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

Politicizing FOIA review at the EPA and Interior

The Washington Post reported last week that “high-level officials” at the Environmental Protection Agency (“EPA”) and the Department of the Interior (“DOI”) have started to “keep closer tabs” on incoming Freedom of Information Act (“FOIA”) requests for records that may be embarrassing or politically damaging to the Trump Administration.  Whether by deliberately delaying responses or conducting pre-production review of responsive records, non-career officials have been accused of politicizing FOIA.

Politicizing FOIA is Not New

Although concern over the improper interference by political appointees in the administration of the FOIA is justified, the practice did not originate with President Trump.  For example, according to two DOI Inspector General reports—dated September 2015 and October 2010—political appointees at Interior have long been routinely made aware of “selected” FOIA requests, including those “currently in litigation” or concerning “high profile or sensitive matters.”  In some instances, requests (including those from news media requesters) were “considerably delayed . . . possibly due to political involvement.”  Moreover, the EPA Inspector General, in August 2015 and January 2011, reported that EPA regulations specifically permitted some political appointees—including the agency’s Chief FOIA Officer and the authorized disclosure official in the Administrator’s Office—to participate in approving requests and redacting records.

The Obama-era

The truth is that politicizing FOIA reached its zenith under the Obama Administration.  Despite a professed commitment to transparency, President Obama introduced the pernicious practice of “White House equities” and “sensitive review” procedures at various agencies, including the Department of Treasury, the Department of Housing and Urban Development, the EPA, the State Department, the Department of Veteran Affairs, the Department of Defense, and the Department of Homeland Security.  As part of “sensitive review,” non-career political appointees direct career FOIA staff to consult with them whenever a FOIA request could elicit media attention or potentially embarrass the White House.  It is more than a bit ironic that the Washington Post—which previously described the Obama Administration as “one of the most secretive” ever because of its historic “stonewalling or rejecting” of FOIA requests—would now forget, or least fail to mention, this long, bipartisan history of presidents abusing transparency laws to their advantage.

Of course, none of this means that the Trump Administration is adhering to best practices.  It stands to reason that FOIA politicization, and a lack of overall commitment to transparency, continues.  For example, “White House equities” review persists.  In July 2017, the General Services Administration released to CoA Institute a previously-secret White House memo detailing those procedures, thus suggesting they are still in place.  Although not directly related to the FOIA, the White House also appears to have interfered with how agencies respond to congressional oversight requests.  And, most recently, CoA Institute has investigated the National Oceanic and Atmospheric Administration’s practice of identifying “high visibility” FOIA requests, as well as its tracking of requests concerning the Trump “transition.”

The current Administration is not alone in politicizing FOIA.  Where political appointees are interfering with the disclosure of records, they are continuing a long tradition of obstructing the public’s right to access government information.  To turn the issue into a partisan one—of Trump versus the EPA #Resistance, of #DrainTheSwamp versus the “main stream” media—obscures the underlying problem and makes it more difficult to reach consensus on how to fix it.

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

DHS Watchdog Claims Political Appointees No Longer Politicizing FOIA

One of the earliest transparency scandals of the Obama Administration erupted in 2010 when the Associated Press discovered that officials at the Department of Homeland Security (“DHS”) had, “in a highly irregular move,” started to “filter hundreds of public records requests through political appointees, allowing them to examine what was being requested and delay releasing sensitive material.”  These appointees, along with senior officials and public affairs staff, effectively blocked or delayed the disclosure of potentially embarrassing or politically-damaging agency records under the Freedom of Information Act (“FOIA”).  Their interjection into the FOIA process—and retaliation against career staff members who objected to this “sensitive review”— resulted in a congressional inquiry and damning Oversight Committee report.  The Obama Administration politicized FOIA the same way at the Department of Housing and Urban Development, the Environmental Protection Agency, the State Department, and the Department of the Treasury.  The situation at DHS, however, has improved, according to a recently-released Inspector General report.

The July 7, 2009 memorandum establishing sensitive review procedures at DHS included extensive reporting requirements, including updates to the White House about agency disclosures.  The DHS Inspector General politely described this, in a March 2011 report, as “unprecedented.”  It “created inefficiencies that hampered full implementation” of the FOIA.  More troubling, the policy had the practical effect of targeting media organizations and critics of the Administration.  Agency officials regularly delayed requests from media outlets, for example, so that they could develop a public response to damaging records.  And other disclosure decisions were sometimes based on the political affiliation of a requester.

Now, in response to a June 2015 request from the U.S. Senate Homeland Security and Governmental Affairs Committee, the Inspector General has published a new report that revisits its earlier findings and suggests that the culture of FOIA politicization at DHS has improved.  Since 2011, DHS has “reduced the number of days that political appointees . . . have to review releases from 3 days to 1 day.”  The sensitive review process has been renamed the “1-Day Awareness Notification Process.”  And, in most cases, FOIA officers “no longer wait for approval before releasing responses to significant FOIA requests” because it is “not required.”  An audit of 57 “significant requests” showed that none were delayed because of political appointee intervention.

These findings are positive.  The more limited involvement of fewer political appointees—“an advisor to the DHS Secretary, an official in the Office of Public Affairs, and the Chief FOIA Officer”—as well as a shorter “notification” period, limits the potential for politicization while respecting agency leadership’s concern for being kept aware of disclosures that might ignite media attention.  The apparent removal of any sort of necessary “clearance” authorization from political staff, or the removal of a requirement to obtain such clearance before release, is also a helpful development.  Oddly, DHS’s revised procedures are only “informally documented” in a “2012 email” and “2015 draft guidance.”  According to the Inspector General’s report, the DHS Privacy Office aims to finalize them by the end of the year.  The sooner, the better.

