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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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07/10/2018

Department of the Army Refuses to Search Its Servers for Email Records

In May 2016, Cause of Action Institute (“CoA Institute”) sued the Department of the Army after it refused to produce records under the Freedom of Information Act (“FOIA”) concerning the use of teleconference technology at the White House.  CoA Institute’s FOIA request, which was filed in June 2015, followed the release of a record in an unrelated FOIA matter by the Office of Management and Budget (“OMB”).  That email revealed how a special email account, “system.manager@conus.army.mil,” had been set-up and was operated by the military for the purposes of facilitating teleconferences.
Although the OMB record may strike some as containing seemingly benign information, it nonetheless piqued our interest.  We realized that little is known about how the Executive Office of the President (“EOP”) arranges its audio and video conferences.  Moreover, there is scant public information available about the important role played by the President’s “IT team,” the White House Communications Agency (“WHCA”), in the functioning of the White House.  We were also troubled because the OMB record showed how WHCA was responsible for facilitating a conference call for inter-agency consultation on “White House equities.”  As we have repeatedly described, “White House equities” review is a form of FOIA politicization that allows the President to interfere with and delay the production of politically sensitive records.

WHCA released approximately 200 pages of email correspondence in response to our request.  The Army, however, failed to identify any responsive records.  In the lead up to summary judgment proceedings, we continually asked the Army about its efforts to search for records in the “@conus.army.mil” account.  We had even given the Army a copy of the OMB email when we filed an administrative appeal in September 2015.  But the Army kept mum and only provided details about its “search” last month, arguing that it had located the so-called CONUS account and determined that its contents were stored on Army computer servers.  But the Army claimed that the account would contain zero “responsive records.”  Why?  Because only “EOP personnel” interfaced with the account, even though it was owned and maintained by the military and stored on Army hardware.

We filed our own cross-motion for summary judgment yesterday.  The first part of our argument focuses on the Army’s unjustifiably narrow and unfair reading of our FOIA request, which sought all records of correspondence with EOP about conference calls “hosted and/or arranged by the military.”  Not only did we give the OMB record to the government to demonstrate exactly the sort of records we wanted—which should be enough to defeat the Army’s interpretation of the scope of our FOIA request—but any natural reading of the operative words “hosted” and “arranged” would include the situation of an agency maintaining a software system and email account for the sole purpose of setting-up audio and video conferences.  Whether Army personnel were involved in the day-to-day business of confirming the details for a new conference, or merely set up some sort of automated process, is without moment.

The second part of our cross-motion concerns the redaction of non-contractor employees of the Department of Defense (“DOD”) in the WHCA correspondence.  DOD takes the position that, as a categorical matter, nearly all the names and email addresses of its employees may be kept secret.  But there are several problems with this position.  First, FOIA caselaw generally disfavors categorical claims and, in the context of personal privacy interests, the public interest can outweigh an individual’s right to keep their name and work information secret—particularly when the individual is a government employee.  Second, official DOD policy posted on the agency’s FOIA website explicitly directs the sort of information we want to be made public unless disclosure would raise “substantial security or privacy concerns.”  Finally, the FOIA’s newly-added “foreseeable harm” standard mandates that an agency demonstrate how specific pieces of information may, if disclosed, be reasonably foreseen to harm an interest protected by a statutory exemption.  That sets a high bar, particularly in the context of DOD’s categorical and generally applicable policy.  In this case, it seems unlikely that the EOP’s IT staff could be described as working in a “sensitive” position, akin to activity duty military personnel on the front line or law enforcement officials involved with criminal investigative activities.  We look forward to the Army’s reply brief.

