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11/1/2016

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

 

 

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10/27/2016

CoA Institute Requests White House Communications with John Podesta, Interest Groups on Controversial National Monument Designations

Washington, DC – Cause of Action Institute (CoA Institute) today sent a Freedom of Information Act (FOIA) request seeking records of correspondence among the White House, Hillary Clinton campaign chairman John Podesta, and outside interest groups discussing current and proposed national monument designations.

Unconfirmed emails obtained by CoA Institute appear to show John Podesta and White House Council on Environmental Quality (CEQ) Managing Director Christy Goldfuss discussing controversial designations of new national monuments and expansion of existing monuments under the Antiquities Act.

The broad use of the Antiquities Act under the Obama administration has raised concerns about the opaque process and lack of consultation with local stakeholders leading up to the president’s designation of new national monuments. If verified, these emails raise additional transparency concerns and the specter of collusion.

Ms. Goldfuss, a White House political appointee, appears to have used her private email account to coordinate with outside interest groups and individuals, including John Podesta, regarding the selection or designation of national monuments. For instance, in one unconfirmed email exchange, Ms. Goldfuss sent a work-related email to Mr. Podesta using her Gmail account in which she stated:

Hi John, . . . It’s all coming together.  I may have an oceans monument question for you soon.  We’re looking at the NE, and it’s messy.  Hope all is well!  We sure do feel your absence now that Kristina is gone.  I always felt like she channeled you so well. Talk soon, Christy.

By using her personal email account to conduct government business, Goldfuss may have violated the Federal Records Act, if she failed to forward those emails to her official government email account so that they can be appropriately archived and searched.

In another unconfirmed email exchange, Mr. Michael Conathan, the Director of Ocean Policy at Center for American Progress, emailed John Podesta with the Subject: “Re: A couple of quick ocean things”:

Hey John, Welcome back to the world outside the White House gates… Jane and I had a good meeting with Christy and the CEQ team, and got over to meet Brian earlier this week, so we’re full steam ahead with the monuments process. Thanks for all your help on that front. …

While the veracity of this email cannot be independently verified, White House visitor logs indicate that Mr. Conathan was at the White House on Feb. 23, 2015 to meet with Hilary Atkin, who, per publically available information, worked for CEQ at the time of the meeting.

To ensure compliance with the law, CoA Institute today requested all communications, including personal emails, relating to the Obama administration’s use of the Antiquities Act to unilaterally proclaim new national monuments.

CoA Institute Assistant Vice President Henry Kerner: “Designating a new area as a national monument should be an open process where the public and local stakeholders have an opportunity to be heard. The public also has a right to know whether decisions to limit public use of federal lands are properly made.  If verified, these personal emails show possible collusion among the Hillary Clinton campaign, the White House, and activist organizations to further the goals of interest groups at the expense of the American people.”

The FOIA is available HERE

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10/12/2016

Report Reveals How White House Evaded Checks, Likely Accessed Confidential Taxpayer Information

Washington, D.C. – Cause of Action Institute (CoA Institute) today released a comprehensive investigative report, Presidential Access to Taxpayer Information. The report covers in detail recent IRS misuse and unauthorized release of confidential taxpayer information and the possible role of a detailee program in the Office of the White House Counsel that may have provided access to the protected information.

The report states:

Following the misuse and unauthorized release of confidential taxpayer information during President Obama’s first term, including the largest breach of taxpayer confidentiality laws by the federal government in United States history, Cause of Action Institute investigated the legal and institutional checks designed to protect against such improper disclosure and the means by which the Obama administration may have evaded those checks.

That investigation revealed that President Obama has circumvented the congressionally created and authorized procedures for accessing confidential taxpayer information—procedures that were designed to be exclusive—by relying on individual consent forms that were never intended for use by the president. The practice has allowed the president to avoid the reporting requirements and limitations placed on presidential access to taxpayer information by the Tax Reform Act of 1976. In particular, the use of individual consents enables the administration to skirt statutory recordkeeping and reporting requirements to Congress, the limitations on the kind of information available for disclosure, and the extent to which such information can be shared within government agencies and offices.

