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08/8/2017

Consumer Product Safety Commission Revises FOIA Rule in Response to CoA Institute Comments

The Consumer Product Safety Commission (“CPSC”) finalized a rule today implementing new Freedom of Information Act (“FOIA”) regulations. The agency incorporated important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency in in January 2017.

CoA Institute urged the CPSC to remove outdated “organized and operated” language from its definition of a “representative of the news media.”  Such language has been used in the past to deny news media requester status to government watchdog organizations like CoA Institute.  For example, CoA Institute took the Federal Trade Commission to the D.C. Circuit just to get the agency to acknowledge that its FOIA fee regulations were outdated and that it was improperly denying CoA Institute a fee reduction.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  CoA Institute cited this case to the CPSC and the agency took heed of the current case law, removing the outdated “organized and operated” language from its regulations.

The Consumer Product Safety Commission indicated that its revisions, which incorporated model language developed by the Department of Justice, focused on the nature of a news media requester, as opposed to the content of any given request. The agency further agreed that press releases could qualify as distinct work product.  Finally the CPSC added language clarifying that the examples of news media entities used in its fee category definition were “not all-inclusive.”

CoA Institute’s successful comment is just 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 Mulvey is Counsel at Cause of Action Institute

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07/26/2017

The GSA Has No Records on its New Policy for Congressional Oversight Requests

Last month, Cause of Action Institute (“CoA Institute”) detailed how it intended to investigate rumors of the Trump Administration directing federal agencies to ignore “oversight requests” from Democratic legislators.  Reports of the “new policy” sent the transparency community into a frenzy, particularly as they came on the heels of an opinion letter from the Department of Justice’s Office of Legal Counsel that corroborated much of the scuttlebutt. As part of its investigation, CoA Institute sent a FOIA request to the General Services Administration (“GSA”) seeking access to various records concerning the agency’s policies or procedures for handling congressional oversight requests, congressional requests for information, and congressional requests from individual Members for the disclosure of agency documents.  We also requested copies of records evidencing any White House directives on pre-production consultation or review of requests from Congress or under the FOIA.

Last week, the GSA provided its final response.  The response leaves much to be desired, as the agency released only two documents.  The first is a February 20, 2015 order regarding congressional and intergovernmental inquiries; the second is a previously-secret April 15, 2009 White House memo that CoA Institute first made publicly known in June 2013.  The GSA did not find (or at least did not produce) anything pertaining to the Trump Administration’s new policy to respond only to Republican congressional leadership.

The General Services Administration’s failure to locate relevant records is curious because its acting administrator, Timothy Horne, previously testified before Congress that “the [Trump] Administration has instituted a new policy that matters of oversight need to be requested by the Committee chair.”  Admittedly, he clarified that the White House itself hadn’t distributed a finalized, written version of its policy, but it stands to reason that the GSA would still have some record of its effort to formalize whatever oral directions were issued by the White House.  Similarly, to the extent the GSA may now be processing any congressional disclosure requests under the FOIA, the agency should have records concerning those policies and procedures.  None were given to CoA Institute.

We have filed an appeal challenging the adequacy of the General Services Administration’s search efforts.  And we are still waiting for the Office of Personnel Management to respond to a similar request.  In the meantime, CoA Institute remains committed to holding the Executive Branch accountable to one of the most important principles of good government: transparency.

Ryan Mulvey is Counsel at Cause of Action Institute.

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07/6/2017

The White House Should Follow Arizona Governor Ducey’s Lead and Implement an Online Portal Where Americans Can Suggest Regulations to Eliminate

On January 9, 2017, Arizona Governor Doug Ducey announced a new program designed to reduce outdated and burdensome regulations and to promote economic growth and job creation. His goal is to eliminate 500 regulations by the end of 2017.  To achieve this goal, Governor Ducey created a website—RedTape.AZ.Gov—where Arizonans can “crowdsource” recommendations on which regulations should be eliminated and submit those recommendations directly to the governor’s office.[1]  The website provides an easy, streamlined way for citizens to assist in the regulatory reform of their state.  This approach recognizes and honors what F.A. Hayek called the knowledge problem, that is, that the information necessary to make informed and efficient decisions is decentralized and that the top-down model is doomed by its arrogance.

President Trump’s White House should follow suit if it is serious about reducing the strain old regulations put on the country. President Trump issued Executive Order 13,777 on February 24, 2017, which requires that agencies designate a Regulatory Reform Officer (RRO) to implement a regulatory-reform agenda that implements, inter alia, Executive Order 13,771, which requires agencies to remove two regulations for each new one they issue.[2]  Neither of those orders contain a way for ordinary Americans to provide transparent input into this important process.  Several agencies have decided to open public-comment periods so that stakeholders and the public can provide input, but this approach leaves the comments scattered by agency and makes it difficult to aggregate.[3]  In addition, not every agency has decided to offer a public-comment period, leaving ordinary Americans without a voice.