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

A Former IRS Official Chimes In – and Reminds Us Why Change is Necessary

In a letter published earlier this week by the EO Tax Journal, a former branch chief of the IRS Exempt Organizations Division, inadvertently confirmed just what our recent report argued – that the IRS is focused on its own reputation, not its duty to taxpayers.  Conrad Rosenberg, who retired from the agency 20 years ago, doesn’t seem to realize that government agencies have a purpose beyond avoiding criticism:

I find a certain irony in the complaints about the IRS’ use of Sensitive Case Reports to alert upper management about potentially controversial rulings. Imagine the cries of anger and incredulity if the Service issued some ruling that received notoriety in the media.  The very same complainants would be issuing furious pronouncements along these lines: “What!  How is it possible that this terrible mistake never received attention above the level of a GS-13 reviewer?  Surely you don’t expect us to believe that!  Sheer incompetence!  Why weren’t responsible managers rung in on this decision?!”

This letter is a failure of logic and of law. Your rights do not vary based on how “potentially controversial” you are in the eyes of the media, Congress, or the IRS itself.  An organization either satisfies the law’s requirements for tax-exempt status, or it does not.  By trying to concern itself with predicting controversy instead of determining tax status, the IRS risks becomingly overly focused on organizations opposed to a current administration – as was amply demonstrated by the number of “Tea Party” and “patriot” groups treated inappropriately merely because of their names.

The letter is also a prime example of how the government solution to bad government is always more government. Low level staffers were not the ones making “terrible mistakes” in the targeting scandal – in fact, because of the Internal Revenue Manual (IRM) rule discussed in our report, they weren’t making many decisions at all.  They were forced to look upward if an application “might receive media of Congressional attention,” a fact irrelevant to the application’s merit but very relevant to the job prospects of IRS management.

The targeting scandal is not a story of insufficient oversight by senior leaders but of suffocating micromanagement from them. The kind of “cries of anger and incredulity” that Mr. Rosenberg mocks were due to years-long delays and invasive questioning that improperly prevented concerned citizens – including more than one Occupy organization – from fully joining in the democratic process.  Those delays were not caused by junior staffers twiddling their thumbs but by IRS leaders who insisted on centralizing the decision-making.

In the free time taxpayers will inevitably have waiting for the IRS to process their applications, they may find it interesting that the GS-13 employees portrayed by Mr. Rosenberg as too junior to be publicly trusted with doing their job will be paid as much as $127,000 this year.  At what point do they become trustworthy?  $150,000?  $200,000?  Refusing to let these employees make decisions does not increase the quality of the process, only the length of it.

Lastly, our report explains that the other criteria specified by the IRM for issuing Sensitive Case Reports “fall comfortably within the agency’s area of expertise: whether an application affects a large number of taxpayers, presents unique tax issues, or involves $10 million or more.” We are not against the IRS being diligent; we are against it continuing to use internal rules that have nothing to do with the laws it is empowered to enforce.  Criticism of the IRS is not such a terrible outcome that all else must be sacrificed to prevent it, particularly when taxpayers are the ones suffering the brunt of the sacrifice.

John McGlothlin is counsel at Cause of Action Institute

WSJ’s James Taranto on FOX News discusses our IRS targeting report


James Taranto: A miss to the Internal Revenue Service which claims to have ended the ideological targeting of non-profit organizations. But as the Cause of Action Institute points out, the rule that enabled this targeting is still on the books. It tells agents to investigate any non-profit that might, and I quote, “attract media or congressional attention,” which suggests the IRS is more interested in protecting its image than the rights of Americans.

You can access our full report, “Sensitive Case Reports: A Hidden Cause of the IRS Targeting Scandal” HERE


CoA Institute Sues Treasury for “Sensitive” Records Concealed from Public Disclosure

Washington D.C. – Cause of Action Institute (CoA Institute) today filed a lawsuit to compel production of records from the U.S. Department of Treasury dealing with the agency’s “sensitive review” policy. These policies often delay open records requests through the Freedom of Information Act (FOIA), particularly when such productions contain politically sensitive or potentially embarrassing information, directly contrary to congressional policy.

To better understand the Treasury Department’s sensitive review procedures, who is involved, and how it is used, CoA Institute submitted a FOIA request to the agency in June 2013 seeking records relating to its FOIA process.

CoA Institute Vice President John Vecchione: “It’s ironic that our FOIA to learn more about sensitive review has itself been held up because of sensitive review. Even after the Department of Treasury agreed through mediation last year to start producing responsive records, it has failed to produce a single document. Agencies have utilized opaque sensitive review processes to delay records requests, adding months and even years to an agency’s response time. The public has a right to information about how agencies obstruct and delay open records requests that may reveal politically embarrassing information.”

According to information obtained from various agency inspectors general, similar sensitive review policies have been used at the Department of Homeland Security, Department of Interior, Department of Commerce, Department of Agriculture, Department of Health and Human Services, Department of Housing and Urban Development, and the Department of Veterans Affairs. At some agencies, sensitive review is applied not only to information the agency’s management considers sensitive, but also to any FOIA request from a representative of the news media, like CoA Institute, or where the request is likely to attract media or political attention.

Sensitive review often is conducted by political appointees—and sometimes by the Office of the White House Counsel—rather than by career FOIA professionals. These appointees sometimes required staff to find and provide information about requesters that FOIA does not require requestors to provide, such as where the requestors live, who they work for, and whether their employer is politically active or part of the news media.

The full complaint can be accessed HERE
All exhibits can be accessed HERE