Lawsuits 2010-2012

On January 6, 2010, CREW sued the Securities and Exchange Commission (SEC) for failing to provide records under the Freedom of Information Act (FOIA) reflecting the extent to which the SEC has lived up to its promise to reform its Enforcement Division. Over the past several years CREW has used the FOIA to monitor the SEC’s progress in implementing reforms that will better enable the agency to catch massive fraud schemes, such as those perpetuated by Bernard Madoff and Allen Stanford. After CREW sued, the SEC produced several hundred pages of documents and explained some of the steps it had taken. CREW then dismissed the lawsuit. The SEC’s response revealed some progress, but also that much work remained.

On April 21, 2010, CREW filed a lawsuit against the Department of the Treasury for failing to provide CREW Internal Revenue Service (IRS) records under the Freedom of Information Act (FOIA) related to savings from the e-Government Travel Service, web-based travel management services provided to the federal government by three contractors. When the $450 million e-Gov Travel contract was awarded in 2003, the government said it would save millions of dollars by reducing federal travel management costs by up to 50 percent, but it was unclear if those savings have been realized. After CREW filed the lawsuit, the IRS produced several hundred pages of records, and CREW subsequently agreed to dismiss the lawsuit.

On May 11, 2010, CREW filed a lawsuit against the Department of Justice (DOJ) for failing to provide records under the Freedom of Information Act (FOIA) relating to missing emails sent to or from John Yoo. In February 2010, DOJ made public a July 2009 report of its investigation into the roles of former high-ranking Office of Legal Counsel (OLC) officials John Yoo and Patrick Philbin in the drafting of OLC’s torture memos, which authorized the use of torture when interrogating detainees outside of the United States. The investigation was hampered by the fact that most of Mr. Yoo’s emails and many of Mr. Philbin’s had disappeared. CREW’s initial FOIA request asked OLC to provide any guidance DOJ employees received regarding preservation of emails as well as any records showing there might have been problems with the storage or retention of emails in OLC. CREW sent a follow-up request seeking copies of all existing emails sent to or from Mr. Yoo, in an effort to ascertain the extent of the problem with his missing emails. CREW later filed a third FOIA request for Mr. Yoo’s emails with DOJ’s Justice Management Division. After CREW sued, DOJ disclosed more than a thousand pages of records, and CREW subsequently agreed to dismiss the lawsuit. The court later awarded CREW attorneys’ fees.

On August 11, 2010, CREW and CREW Executive Director Melanie Sloan filed suit against the Federal Election Commission (FEC) seeking to end the FEC’s practice of summarily dismissing complaints without explanation, leaving complainants insufficient information to sue the agency for failing to enforce campaign finance laws. For the past several years, the FEC has demonstrated a pattern and practice of dismissing complaints because the Republican and Democratic commissioners are deadlocked 3 to 3, particularly in controversial cases. In such cases, the law gives complainants 60 days to file suit in federal court asking for judicial review of the dismissals. But because the FEC frequently fails to provide a rationale for its decision before the 60 days expire, complainants cannot file a lawsuit in which they would have to explain how or why the FEC erred.

On October 7, 2010, CREW sued the Department of Education for failing to provide CREW records under the Freedom of Information Act related to communications about or with specified individuals and entities regarding the for-profit education industry. CREW made this request in the wake of press reports that a number of individuals were attempting to influence Education’s regulation of the for-profit industry to further these individuals’ own financial interests.

On October 26, 2010, CREW sued the Department of Justice (DOJ) for the failure of the Bureau of Prisons (BOP) to provide CREW records under the Freedom of Information Act (FOIA) related to DOJ’s efforts to keep Jack Abramoff from talking to the media while he was imprisoned. The former lobbyist reportedly had agreed to cooperate with a documentary filmmaker who then was making a movie about Mr. Abramoff, but BOP exerted pressure to dissuade him from granting media interviews.

On February 14, 2011, CREW sued the Department of Justice (DOJ) for failing to provide CREW records under the Freedom of Information Act concerning DOJ’s investigation and prosecution of Paul J. Magliocchetti, the founder and owner of PMA Group, Inc., for false statements, making illegal conduit campaign contributions, making illegal corporate campaign contributions, and other charges. Mr. Magliocchetti pled guilty to most of the charges against him, and the government made public the plea agreement he entered with DOJ and issued press releases announcing both the prosecution and the plea agreement. Nevertheless, in response to CREW’s FOIA request for documents related to the investigation and prosecution, DOJ’s Criminal Division withheld all documents under Exemption 7(A), which protects records compiled for law enforcement purposes that reasonably could be expected to interfere with ongoing enforcement proceedings. Separately, the Executive Office for United States Attorneys also withheld all responsive documents, claiming their release would violate the Privacy Act.