The White House subsequently issued Executive Order 13,781 on March 13, 2017.[4]  This order created a website that allowed the public to submit comments on ways to optimize and reorganize the federal government.  While Executive Order 13,781 is a step in the right direction, it contains two fatal flaws.  First, the comment period closed on June 12, 2017 when it should be kept open permanently.  Second, the White House said it received over 100,000 comments during the comment period, but those comments are not available to the public.[5]  Cause of Action Institute submitted a FOIA request to the Office of Management and Budget, which administered the website, seeking access to those comments.[6]  Even though that request is still pending, the White House can take immediate steps to launch an improved website.

To foster and promote transparent regulatory reform, Cause of Action Institute recommends the White House launch a new website devoted to receiving recommendations from the public.  The recommendations could then automatically be forwarded to each agency’s RRO.  To ensure a transparent comment process, the recommendations should be accessible to the public and easily searchable by agency, topic, regulation identifier number, and other filters.  The website could foster public discourse by allowing the public to upvote or downvote comments, respond to specific comments, and suggest related regulations to comment on.  Finally, the website should not have a deadline for submissions but instead permanently allow Americans to make recommendations to reform the administrative state.  By providing a central, permanent website for submitting and reviewing recommendations, the White House can achieve its regulatory reform agenda more efficiently and promote accountability while ensuring that all Americans have a voice in the process.

Travis Millsaps is counsel at Cause of Action Institute.

[1] Press Release, Gov. Doug Ducey, Governor Ducey Announces RedTape.AZ.Gov (January 9, 2017), https://azgovernor.gov/governor/news/2017/01/governor-ducey-announces-redtapeazgov.

[2] See Exec. Order No. 13,777, 82 Fed. Reg. 12285 (Mar. 1, 2017), https://www.whitehouse.gov/the-press-office/2017/02/24/presidential-executive-order-enforcing-regulatory-reform-agenda; Exec. Order No. 13,771, 82 Fed. Reg. 9339 (Feb. 3, 2017), https://www.whitehouse.gov/the-press-office/2017/01/30/presidential-executive-order-reducing-regulation-and-controlling.

[3] See Evaluation of Existing Regulations, 82 Fed. Reg. 17793 (proposed April 13, 2017), available at https://www.regulations.gov/document?D=EPA-HQ-OA-2017-0190-0042.

[4] See Exec. Order No. 13,781, 82 Fed. Reg. 13959 (Mar. 16, 2017), https://www.whitehouse.gov/the-press-office/2017/03/13/presidential-executive-order-comprehensive-plan-reorganizing-executive.

[5] See Reorganizing the Executive Branch, The White House, https://www.whitehouse.gov/reorganizing-the-executive-branch (last visited June 29, 2017).

[6] Press Release, Cause of Action Institute, White House Should Release 100K Public Comments on Reforming Government (June 19, 2017), https://causeofaction.org/white-house-release-100k-public-comments-reforming-government/.

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06/26/2017

Cause of Action Institute Joins Broad Coalition Urging Congress to Reject New FOIA Exemption

Cause of Action Institute has signed a joint letter with dozens of groups from across the ideological spectrum urging the Chairmen and Ranking Members of the Senate and House Committees on Armed Services to oppose a Department of Defense (“DOD”) measure that could undermine the Freedom of Information Act’s (“FOIA”) goal of government transparency and accountability through a new FOIA exemption.

The DOD proposal would use the FY2018 National Defense Authorization Act to exempt from disclosure “information on military tactics, techniques, and procedures, and of military rules of engagements.” This proposal represents an effort by the Pentagon – the largest executive branch agency with the largest discretionary budget – to create a FOIA exemption that, if applied broadly, could hide much of the information and documents it creates.

This proposal is both procedurally problematic and unnecessary by DOD’s own practices, and the changes were proposed without the robust consideration and input of the committees with jurisdiction over FOIA. To date, no one has identified a disclosure of information that should not have occurred and that would be protected by this new language. DOD already has authority to withhold classified as well as unclassified information under FOIA for a variety of reasons. The proposed measure would give DOD license to further stretch its ability to shield documents from the public, which could be used to conceal information about matters of compelling public interest, such as the military’s oversight of contractors. This proposal would broaden a very narrowly drawn existing Exemption 3 statute. The risk in exempting more materials from disclosure does not appear to be justified in this case.

Cause of Action Institute shares DOD’s goal of ensuring that information that needs to be withheld for national security purposes is not disclosed.  However DOD’s most recent proposal is not the way to do so.