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

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06/22/2018

Department of Labor Denies FOIA Appeal After Nearly Four Years, and Unilaterally Narrows the Scope of the Request, Despite OGIS Intervention

The Department of Labor (“DOL”) recently denied CoA Institute’s long-pending Freedom of Information Act (“FOIA”) appeal concerning records of consultations between DOL and the Office of the White House Counsel (“OWHC”) on any documents containing “White House equities.”  CoA Institute filed its request on November 26, 2013 and its appeal on September 25, 2014.  After attempting to contact a responsible DOL official on over fifteen occasions, either through email or by voice message, CoA Institute finally asked the Office of Government Information Services (“OGIS”) to intervene in October 2017.  Despite DOL’s promise to try to issue a determination this past March, its appeal decision only arrived last week—forty-five months after CoA Institute’s appeal was submitted and long past the applicable FOIA deadlines.

“White House equities” review and FOIA politicization

In March 2014, CoA Institute published a report revealing the existence of a non-public memorandum from then-White House Counsel Gregory Craig that directed department and agency general counsels to send to the White House for consultation all records involving “White House equities” when collected in response to any sort of document request.  This secret memo stood in stark contrast to President Obama’s January 2009 directive on transparency, as well as Attorney General Holder’s March 2009 FOIA memo.  Although originally praised as setting the bar for open government, the Washington Post eventually described the Obama Administration as one of the most secretive governments in American history.

As part of the system of politicized FOIA review established under the “White House equities” policy, whenever a requester sought access to records deemed politically sensitive, potentially embarrassing, or otherwise newsworthy, the agency processing the request would forward copies of those records to a White House attorney for pre-production review.  Not only did the entire process represent an abdication of agency responsibility for the administration of the FOIA, but it severely delayed agency compliance with the FOIA’s deadlines.  As we have previously suggested, “White House equities” review likely continues under the Trump Administration.

DOL’s deficient processing of CoA Institute’s FOIA request

In this case, CoA Institute’s request sought all records reflecting “White House equities” consultations.  DOL released fifty-seven (57) pages of records with various pieces of information withheld under Exemptions 5 and 6, mostly personally identifying information—such as the names of lower-level DOL employees—or substantive portions of the agency’s conversations with White House attorneys.  Interestingly, DOL never indicated which privileges it sought to apply with Exemption 5.  (CoA Institute argued against the application of the attorney-client, attorney work product, and deliberative process privileges in its appeal.)

Most egregiously, DOL unilaterally limited the scope of its search to include only records reflecting White House review of FOIA requests, rather than the wide range of record requests covered by the Craig Memo:

DOL based its narrowing on stray language in CoA Institute’s request for a public interest fee waiver.  But there is no authority to support an agency limiting the subject-matter scope of a FOIA request based on a fee waiver argument.  A fee waiver request should only impact a requester’s obligations to pay any applicable fees.

DOL’s incorrect appeal decision . . . overdue by over three-and-an-half years

DOL’s appeal determination is troubling.  The agency again chose to ignore the plain language of the Craig Memo, which was cited by CoA Institute and establishes the clear scope of “White House equities” review.  Once more, DOL relied on CoA Institute’s fee waiver request.  But that language simply cannot justify limiting a search to White House consultations on “FOIA requests.”  As some type of consolation, DOL suggested that CoA Institute submit a new request.

After admitting that it had applied the deliberative process privilege, DOL summarily upheld its use of Exemption 5, describing the White House’s pre-production clearance of agency records to be part of DOL’s deliberative processes.  DOL also refused to release the names of the lower-level employees who were involved in “White House equities” consultations, arguing that there was no public interest in the disclosure of their identities.

Concluding thoughts on OGIS and its lack of enforcement power

Congress created OGIS to help mediate disputes between requesters and agencies.  OGIS is meant to provide an alternative to litigation.  Yet OGIS lacks any sort of enforcement authority, and it can only intervene if an agency and the requester voluntarily submit to the mediation process.  Thus, even if OGIS “resolves” a dispute, it has no power to hold the parties to their agreement.  Agencies suffer no consequences for disregarding the outcome of OGIS mediation.  This is a tremendous flaw in how OGIS is designed.

