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APPEAL UNDER THE FREEDOM OF INFORMATION ACT December 7, 2012

U.S. EPA FOIA and Privacy Branch 1200 Pennsylvania Avenue, N.W. (2822T) Washington, DC 20460 Re: Appeal of Initial Determination FOIA Request HQ-FOI-2013-001343 hq.foia@epa.gov

BY ELECTRONIC MAIL:

EPA FOIA Appeals Office, We appeal EPAs refusal to search for responsive records or otherwise to provide a substantive response to the above-captioned request under the Freedom of Information Act. By its refusal EPA (or the Agency) constructively denies our request, which we appeal as described below. I. JURISDICTIONAL STATEMENT The underlying FOIA request was properly filed under 5 U.S.C. 552. Pursuant to 40 C.F.R. 2.104, you have jurisdiction because If [requesting parties] are dissatisfied with any adverse determination of your request by an office, [they] may appeal that determination to the Headquarters Freedom of Information Staff. EPA has refused to search for records responsive to, or otherwise to process or to respond to our request, with singular lack of diligence. By its

refusal EPA constructively denies our request. Further, all procedural rules have been complied with as this is: (1) in writing, (2) properly addressed, (3) clearly identified as an Appeal Under the Freedom of Information Act and includes a copy of the underlying Request (Ex. 1), (4) sets forth grounds for reversal, and (5) was filed within 30 days of November 30, 2012, which is the date of EPAs adverse determination of constructive denial sent to us by electronic mail. II. PROCEEDINGS BELOW This appeal involves one FOIA Request, sent by electronic mail to EPAs headquarters FOIA office at hq.foia@epa.gov on November 12, 2012, seeking: copies of any and all email sent to or from an EPA employee in the Office of the Administrator (OA) from or to an email account in the name of, or email alias,1 Richard Windsor, from December 15, 2008 to the date you process this request, inclusive. We understand from prior research and EPA responses to FOIA requests that Administrator Lisa Jackson used one or more alias email accounts in the conduct of her public service with EPA. We also understand that one such alias is Richard Windsor. The described records are Agency email correspondence on Agency computers or servers, that were sent or received by Agency personnel to or from that Jackson email address, from that date the selection was announced (Monday, December 15, 2008) through the date you process this request.
EPA assigned this request identification number HQ-FOI-2013-001343 by letter dated

November 30, 2012.

By this term we mean the arbitrary -- that is, assigned -- term associated with an address to describe it by, e.g., an address book or an email account holder).
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III. Standards of Review: All Doubts Must be Resolved in Favor of Disclosure It is well-settled that Congress, through FOIA, sought to open agency action to the light of public scrutiny. DOJ v. Reporters Comm. for Freedom of Press, 498 U.S. 749, 772 (1989) (quoting Dept of Air Force v. Rose, 425 U.S. 353, 372 (1976)). The legislative history is replete with reference to the, general philosophy of full agency disclosure that animates the statute. Rose, 425 U.S. at 360 (quoting S.Rep. No. 813, 89th Cong., 2nd Sess., 3 (1965)). Accordingly, when an agency withholds requested documents the burden of proof is placed squarely on the agency, with all doubts resolved in favor of the requester. See, e.g., Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340, 352 (1979). This burden applies across scenarios and regardless of whether the agency is claiming an exemption under FOIA in whole or in part. See, e.g., Tax Analysts, 492 U.S. 136, 142 n. 3 (1989); Consumer Fedn of America v. Dept of Agriculture, 455 F.3d 283, 287 (D.C. Cir. 2006); Burka, 87 F.3d 508, 515 (D.C. Cir. 1996). These disclosure obligations are to be accorded added weight in light of the recent Presidential directive to executive agencies to comply with FOIA to the fullest extent of the law specifically cited in my request to EPA to produce responsive documents. Presidential Memorandum For Heads of Executive Departments and Agencies, 75 F.R. 4683, 4683 (Jan. 21, 2009). As the President emphasized, a democracy requires accountability, and accountability requires transparency, and the Freedom of Information Act . . . is the most prominent expression of a profound national commitment to ensuring open Government. Accordingly, the President has directed that FOIA be administered with a clear presumption: In the face of doubt,

openness prevails and that a presumption of disclosure should be applied to all decisions involving FOIA. IV. EPA Arbitrarily and Capriciously Claimed CEI Failed to Provide Information Sufficient to Search for Responsive Records EPA wrote that While we have reviewed and attempted to process these requests, the EPA unfortunately is unable [sic] to process these particular requests [NB: referring to this request and another, discrete if apparently equally unwelcome request addressed in a separate appeal] because they fail to adequately describe the records sought. EPA regulations at 40 C.F.R. Section 2.102(c) state that a FOIA request should include specific information about each record sought, such as the date, title or name, author, recipient and subject matter. Your requests essentially indicate a recipient, without additional information to assist EPA employees in the identification of records you seek. By this EPA advances numerous misstatements. First, the Agency grounds its refusal to put forth the required, reasonable diligence, and to search for responsive records, on the grounds of an arbitrary and capricious misstatement of our request (misstating the search parameters provided). For example, EPA incorrectly asserts we fail to adequately describe the records being sought because we only indicate a recipient. EPA thereby wrongly ignores that we in fact plainly state a location for the employee accounts to be searched (one office, the Office of the Administrator), a sender/recipient on the responsive correspondence (Richard Windsor), and time parameters.