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06/19/2017

White House Should Release 100K Public Comments on Reforming Government

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today submitted a Freedom of Information Act (“FOIA”) request to the White House Office of Management and Budget (“OMB”) seeking access to the more than 100,000 public comments OMB collected regarding “improvements to the organization and functioning of the Executive Branch.”

Between May and June, 2017, Americans were invited to submit suggestions to OMB in response to President Trump’s March 13 executive order calling for a comprehensive plan to reorganize the Executive Branch. The comments, however, have not been made publicly available.

CoA Institute President and CEO John Vecchione: “Public input can be a fundamental component of government reform, but there is little reason to sacrifice transparency. Given that President Trump’s executive order calls for the possible overhaul of the entire Executive Branch, the need for transparency and open public scrutiny of this matter is paramount.”

In addition to the regulations.gov website, which is routinely used by the federal government for gathering public comments, OMB also collected comments via an online form housed on a White House website. There appears to be a discrepancy between the reported number of comments and suggestions submitted via the reorganizing website, which states that “100,000+ suggestions and ideas” were submitted, and regulations.gov, which states that only 2,019 comments were received.

CoA Institute today requested access to all comments, suggestions, and ideas submitted to the OMB as part of this effort. The FOIA request is available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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04/28/2017

Cause of Action Institute Joins Coalition Seeking Public Release of Congressional Research Service Reports

Congress needs to stop making it so difficult to get non-confidential information. To help make this reality, Cause of Action Institute signed onto a bipartisan coalition letter asking Congress to expand public access to non-confidential documents through the Congressional Review Service (“CRS”).  Congress should direct the CRS to create a system that provides free, easy access to all members of the public.

Virtually unknown outside of the D.C. beltway, the CRS plays an instrumental role in America’s legislative process.  The service provides policy and legal analysis for members of Congress in both parties.  Some of the reports it produces are confidential, but many of them are not.  The non-confidential reports could provide much-needed insight on legislative issues.  Considering taxpayers fund the CRS to the tune of $100 million annually, the public has a right to see its work.

Currently, the CRS permits public access to some documents, but the process is not simple and people have to jump through hoops to get reports.

The Congressional Review Service has suggested that there would be complications with releasing information, such as reproducing copyrighted information, needing to engage with the public and losing speech-and–debate clause protection.  However, these arguments are unfounded because its content has been cited in numerous media reports and court decisions.

For example, over the past ten years, Congressional Review Service documents have been cited in The Washington Post 67 times and The New York Times 45 times.  Moreover, the Government Accountability Office has made clear that the work of the U.S. government is not subject to copyright protection.

Confidential information must be protected, but  the public should be able to see what its government is doing and access the same information Congress uses to make decisions.

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04/24/2017

A Low Bar for White House Transparency – But Concerns Rising

Citing “national security risks and privacy concerns,” the White House recently announced that it would no longer disclose the contents of its visitor logs to the public, contrary to a policy introduced and maintained (albeit, inconsistently) by the Obama Administration.  According to The New York Times, White House press secretary Sean Spicer went so far as to suggest that disclosure would be “unnecessary, intrusive, or even harmful.”

The Trump Administration’s proffered justification for reversing President Obama’s discretionary disclosure of the logs is overstated. While the Executive Branch has an undeniable interest in some secrecy, the goals of good government are better served when the public has knowledge of those with whom the President—the quintessential public servant—is spending his time, whether in consultation about government policy or on the golf course.  Yet the decision to keep visitor logs secret is only the latest indication of a troubling trend emerging from the Trump White House regarding a lack of support for open and transparent government.

Of greater concern than the discontinuation of the WH visitor logs is the apparent continued use by the Trump administration of the policy known as “White House equities.”

When a member of the public requests records from a federal agency under the Freedom of Information Act (FOIA), that agency will often “consult” or seek the input of another government entity that created any record at issue.  Under the Obama Administration, however, evidence suggested that agencies were sending records to the Office of White House Counsel whenever they were politically sensitive, newsworthy, or otherwise embarrassing to the administration.  The result of this policy was to delay the production of records when they should have been promptly released under FOIA requirements.  Cause of Action Institute even filed a lawsuit in an attempt to reverse President Obama’s overbroad “White House equities” policy.

Shortly after President Trump’s inauguration, we reached out to the new White House Counsel to request revisions to, or elimination of, this damaging policy.  We have yet to receive a response.

Ending “White House equities” review as currently practiced would strike a blow for accountability and the rule of law and would send a strong signal that this administration takes seriously its obligations to the public.  As others have noted, President Obama promised transparency and delivered one of the most secretive governments in American history.  The bar is already low; President Trump can and should do better.

Josh Schopf and Ryan Mulvey are counsels at Cause of Action Institute

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