As this email chain demonstrates, CoA Institute asked OGIS to intervene in October 2017; OGIS closed its case in February 2018, following DOL’s commitment to trying to finish its adjudication of CoA Institute’s appeal by March 26, 2018.  That date came and went.

This is not the first time OGIS mediation has proven ineffectual and an agency has refused to honor the promises it made as part of the dispute resolution process.  CoA Institute is currently litigating another FOIA suit against the Department of Treasury over records reflecting the “sensitive review” process, which subjects certain FOIA requesters—such as representatives of the news media—to extra scrutiny.  Treasury and CoA Institute agreed to a series of scheduled interim productions; Treasury missed every one of those deadlines, and it only began to release records once CoA Institute filed a lawsuit.  This is an unacceptable practice, and Congress should look to reform the OGIS process.

Ryan Mulvey is Counsel at Cause of Action Institute

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06/21/2018

Federal District Court Excuses IRS’s Refusal to Search for Email Records Concerning White House Interference with the FOIA

Last week, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia issued an order denying Cause of Action Institute’s (“CoA Institute”) cross-motion for summary judgment in a Freedom of Information Act (“FOIA”) brought against the Internal Revenue Service (“IRS”).  The opinion was long awaited—summary judgment briefing ended over a year-and-an-half ago.  Although we do not intend to appeal the decision, it is worth highlighting some issues with Judge Sullivan’s opinion and the IRS’s arguments.  The case is a fine example of how courts too frequently defer to agencies when it comes to policing their compliance with the FOIA.

Background: “White House equities” review and FOIA politicization

In March 2014, CoA Institute published a report revealing the existence of a non-public memorandum from then-White House Counsel Gregory Craig that directed department and agency general counsels to send to the White House for consultation all records involving “White House equities” when collected in response to any sort of document request.  This secret memo stands in stark contrast to President Obama’s January 2009 directive on transparency, as well as Attorney General Holder’s March 2009 FOIA memo.  Although originally praised as setting the bar for open government, the Washington Post eventually described the Obama Administration as one of the most secretive governments in American history.

As part of the system of politicized FOIA review established under the “White House equities” policy, whenever a requester sought access to records deemed politically sensitive, potentially embarrassing, or otherwise newsworthy, the agency processing the request would forward copies of those records to a White House attorney for pre-production review.  Not only did the entire process represent an abdication of agency responsibility for the administration of the FOIA, but it severely delayed agency compliance with the FOIA’s deadlines.  As we have previously suggested, “White House equities” review likely continues under the Trump Administration.

The specific FOIA request at issue in this case, which was submitted to the IRS in May 2013, sought records of communications between IRS officials and the White House reflecting “White House equities” consultations.  Similar requests were sent to eleven other agencies.  All those agencies produced the requested records; only the IRS failed to locate a single relevant document.  And the IRS only communicated its failure to find any responsive records two years after CoA Institute submitted its request and filed a lawsuit.

Why the IRS failed to conduct an adequate search for records

Our argument for the inadequacy of the IRS’s search for records reflecting “White House equities” consultations focused on several points, but two were especially important.  First, the IRS failed to search its own FOIA office—the most likely custodian of the records and issue.  Second, the IRS improperly refused to search for any responsive email correspondence within the Office of Disclosure.

The IRS inexplicably limited its search efforts to the Office of Legislative Affairs, a sub-component of the Office of Chief Counsel, and the Executive Secretariat Correspondence Office, which handles communications with the IRS Commissioner.  The agency offered no evidence that it sent search memoranda to its FOIA office, which is part of the “Privacy, Governmental Liaison, and Disclosure” or “PGLD.”  In fact, the IRS effectively admitted that it had foregone a search of the Office of Disclosure because a single senior employee testified that he did not believe any responsive records existed.  And because “White House equities” review was not mentioned in the Internal Revenue Manual, the FOIA officer assigned to CoA Institute’s request determined that consultations with the White House would never have taken place.

