News Roundup: Setbacks for Freedom of Information

(Photo: Paul A. Fagan)

It’s that time of year for Supreme Court decisions, and this week began with a ruling against a South Dakota newspaper seeking information from the Department of Agriculture. 

In its decision, the Court found that the government has broad power to withhold “confidential” business information under Exemption 4 of the Freedom of Information Act, which covers trade secrets and commercial or financial information. Lower courts had previously considered such information “confidential” if its release would result in “substantial competitive harm.” But that legal test was dropped in Monday’s decision.

In this case, the Sioux Falls Argus Leader had sought data on grocery stores involved in the Supplemental Nutrition Assistance Program (SNAP, or food stamps). “This is a massive blow to the public’s right to know how its tax dollars are being spent, and who is benefiting,” said Cory Myers, the Argus Leader’s news director.

Senator Chuck Grassley went to the Senate floor on Thursday to voice his disagreement with the justices’ decision. “I am an advocate for the Freedom of Information Act and the public’s business being public,” Grassley said. “And this Supreme Court decision inhibited that. In a self-governed society, the people ought to know what their government is up to.”

Grassley also pointed to new FOIA regulations at the Department of the Interior and the Environmental Protection Agency that are “undermining access to public information.” This week, the EPA had published rules that would explicitly give political appointees power to oversee final responses to FOIA requests. Last week, it was reported that the Interior Department had been using a similar policy, and American Oversight called on the agency’s inspector general to investigate whether Trump administration officials had been interfering with requests. Interior also faced criticism from transparency advocates — including American Oversight — in December and January for another proposed rule that would allow the agency to limit its responses or refuse to honor certain FOIA requests.

Here’s what else has been going on this week:

Another Big SCOTUS Ruling: Not too long after the Supreme Court issued a ruling that federal courts did not have the power to stop partisan gerrymandering, the Court effectively blocked the Trump administration’s addition of a citizenship question on the 2020 census. Calling out the administration’s “contrived” reasons for seeking the question’s inclusion, Chief Justice John Roberts said that officials must “offer genuine justifications for important decisions.” Whether the administration will have enough time to offer those justifications is uncertain, and we’re still investigating the Justice Department’s involvement in the administration’s decision.

Unpaid Bills: Brock Long, the former administrator of the Federal Emergency Management Agency, was found to have used more than $150,000 in government resources, including vehicles, for personal use. It was initially reported that Long would reimburse the government, but according to documents we uncovered, he has only paid back a small fraction — $2,716, or less than 2 percent — of the total amount he cost taxpayers. As reported by Politico, former Secretary of Homeland Security Kirstjen Nielsen did not require Long to reimburse the government fully.

Chao’s Vulcan Stock: Despite her repeated pledge to divest from Vulcan Materials Company, one of the nation’s largest producers of construction materials, Transportation Secretary Elaine Chao continued to retain company stock for more than a year after she said she would cash out. During that extra year, Vulcan’s shares rose 13 percent and Chao netted a gain of more than $40,000. According to American Public Media Reports, Vulcan’s share price has spiked whenever Chao or Trump speak publicly about infrastructure, and records indicate that the company has continued to lobby the Transportation Department since Chao took office. We filed FOIA requests to learn more about Chao’s efforts to comply with her ethics obligations and the extent of Transportation officials’ communications with Vulcan.

Another Defense Industry Insider: Last week, Trump nominated Army Secretary Mark Esper — a former lobbyist for weapons manufacturer Raytheon — to serve as his next secretary of defense. Lobbying disclosure reports indicate that Esper, who worked for Raytheon for seven years, was lobbying a dozen agencies, including the Defense Department, throughout much of 2017 — even as he prepared to join the administration later that year. We filed a number of FOIA requests for Esper’s calendars and ethics determinations, as well as for any communications agencies had with him in 2017, when he was lobbying for Raytheon.

Rolling Back International Women’s Rights: At the annual meeting of the United Nations Commission on the Status of Women in March, the U.S. delegation pushed a conservative and anti-abortion agenda, including refusing to reaffirm the 1995 Beijing Declaration, a landmark agreement for women’s rights. American Oversight is asking the Justice Department’s Office on Violence Against Women for communications with outside anti-abortion rights groups about the delegation’s policy priorities.

Migrant Tent Cities: The conditions of migrant facilities drew public outcry this week after lawyers reported that children in a Border Patrol facility were severely ill and neglected. In April, a congressional delegation visited one of the newly opened tent cities for migrants, and reported unhealthy conditions and overcrowding, and that they were not allowed to take photos. We filed a FOIA request this week for records — including photographs and audio recordings — to shed light on the conditions in these tent cities, and we just filed a lawsuit against DHS for records related to the deaths of individuals in custody.

False Statements About Immigration: Trump and members of his administration have repeatedly made blatantly false or unsubstantiated claims about immigration at the U.S.-Mexico border. From Trump’s use of exaggerated and unconfirmed numbers — which DHS confirmed that it couldn’t corroborate — to former Secretary Nielsen’s misleading statements about terrorism at the southern border, we’ve been investigating the administration’s rhetoric and false claims. This week, we filed a FOIA request for former CBP Commissioner and current Acting DHS Secretary Kevin McAleenan’s communications about Nielsen’s misleading statements.

Trump’s Obstruction: Last week, we launched an investigation into the Trump administration’s unprecedented obstruction of legislative branch oversight and defiance of congressional requests and subpoenas, and the extent to which executive branch agencies are acting at the direction of the White House. FOIA requests that went out this week seek agency communications about congressional oversight with specific members of the White House staff, including Don McGahn and Pat Cipollone.

Emoluments: A federal judge ruled that congressional Democrats’ lawsuit against Trump for emoluments violations could continue. The lawsuit alleges that the president’s private business violates the Constitution, which prohibits the acceptance of gifts or payments from foreign governments. American Oversight filed a lawsuit in May against the State and Justice Departments after Reuters found that at least seven foreign governments received State Department approval to rent condominiums in New York’s Trump World Tower in 2017 without the approval of Congress.

Ivanka, Jared and a Chilean Mining Company: We filed a lawsuit for more information about the administration’s decision to renew leases in Minnesota for a Chilean mining company — which just so happens to be headed by the family of Ivanka Trump and Jared Kushner’s D.C. landlord. Read more here.

Scandal-Lite Rick Perry: Energy Secretary Rick Perry may seem scandal-free, but whether his tenure has been ethically clean is questionable. For instance, we obtained records suggesting that he played a role in the Trump administration’s push to sell nuclear technology to Saudi Arabia. “Perry may not have engaged in cartoonish behavior like [former EPA Administration] Scott Pruitt,” American Oversight Executive Director Austin Evers told the Daily Beast, “but that doesn’t make his tenure scandal-free by any stretch.”

It’s Coming from Inside the CFPB: We obtained resumes that reveal that appointees to senior-level jobs at the Consumer Financial Protection Bureau regularly advertised their efforts to weaken the watchdog agency — while seeking positions where they could determine its future under former Director Mick Mulvaney. New hires touted their experience working on the Financial CHOICE Act and other changes that would have severely weakened the CFPB’s authority and its power to examine financial institutions, or oversee arbitration agreements and the payday loan industry.

Kellyanne Conway: During a House Oversight and Reform Committee hearing on Wednesday about Hatch Act violations, the committee voted to subpoena White House Counselor Kellyanne Conway, who failed to appear for the hearing. Special Counsel Henry Kerner was there, however, and offered testimony reiterating his recommendation from two weeks ago that Conway should be removed from office for repeatedly engaging in partisan political activity while at work. You can read more about the administration’s potential Hatch Act violations here.