On March 22, 2011, CREW sued the Department of Justice (DOJ) for failing to provide records related to the government’s now closed investigation of former House Majority Leader Tom DeLay (R-TX). DOJ and the FBI investigated the relationship between Rep. DeLay, Jack Abramoff and others for five years, but decided in August 2010 not to prosecute the disgraced former Texas lawmaker. In October 2010, CREW filed Freedom of Information Act (FOIA) requests for records related to the investigation, seeking to learn why DOJ decided not to prosecute Rep. DeLay. DOJ denied CREW’s request, claiming the release of records could interfere with open law enforcement proceedings, and the FBI asserted that releasing records would violate Rep. DeLay’s privacy.

On March 31, 2011, CREW filed a lawsuit against the Department of Education challenging its failure to produce any documents in response to two Freedom of Information Act requests. One request, filed in September 2010, sought records of communications pertaining to four for-profit colleges, while the second, filed in February 2010, sought all contracts between former Deputy Undersecretary Robert Shireman and Education from June 2010 to the present.

On April 20, 2011, CREW sued the Department of Justice (DOJ) for failing to provide records under the Freedom of Information Act (FOIA) concerning the government’s investigation of former House Transportation Committee Chairman Don Young (R-AK). DOJ conducted at least two investigations of Rep. Young. One probed whether he accepted bribes, illegal gratuities, or unreported gifts from an Alaskan company, and a second one examined Rep. Young’s insertion of a $10 million earmark into a transportation bill – after Congress passed it – that benefited one of his campaign contributors.  CREW’s FOIA requests to the FBI, Criminal Division, and the Executive Office of United States Attorneys sought records concerning these investigations in an effort to determine why DOJ never prosecuted Rep. Young.

On May 11, 2011, CREW sued the Department of Education after the agency refused to comply with CREW’s Freedom of Information Act request for copies of calendars and other meeting and appointment records of former Education Deputy Undersecretary Robert Shireman and current Deputy Undersecretary James Kvaal. Both men have played major roles in the development of regulations governing the for-profit education industry, and CREW requested the appointment records to shed light on which individuals and groups may have influenced the regulatory process and its outcome. After CREW sued, the Department of Education produced 1,591 pages of documents, and CREW agreed to dismiss the case on October 14, 2011.

On May 24, 2011, CREW filed a lawsuit against the Federal Election Commission (FEC) based on the agency’s failure to produce any documents in response to a Freedom of Information Act request seeking correspondence between FEC Commissioners Matthew S. Peterson, Caroline C. Hunter, and Donald F. McGhan II and outside individuals and entities. CREW’s request also sought all calendars and agendas for these commissioners as well as all written ex parte communications these commissioners sent to an FEC ethics officer.

In CREW v. Federal Election Comm’n (D.C. Cir. 2013),  CREW won a major victory in this case, which the D.C. Circuit described as raising an “important question of procedure” under the Freedom of Information Act.  At issue was the meaning of the requirement under the FOIA that agencies make a determination on a request within 20 business days.  The FEC had argued, and the district court below had agreed, that all an agency need do within 20 days is advise the requester the agency intends to comply with the request at some point.

The D.C. Circuit disagreed, finding — as CREW had argued — that within 20 days an agency must:  (1) gather and review responsive documents; (2) determine and communicate the scope of documents it intends to release and withhold, and the reasons for any withholdings; and (3) inform the requester of its right to appeal any adverse determination  The court noted, “It is not enough that, within the relevant time period, the agency simply decide to later decide,” as the FEC had argued.  Accordingly, the court reversed the judgment below and remanded the case to the district court for consideration of CREW’s arguments on the merits of the FEC’s withholdings.

This was an important victory.  Had the FEC’s interpretation prevailed, agencies could have met their responsibility to make a determination simply by sending out a letter that acknowledges receiving the request and states the agency will get to it in turn.  In those circumstances, FOIA requesters could have been left in limbo for months, or possibly years, with no access to judicial review.  The D.C. Circuit’s holding prevents this unjust result and, as the court itself stated, enforces the “comprehensive scheme” in the FOIA “that encourages prompt request-processing and agency accountability.”

On June 2, 2011, CREW sued the Department of Justice (DOJ) for failing to provide records under the Freedom of Information Act concerning the government’s investigation of then-House Appropriations Committee Chairman Emeritus Jerry Lewis (R-CA). In 2006, DOJ, the FBI, and other law enforcement agencies launched an investigation into whether Rep. Lewis broke the law by steering millions of dollars in earmarks to clients of lobbying firms managed by his friend former Rep. Bill Lowery (R-CA) in exchange for campaign contributions. After four years, the DOJ announced it had closed its investigation of Rep. Lewis’s conduct. CREW’s FOIA requests to the FBI, Criminal Division, and the Executive Office of United States Attorneys sought records concerning these investigations in an effort to determine why DOJ never prosecuted Rep. Lewis.