The IRS also refused to search individual email accounts within the Office of Disclosure because it would be too “burdensome.” Remarkably, the IRS claimed it would “take one IRS IT person at least 13 years” to capture the correspondence of all 165 employees within the Office of Disclosure.  Yet the IRS offered no explanation for why other reasonable options to search email did not exist, such as requiring individual employees to “self-search” email, conducting a preliminary sample search of individuals within the Office of Disclosure most likely to have responsive records, or making use of e-discovery tools like “Clearwell” and “Encase.”

The Court’s Flawed Opinion and Hyper-Deference to the IRS

One major flaw in the Court’s decision concerns its uncritical acceptance of a single IRS attorney’s belief about the existence of responsive records within the Office of Disclosure.  Although the IRS admittedly conducted a keyword search of its tracking system for incoming FOIA requests, it refused to send out search memoranda or engage in other typical search efforts.  The IRS instead relied on the declaration of John Davis, Deputy Associate Director of Disclosure, who claimed that he had never heard of “White House equities” and was unaware of White House consultations ever taking place.  On this basis alone, the IRS concluded it was “unreasonable” to conduct a more vigorous search.  The Court accepted this reliance without any real explanation when it should have given more consideration to the text of the Craig Memo, which was addressed to the entire Executive Branch—including the IRS—and the fact that the eleven co-defendants in the same case all produced responsive records—nearly all of which were email chains.

As for the search of individual email accounts, the Court yet again uncritically deferred to the IRS’s bizarre claim that it would take thirteen years to process CoA Institute’s FOIA request.

In deferring to the IRS, the Court failed to address the IRS’s practice of conducting email searches by manually inspecting the content of individual hard drives, a central reason why an email search would take so preposterously long.  This practice, which requires the IRS to warehouse a lot of old computer equipment, has been repeatedly criticized by the Treasury Inspector General for Tax Administration because it could lead to violations of records management laws.

Additionally, some doubt exists, based on information independently received by CoA Institute from IRS employees, as to the accuracy of the IRS’s claims regarding its ability to conduct an agency- or component-wide search of its email system.  Because FOIA cases rarely make it to trial, it is nearly impossible to pin the IRS down on the accuracy of its claims.  Regardless, the IRS has certainly made a habit of regularly evading its disclosure obligations, a habit buttressed in this instance by an overly deferential judiciary.

Ryan Mulvey is Counsel at Cause of Action Institute

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06/8/2017

Is President Trump Directing Agencies To Ignore Democrats’ Oversight Requests?

The transparency community was abuzz last week when Politico reported that the White House was directing federal agencies to ignore oversight requests from Democratic legislators. According to unnamed “Republican sources,” a White House lawyer “told agencies not to cooperate” with record requests from the minority. Politico described this as “amount[ing] to a new level of partisanship in Washington[.]”  But is that the case?

There is a dearth of publicly available evidence as to the Trump Administration’s actual policy. The White House has been cagey in providing clarification. Politico reported that a White House spokesman insisted that agencies should “accommodate the requests of chairmen, regardless of their political party.”  But Republicans control both the House and the Senate and all congressional committee chairmanships, so the official policy, if any, remains unclear.

Some Democrats have claimed that officials at the Office of Personnel Management and the General Services Administration refused to disclose information without a committee chairman co-signing an official request. Cause of Action Institute filed Freedom of Information Act (“FOIA”) requests with those agencies today (here and here) in an effort to verify what Democrats might have been told because—again—the relevant records are not publicly available and agency officials deny the Democrats’ allegations. Similar stories of agencies remaining silent when approached by Democrats have circulated over the past few months.

The Project on Government Oversight offered a measured response to Politico’s report, suggesting that the Administration’s course appears consistent with Reagan-era Department of Justice (“DOJ”) guidance that effectively directs agencies to process requests from individual Members under the FOIA. That difference in treatment, as compared to requests from committees or those with official oversight responsibility, is particularly relevant to an agency’s inability to withhold information under 5 U.S.C. § 552(d).