The report reveals that throughout the Obama administration the Office of the White House Counsel employed at least one attorney detailed from the Department of Justice (DOJ) Tax Division.  At least two of those attorney-detailees had intimate knowledge of confidential taxpayer information gained while serving as counsel to the IRS in litigation with nonprofit groups opposed to President Obama’s policies. This information is otherwise restricted from disclosure to the President and other White House officials.

The report shows that neither the DOJ Tax Division nor the Office of the White House Counsel has implemented context-specific training, guidelines, or ethical screens to prevent the inadvertent or deliberate disclosure of confidential taxpayer information by attorney-detailees.

Inherent conflicts of interest in the detailing program make it imperative that Tax Division attorneys who work on detail to the Office of the White House Counsel, especially those who have served as counsel to the IRS in matters involving the political opponents of the president, receive enhanced training and supervision to ensure the safeguarding of confidential taxpayer information. There does not appear to be any such program, specialized training, or targeted guidelines in place.

The report makes several recommendations, including that Congress should amend the Internal Revenue Code to ensure that the exclusive mechanisms created by the Tax Reform Act of 1976 for presidential access to confidential taxpayer information are enforced.

The full report and executive summary can be found here.

 

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06/2/2016

Cause of Action Institute Petitions OMB to Update FOIA Fee Guide

Today, Cause of Action Institute filed a petition for rulemaking with the White House Office of Management and Budget (“OMB”), urging it to update its obsolete guidance document that federal agencies rely on when making FOIA fee determinations.  The petition seeks to implement Cause of Action Institute’s landmark legal win in Cause of Action v. Federal Trade Commission where the D.C. Circuit ruled OMB’s guidance conflicts with the FOIA statute.

Background

In 1986, Congress passed, and President Reagan signed into law, the Freedom of Information Reform Act of 1986.  Section 1803 of the Act directed OMB to provide a uniform schedule of fees for all federal agencies and guidelines for how to apply that schedule.  On March 28, 1987, OMB finalized those guidelines.  Although Congress has amended the FOIA several times since 1986, OMB has never updated the guidance.

The failure by OMB to update its guidelines has resulted in costly, time-consuming litigation between agencies and requestors.  For example, in 2011 and 2012, CoA Institute sent a series of FOIA requests to the Federal Trade Commission (“FTC”) requesting access to records, to be classified as a representative of the news media, and for a public interest fee waiver.  The FTC refused the CoA Institute requests for fee classification and waiver by relying on its outdated FOIA fee regulations, which in turn relied on the outdated OMB guidance.  After the district court refused to apply the statutory standard, CoA Institute appealed the case to the D.C. Circuit, which ruled that many of the regulatory and judicial standards that had built up over time were in conflict with the statute as amended by the Open Government Act of 2007.

Petition

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06/24/2013

White House and Treasury Department Politicize FOIA

In 2010, the Associated Press (AP) uncovered that the Department of Homeland Security (DHS) was blatantly politicizing the Freedom of Information Act (FOIA) process by having senior political appointees review requests.  Additionally, it was revealed that documents implicating “White House equities” had been sent by DHS to the White House Counsel’s Office for review, but what are White House equities? And who is defining the term?

In subsequent testimony before the House Committee on Oversight and Government Reform, Mary Ellen Callahan, Chief Privacy Officer for DHS, was asked about the meaning of White House equities by Rep. Jason Chaffetz:

Mr. Chaffetz. Let me read another paragraph. “Two exceptions required White House review, request to see  documents about spending under the $862 billion stimulus law, and the calendars for cabinet members, those required White House review,” is that correct?

Ms. Callahan. The calendars–anything that has White House equities would require White House review. That is—-

Mr. Chaffetz. What is a White House equity? What does that mean?

Ms. Callahan. In the circumstances with the Secretary’s calendar to the extent that she was in the White House, or that was a–disclosing some sort of element. This is a typical process of referring FOIA requests to different departments. It may be their underlying records. That is a standard process throughout the—-

Mr. Chaffetz. The other part of that is under the $862 billion stimulus; is that correct? Is that part of the White House equity? It says “Two exceptions required White House review. Request to see documents about spending under the $862 billion stimulus law,” is that correct?

