to target media requesters and frustrate the release of potentially embarrassing or politically-damaging agency records.  It even prompted an investigation by the House of Representatives Committee on Oversight and Government Reform.

NOAA’s current sensitive review policy, according to one of the recently-produced records, appears to have been formulated in May 2017.  FOIA staff are expected to “[p]rovide the Office of Public Affairs each Thursday afternoon” with “weekly reports listing incoming FOIA requests of interest.”  Weekly meetings are also anticipated to discuss these requests.  The types of requests that elicit agency “interest” include those from the media and those that seek records in the public interest.  But they also include any request “submitted by an attorney.”  Moreover, NOAA’s Office of Public Affairs has the authority to “identify requests of interest warranting OPA review of response determinations.”  Although NOAA’s policy doesn’t require political appointees to insert themselves into the FOIA process, it does appear to represent a worrisome subordination of career FOIA staff to the agency’s communications shop.  That flies in the face of good government.

In our estimation, one of the more troubling aspects of NOAA’s new policy is the agency’s decision to treat FOIA requests from “lawyers” as deserving special scrutiny.  What is the basis for such treatment?  According to one of NOAA’s weekly FOIA reports, CoA Institute—a non-profit organization that is routinely recognized as a news media requester under the FOIA—was subjected to this heightened sensitive review when we requested processing notes for several earlier requests concerning the Antiquities Act.

In the “Comments” column, NOAA FOIA staff noted some alarming details about what it considered important for the Office of Public Affairs to consider:

Regardless of the motivation behind CoA Institute’s, or anyone’s, request, it is illegitimate for an agency to treat a requester differently simply because the agency fears the requester may enforce his rights in a court of law.  FOIA litigation is unique in that there is a tremendous asymmetry in knowledge between the parties about the processing of a request.  That can make it difficult for a requester to challenge agency affidavits defending the adequacy of a search or the use of an exemption.  Courts already routinely defer to such affidavits.  It now seems NOAA wants to fight against anything that could result in the public learning more about the way a request is processed.  Subjecting requests for processing notes to sensitive review could also suggest that NOAA is strategically laying the groundwork for the future application of the attorney-client or attorney work product privileges, namely, by memorializing the agency’s expectation of future litigation—no matter how distant, unreasonable, or disconnected that “expectation” may be from reality.

NOAA’s fear of a “litigation risk” from CoA Institute even prompted the flagging of other requests from unrelated parties about similar topics.

The fear of possible litigation also underlies the agency’s reticence to produce FOIA logs—basically, a type of processing note—when those records implicate subject-matters that could receive media attention.

NOAA continues to process CoA Institute’s December 11, 2017 request, and we have yet to review all the records that have been disclosed thus far.  Many of these records are in Word or Excel format and contain detailed metrics on the performance of NOAA’s FOIA office, including efforts to eliminate the backlog of pending requests.  As we review the available data and begin to receive correspondence reflecting sensitive review deliberations, we will provide additional updates on our website.

Sensitive Review as a Form of FOIA Politicization

The enhanced sensitive review at NOAA is concerning.  But it also confirms a growing suspicion in the news media and the FOIA requester community that the Trump Administration is intentionally increasing the involvement of agency leadership and political appointees in the processing of FOIA requests.  Last December, the Washington Post reported that officials at the Environmental Protection Agency (“EPA”) and the Department of the Interior (“Interior”) had started to “keep closer tabs” on incoming requests for records that could be embarrassing or politically damaging to the Administration.  More recently, a senior career official at the Department of Housing and Urban Development (“HUD”) claimed to have been “barred from handling” requests submitted by the Democratic National Committee because she was perceived to be a “Democrat,” and therefore opposed to the Administration’s interests in limiting the disclosure of embarrassing of politically-damaging information.

As I have explained, the improper interference by political appointees in the administration of the FOIA is hardly new.  It has been ongoing for years regardless of which party controlled the White House and in a variety of federal agencies, including the Department of Treasury, the Department of Housing and Urban Development, the EPA, Interior, the State Department, the Department of Veteran Affairs, the Department of Defense, and the Department of Homeland Security (“DHS”).  (Admittedly, it does seem that DHS has made efforts to limit political appointees’ involvement in FOIA administration.)

To the extent President Trump has sought to avoid transparency and open government—to chip away at the “colossus” of FOIA, as Nate Jones has described—he is following in the unfortunate and inexcusable footsteps of his predecessors.  That action should not go uncontested.  CoA Institute remains committed to holding the White House and every federal agency accountable when they violate the spirit and letter of the FOIA.

Ryan Mulvey is Counsel at Cause of Action Institute

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