A recent opinion letter from DOJ’s Office of Legal Counsel (“OLC”), however, does appear to complicate matters. The letter suggests that the Trump Administration may be charting a course into newer and less transparent waters:

“The constitutional authority to conduct oversight—that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities—may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen). Individual members . . . do not have the authority to conduct oversight in the absence of a specific delegation . . . . Accordingly, the Executive Branch’s longstanding policy has been to . . . accomodat[e] congressional requests for information only when those requests come from a committee, subcommittee, or chairman authorized to conduct oversight.”

Unfortunately, the OLC opinion misframes the issue and, in doing so, provides a distorted view of the law. True: an individual Member’s request for information—regardless of political affiliation—“is not legally enforceable through a subpoena or contempt proceedings,” and, in that sense, the Member lacks “constitutional authority” to conduct formal oversight.  But nothing prohibits a legislator from requesting information for his own purposes, on behalf of a constituent, or to try to hold the Executive Branch accountable in a more colloquial sense of “oversight.”  As former White House attorneys Andy Wright and Justine Florence argue, Republicans often sought disclosure of records from the Obama Administration when they were not in control of Congress. In such instances, federal agencies should not, in theory, have ignored the requests, but instead followed DOJ guidance and processed them under the FOIA, just like a record request from any member of the general public.

The track record of the Obama Administration, in this respect, is hardly flattering. Indeed, Wright and Florence’s claim that the Trump “[A]dministration believes members of Congress asking for information about federal agencies are entitled to even less than members of the public,” is loaded with irony.  As attorneys in the Office of the White House Counsel, Wright and Florence personally helped President Obama lead one of the least transparent governments in American history. Cause of Action Institute was the first to expose the Obama Administration’s practice of “White House equities” review, which lead to the severe delay and occasional ignoring of both FOIA requests and congressional record requests, including those that had been issued under subpoena. Individual Members and committee chairmen alike were subject to this politicized review process.  If the Executive Branch has formally adopted a policy to obstruct Democrats, it would be a continuation of President Obama’s legacy of opacity and secrecy.

To summarize, the relevant legislative history and DOJ guidance states that a Member of Congress enjoys a statutory right of public access under the FOIA (and, similarly, the Privacy Act) to records of the administrative state. Minority oversight requests should be considered FOIA requests as a matter of course.  An individual Member would thus have the same right as anyone to “enforce” his request under the FOIA’s judicial review provision, 5 U.S.C. 552(a)(4)(B).  It is improper for OLC to suggest that agencies should only provide “discretionary responses,” say, “to correct misperceptions or inaccurate factual statements.”  An agency may exercise discretion to prioritize a Member’s request or to release exempt material from responsive records.  But an agency lacks the discretion to ignore a Member of Congress simply because of his or her political affiliation or position in leadership.

Ryan Mulvey is Counsel at Cause of Action Institute.

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05/8/2017

The next front in the FOIA War: Congress blocking disclosure of its dealings with the Executive Branch

By Ryan Mulvey, Opinion Contributor

Presidential interference with public access to politically sensitive agency records has been an ongoing fight that seems unlikely to end anytime soon, and now it appears Congress has decided to get into the game.  My organization, Cause of Action Institute (“CoA Institute”), has long been at the forefront of fighting against unlawful obstruction of the Freedom of Information Act (“FOIA”).  Last year, we filed a lawsuit against the Office of the White House Counsel to end the practice of “White House equities” review, which results in the delay of responses to FOIA requests that the administration deems politically embarrassing.  With that lawsuit still ongoing, Congress has taken a page from the White House’s playbook to keep records of its dealings with agencies hidden from public view, too.

BuzzFeed reported last week that Financial Services Committee Chairman Jeb Hensarling (R-Texas) sent a letter to the Treasury Department that directed the agency to treat all records exchanged with the committee as “congressional records” not subject to the FOIA.  Read More

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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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