Ms. Callahan. That is correct.

Mr. Chaffetz. Why? Why does that require a special White House review?

Ms. Callahan. Sir, I’m the chief FOIA officer; I’m not a policy person in this area.

Mr. Chaffetz. So is that a directive that you got from the White House?

Ms. Callahan. I believe I was instructed by the Office of the Secretary to do that, and we processed it—-

Three years after the above testimony, we have confirmed that Congressman Chaffetz was right about the source of authority that required “special White House review.” In January 2009, the President issued his Executive Order on FOIA and transparency, and then Attorney General Eric Holder issued a March 2009 FOIA memo encouraging disclosure. Both of these memos were made public and lauded as standards for federal agencies. But in April 2009, a previously undisclosed memo was sent from White House Counsel’s Office to Department and Agency General Counsels, reminding them to send to the White House all records involving “White House equities” collected in response to any document request.  According to FOIA attorneys at multiple federal agencies, this White House consultation policy is still in effect.

The practice of sending agency records to the White House for review is not altogether new. In 1993, for example, the Department of Justice (DOJ) instructed agencies to send “White-House-originated” records to the White House Counsel’s Office whenever located in response to FOIA requests. However, the current White House consultation policy is substantially broader in scope.   First, this memo expands the types of documents being sent to the White House to include Congressional committee requests, GAO requests, and judicial subpoenas. Additionally, the documents to be referred need not “originate” from the White House, as the DOJ advised in 1993, but need only involve “White House equities,” an undefined term that could be construed to include any records in which the White House might be interested.   Indeed, that is exactly the type of referral that appeared to have occurred at DHS, and which is likely still occurring throughout the Executive Branch. In sum, the White House Counsel’s office is potentially receiving and reviewing, and actually demanding access to information they previously would not have been able to review under FOIA. Cause of Action is now seeking to obtain documentary evidence of this practice via FOIA requests to multiple agencies.

 

The 2009 memo that Cause of Action obtained:

White House Equities

How the Treasury Department and the IRS Stall FOIA Requests

  • Treasury’s Departmental Offices (DO) and the IRS gives extra scrutiny to FOIA requests from all media requesters, delaying the release of records and usurping the regulatory authority of FOIA officials
  • 13 requests to DO were marked for sensitive review were sent to the White House for review in 2009

In the wake of the DHS FOIA scandal, Senator Grassley and Congressman Issa sent a joint August 25, 2010 letter to 29 Inspectors General, asking them to investigate: (a) whether FOIA requests were given more scrutiny based upon the identity of the requester, and (b) the extent to which political appointees were systematically made aware of the requests and participate in FOIA decision-making. Our research found that only 7 of the 29 Inspectors General released their findings publicly, and none of those reports revealed any wrongdoing.

However, according to the Treasury Inspector General, both the Treasury’s main office, called Treasury’s Departmental Offices, as well as the IRS established formalized “sensitive review” processes in late 2009 that singled out media requesters and slowed down the FOIA process. At Treasury DO, a committee of senior Treasury officials reviewed requests deemed to be “sensitive” before career FOIA personnel were permitted to release any records. Notably, multiple government sources have confirmed that all FOIA requests submitted by the media were required to be forwarded to the review committee regardless of the content of the requested records. This discriminatory policy, which delayed the release of records and usurped the regulatory authority of FOIA officials, is all the more nefarious because it was established at a time when Americans were seeking to obtain vital information about Treasury’s response to a severe financial crisis.

At the IRS, any FOIA request submitted by “major media” would be labeled as a “sensitive case,” and sent to the Chief Disclosure Officer and the Director of Communications, Liaison, and Disclosure, who would decide if documents were “appropriately disclosed.”

Interestingly, in response to a FOIA request that Cause of action sent to the IRS, the IRS admitted internally that it had forgotten to put us in a “Sensitive Case Report.”