Further, EPA regulations do not, as EPA implies, require that requested records include those factors. The Agency is fully aware of this, processing FOIA requests each working day that, like CEIs request at issue in this appeal, do not cite the title or subject matter but only correspondents and time parameters. The illustrative search parameters come from a sentence in 40 C.F.R. Section 2.102(c) that EPA selectively cites, and actually begins Whenever possible... EPAs initial determination grounded in its decision to ignore that language and declare CEIs request deficient for failing to cite parameters it should cite is is arbitrary and capricious. Regardless, FOIAs applicable standard governs. The linchpin inquiry is whether the agency is able to determine precisely what records are being requested. Tax Analysts v. IRS, 117 F.3d 607, 610 (D.C. Cir. 1997) (quoting Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir 1982)). A description would be sufficient if it enabled a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort. Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978). Records are reasonably described when the description enables a professional employee of the agency who is familiar with the subject area of the request to locate the record with a reasonable amount of effort, and broad, sweeping requests lacking specificity are not sufficient. Tooley v. Bush, 2006 U.S. Dist. LEXIS 92274 (D.D.C., December 21, 2006, decided). To deny that CEIs request citing the location, correspondent and time parameters is not sufficient to enable a professional employee who was familiar with the subject area of expertise to locate the records with a reasonable amount of effort is arbitrary and capricious.

Of course, while one can always provide more details, such as font size and type, for example, it is clear that CEI provided sufcient information for EPA to easily plug the stated parameters into standard search format. The stated search parameters in this standard format would be, as follows: 1) Copies of all emails sent to, from or copied to any email address used by EPAs Office of administrator (OA); 2) Filtered on: (Time Message Sent Later Than 12/15/2008 12:00:01 AM and Time Message Sent Earlier Than 12/10/2012 11:59:59 PM;
3) and (Display To: Contains Richard Windsor

or Display From: Contains Richard Windsor or Display CC: Contains Richard Windsor or Display Bcc: Contains Richard Windsor The ease with which this is done, contrasted with EPAs unsupported claim that a search is not possible, suggests that EPAs initial determination is no more than a delaying tactic for a request which it found particularly unwelcome. A possible further contributing factor is the unattering attention, both public (media) and congressional, that this requester has drawn to EPAs own actions in the recent FOIA requests, including on the particular issues relevant to the request at issue in this matter, alluded to by the Agency in its non-responsive November 30 letter. Moreover, CEIs request involves none of the subjectivity or interpretation common among requests EPA regularly processes, seeking records relating to or that relate to in any way to some topic. Instead, CEIs far more definitive request sought records by identifying the location (OA), and not one but two parties to the correspondence (one being employees in the Office of Administrator, the other an email address which we provided EPA specifically by

referring to its own email, and time parameters). Each of these search parameters limits the initial universe of records. Further, having informed us of this alias address to which we refer in HQFOI-2013-001343, EPA knows the address; regardless, we identified specific EPA emails containing it and the FOIA request in response to which EPA provided it, allowing ready access to the address by EPAs FOIA office. It is implausible for EPA to purport not to know the address, even if only because of the scramble and serial responses to media outlets about this account after we publicized its discovery.2 To claim this information is insufficient to perform a search denies credulity, but also EPAs own extensive record of regularly searching for and producing records in response to searches that, unlike ours, require subjectivity and interpretation. One recent and quite high-profile example is EPA searching for and providing Encana with 33,000 emails regarding Pavilion, Wyoming and hydraulic fracturing (request tracking number 08-FOI-00114-12). Any argument that EPAs inability to conduct the search because the ostensible lack of information led to our request being overly broad, due for example to a burden of seeking all emails from Lisa Jacksons alias account under the name Richard Windsor, will