On June 11, 2014, U.S. District Court Judge James E. Boasberg granted the government’s motion for summary judgment, bringing the litigation to a close. CREW had prevailed on several earlier summary judgment motions, when the court rejected DOJ’s claim that privacy interests made the requested documents categorically exempt, and ordered DOJ to process the requests.

As a result, CREW received over 2,000 documents pertaining to the Lewis investigation, but the government continued to withhold portions of documents under FOIA Exemption 5 as protected by the attorney-client and work product privileges, and the privacy protections of Exemptions 6 and 7(C). The court rejected the government’s original justifications as insufficient, and even after DOJ submitted additional explanations for its withholdings decided to review the contested documents in camera. After that review, the court granted the government’s motion. As a result of this ruling, CREW and the public have been denied access to documents that address resource issues in the investigation. Other documents CREW received in response to its FOIA requests suggest the investigation was stymied by DOJ’s failure to provide adequate resources.

On June 16, 2011, CREW sued the Department of Justice (DOJ) for failing to provide CREW records under the Freedom of Information Act (FOIA) concerning investigations in which the late Rep. John Murtha (D-PA) was named. DOJ conducted multiple investigations into lobbying of Rep. Murtha and earmarks he obtained for a number of organizations and clients of lobbying firms, including Paul Magliocchetti, and defense contractors in Rep. Murtha’s district. CREW’s FOIA request to the FBI, Criminal Division, and the Executive Office of United States Attorneys sought records concerning these investigations in an effort to determine why DOJ never prosecuted Rep. Murtha.

On September 27, 2011, CREW sued the Securities and Exchange Commission (SEC) and its Chairman, Mary L. Schapiro, for the SEC’s decades-long policy and practice of requiring Enforcement Division staff to destroy early-stage investigative files. The SEC’s unlawful policy has resulted in the destruction of thousands of files, including records concerning the fraudulent activities of Bernie Madoff, financial fraud at Bank of America, and an insider trading investigation of the now defunct Lehman Brothers.

On January 17, 2013, U.S. District Court Judge James E. Boasberg granted summary judgment for the SEC in CREW’s lawsuit, which challenged the SEC’s failure to fully restore all preliminary investigative files the agency had deleted. SEC policy had previously required the destruction of records from preliminary inquiries that did not result in formal investigations. As a result, critical records were lost. Once the issue came to light, resulting in congressional and inspector general inquiries, the SEC took limited steps to restore some of the deleted records. CREW challenged these restoration efforts as insufficient, arguing the SEC had a legal obligation to do more. The court disagreed, ruling the SEC was under no duty to restore any of the files destroyed. The court also found that even if a duty did exist, the SEC’s recovery efforts were sufficient, despite acknowledging more records likely could have been recovered. The court’s ruling effectively means investigative records that still may exist in other forms and places, but that the SEC has decided aren’t important enough to restore, are lost for good.

On October 13, 2011, CREW sued the Securities and Exchange Commission (SEC) for failing to provide records under the Freedom of Information Act (FOIA) reflecting the extent to which the SEC has lived up to its promise to reform its Enforcement Division. Over the past several years CREW has used the FOIA to monitor the SEC’s progress in implementing reforms that will better enable the agency to catch massive fraud schemes, such as those perpetuated by Bernard Madoff and Allen Stanford. The SEC’s response to a previous FOIA request from CREW revealed some progress, but also that much work remained.

On February 15, 2012, CREW sued the Department of the Treasury for failing to respond to CREW’s FOIA request for records from the Internal Revenue Service (IRS) related to the House Ethics Committee’s investigation of former Speaker Newt Gingrich (R-GA).

On September 10, 2012, CREW filed a lawsuit against the Department of Justice (DOJ) based on the agency’s failure to provide CREW with any documents in response to its Freedom of Information Act request for records from DOJ’s investigative file of Sen. John Ensign (R-NV). CREW sought documents from the FBI, Criminal Division, and Executive Office of U.S. Attorneys that would help explain why DOJ closed its investigation without prosecuting Sen. Ensign. All three DOJ components refused to provide any documents, claiming Sen. Ensign’s privacy interests provide categorical protection from disclosing any documents in DOJ’s files. At the time of this lawsuit, two district court judges had already rejected similar claims by DOJ regarding the investigative files of Rep. Jerry Lewis (R-CA) and Rep. Don Young (R-AK). As a result, the FBI produced thousands of pages of documents that helped explain what happened in the Young and Lewis investigations.

On October 3, 2012, CREW filed a Freedom of Information Act lawsuit against the Department of Defense (DOD), challenging the agency’s failure to produce to CREW information from a database DOD is required by law to maintain on the advice ethics officials have given to departing DOD employees. CREW sought this information as part of its examination of the revolving door at DOD.