IRS Sensitive Review

According to the IG report, none of the other offices within Treasury had established a “sensitive review” process or were cited as sending requests to the White House for review.

Broken Promises on Transparency Continue

The Obama Administration cannot credibly claim to be the most transparent in history when it publicly issues memos about the presumption of openness in the FOIA process, for example, but then instructs agencies in a non-public memo to refer all records with “White House equities” to the White House for review. The White House is by its nature political and it is not subject to FOIA. Thus, it should not be interfering with the FOIA process. Not only is the FOIA process significantly stalled by this White House review  — a fact that agencies zealously keep secret from requesters — but it permits the White House’s political interests to trump the correct application of the FOIA, a disclosure statute whose purpose is ensure an informed citizenry. In sum, this Administration is more concerned with appearing to be transparent than with actually being transparent.

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06/20/2013

Cause of Action Sues IRS for Records of Communications between the White House and IRS

FOR IMMEDIATE RELEASE                                                                                   CONTACT:      

June 20, 2013                                                                                     Jamie Morris, 202-499-2425

 

Cause of Action Sues IRS for Records of Communications between

the White House and IRS

IRS refuses to reveal whether the White House has improperly received individuals’ tax return information

WASHINGTON – Cause of Action (CoA), a government accountability organization, yesterday filed a lawsuit against the Internal Revenue Service (IRS) for its wrongful withholding and redaction of documents involving records of communications between the White House and the IRS. These documents would reveal whether the President requested tax records of individuals and businesses outside the legally permitted process under the tax code.

“While this Administration claims to be the most transparent in American history, it is ultimately unwilling to disclose to the American people whether the President improperly accessed confidential tax information of individuals and companies,” stated Dan Epstein, Cause of Action’s executive director.  “We aren’t asking for the tax records themselves—only the requests. What is the Administration trying to hide?”

CoA filed a Freedom of Information Act (FOIA) request in October 2012 for records of communication between the White House and the IRS concerning taxpayer information, particularly communications that were not made pursuant to 6103(g) of the tax code, which authorizes the President to request any individual’s tax return information from the IRS. On March 4, 2013, the IRS issued its final response—and with it, only partial records, thereby obstructing the path to transparency which American taxpayers were promised. CoA filed suit against the IRS, declaring that the IRS has wrongfully withheld the requested records, directing the IRS to revise its search and provide full records of communications from the White House to the IRS involving requests for tax returns.

The complaint, along with our exhibits, can be found here.

About Cause of Action:

Cause of Action is a nonprofit, nonpartisan organization that uses investigative, legal, and communications tools to educate the public on how government accountability and transparency protects taxpayer interests and economic opportunity. For more information, visit www.causeofaction.org.

 

To schedule an interview with Cause of Action’s Executive Director Dan Epstein,

contact Jamie Morris, jamie.morris@causeofaction.org.

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01/11/2013

White House Opens New Year with Open Data Mandate

In our blog outlining New Year’s resolutions for the federal government, we noted how a report from the Cato Institute gave the administration poor grades on data publication practices. The report found that, “the administration and the Congress both receive fairly low marks under systematic examination of their data publication practices.”

We are happy to learn that the administration is working towards improving its data public practices. According to Federal News Radio, the Office of Management and Budget will soon mandate that agencies release machine-readable data.

The change is part of the president’s Digital Management Strategy described in a May 23, 2012 report from the White House.  An objective in the report states that, “We must enable the public, entrepreneurs, and our own government programs to better leverage the rich wealth of federal data to pour into applications and services by ensuring that data is open and machine-readable by default.”

Jim Harper, the author of the Cato report on government publication practices, called the change “good, not yet great.”  He added that, “great would be the White House itself publishing machine-readable, open data when it issues the president’s budget in February. Along with the plan for fiscal year 2014 spending, why couldn’t we get the code that distinctly identifies each agency, bureau, program, and project—in essence, the organization of the U.S. federal government?”

There is still a lot of work this administration needs to take regarding open government and transparency, but we applaud this change. We hope OMB officially issues this mandate sooner rather than later.

 

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