EPA knows more about this issue than any other entity, including that Lisa Jacksons alias email address is Richard Windsor shows up in internal emails, when, e.g., a To party, as Richard Windsor/DC/USEPA/US@EPA (see Exhibit 2, attached). Because the Agency sources who informed us of this alias account also suggested a non-official account being used in the same name, we do not further narrow the request to only that address, but emails to or from (including as cc: or bcc:) Richard Windsor. That there is no EPA employee with the name of Richard Windsor further affirms the likelihood that this search is broad is minimal.
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struggle to overcome the fact that EPA conducts searches and produces records in response to requests requiring a large production. Indeed, Encanas mid-December 2011 requests sought records related to more than a dozen Agency activities, and even the remarkably broad all of the information that is relevant to a meaningful evaluation of the EPAs draft report. EPA managed to conduct and satisfy a search that broad and which required much interpretation and subjectivity; it stands in stark contrast to our one clearly described category -- emails to or from OA employees, to or from Richard Windsor. CEIs search far more easily lends itself to a search and production with a small fraction of the burden and by comparison relatively more, and certainly enough, specifics in comparison. To deny this is, too, arbitrary and capricious. Not only was the request far less specific than our simple request providing location (one office), recipient and time parameters, it also was extremely broad in its coverage, another possible element of what we must view from the circumstances as EPAs attempted delay/ obstruction of claiming our request had insufficient information to perform a search.3 EPA agreed to conduct this search and produce responsive records despite precedent indicating it could refuse, which precedent is not applicable to CEIs far more tailored, less broad, relatively more specific search. Massachusetts v. HHS, 727 F. Supp. 35, 36 n.2 (D. Mass. 1989) (holding that a request for all records relating to a particular subject is overbroad, thus See, EPA identified over 200 people with potentially responsive documents. We used advanced electronic document collection and review systems in order to provide a complete and thorough response to your broad request...EPA has devoted hundreds of staff hours from over 30 agency attorneys and technical professionals to completing this collection and review...of over 150,000 documents, September 27, 2012 letter from EPA Region 8 administrator James Martin to Encana counsel Linnea Brown.
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unfairly plac[ing] the onus of non-production on the recipient of the request and not where it belongs -- upon the person who drafted such a sloppy request).) See also Dale v. IRS, 238 F. Supp. 2d 99, 104-05 (D.D.C. 2002) (concluding that a request that sought any and all documents . . . that refer or relate in any way to the requester failed to reasonably describe the records sought). Yet, somehow, this request was sufficient to allow a search, while CEIs far more tailored, less broad, relatively more specific search is not. Plainly, EPAs declaration of CEIs request as lacking in information necessary to allow a search was arbitrary and capricious. V. EPA Owed, and Has Arbitrarily and Capriciously Refused to Provide, CEI a Productive Response to its Request for Records Citizens have an overall right to obtain public records, affirmed by FOIA. Toward that end, under FOIA an agency's obligation is to make a a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested. Oglesby v. U.S. Department of the Army, 920 F. 2d 57, 68 (D.C. Cir. 1990). Despite claiming a search of some sort was attempted EPAs response, revealed by, inter alia, the ease with which CEIs requests search parameters are plugged into standard search format, indicates it made no effort whatsoever. This is arbitrary and capricious and the refusal to even attempt a search in good faith violates EPAs obligations under FOIA. Similarly, FOIA provides that a requesting party is entitled to a substantive agency response within twenty working days, affirming the agency is processing the request and intends

to comply. It must rise to the level of indicating that the agency is exercising due diligence in responding to the request...Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request. (5 U.S.C. 552(a)(6)(C)(i)). The courts have deemed a substantive agency response to mean the agency must begin to process the request. See, e.g., Oglesby v. U.S. Dept of Army, 920 F.2d 57. Examples include informing a requester that it assigned the request(s) to the simple, normal or complex processing tracks and giving notice that it is reviewing some quantity of records with an eye toward production on some estimated schedule. See generally, Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, 839 F. Supp. 2d 17, 25 (D.D.C. 2011). Instead of providing a substantive response, or any indication it is in fact processing CEIs request, EPA elected to provide a facially unreasonable claim that CEI failed to adequately described the records sought (see arguments, supra). It therefore failed even to provide CEI even the most basic response. EPA has therefore constructively denied it. We draw particular attention to the Presidents instruction that The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. Presidential Memorandum For Heads of Executive Departments and Agencies, 75 F.R. 4683, 4683 (Jan. 21,

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2009). The Presidential directive merely reflects EPAs longstanding position on information dissemination and access. EPA regulations reiterate the bias toward release. We also note the attorney generals memorandum published on March 19, 2009. 4 This follow-up guidance to President Obamas memoranda states, inter alia, On his first full day in office, January 21, 2009, President Obama issued a memorandum to the heads of all departments and agencies on the Freedom of Information Act (FOIA). The President directed that FOIA should be administered with a clear presumption: In the face of doubt, openness prevails.5 Holder instructed chief FOIA officers to support career staff by ensuring they have the tools necessary to respond promptly and efficiently to FOIA requests. Holder similarly instructed that, when a record has information that is properly withheld, the agency should look to redacting portions, not the entire record. This instruction is simply consistent with long-standing law and policy. EPA must now reverse its refusal to search for responsive records, and produce responsive records. VI.
CONCLUSION

EPAs Initial Determination is a constructive denial of CEIs request. EPA must conduct its search of all accounts identified or described in our request de novo and provide non-exempt content of responsive records unless withholding is justified by an express exemption from FOIA; and EPA must grant CEIs request to have its fees waived or substantially reduced.
4 Attorney

General Eric Holder, Memorandum for the Heads of Executive Departments and Agencies, The Freedom of Information Act, March 19, 2009.
5 OIP Guidance, President Obamas FOIA Memorandum and Attorney General Holders FOIA Guidelines, Creating a New Era of Open Government, http://www.justice.gov/oip/foiapost/2009foiapost8.htm. 11

We remind EPA our request is for records dated up to the date EPA processes the request. Respectfully submitted,

Christopher C. Horner, Esq.

1899 L Street NW, Suite 1200 Washington, DC 20036 202.262.4458 (M) CHorner@CEI.org Attachments

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