Professional Documents
Culture Documents
APPENDIX
Excessive or Inappropriate Redactions
1.
2.
3.
4.
5.
6.
Lengthy Delays
7.
9.
10.
11.
14.
17.
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www.ed.gov
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Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation.
Appeal Address:
U.S. Department of Education
Office of Management
400 Maryland Avenue, SW, LBJ 2W311
ATTN: Appeals Office
Washington, DC 20202-4500
Or, you may complete the online FOIA appeal form, located at:
http://www.ed.gov/policy/gen/leglfoialfoia appeal form l.html.
If you have any questions, please contact the FSC at (202) 401-8365 or
EDFOIAMANAGER@ed.gov.
Sincerely,
~~
Arthur Caliguiran
FOIA Public Liaison
FOIA Service Center
Enclosure
COA-A005
Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation.
COA-A006
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-2subject line, and the fax cover sheet should be clearly marked Freedom of Information
Act Appeal. The e-mail, fax machine, FOIAonline, and Office are monitored only on
working days during normal business hours (8:30 a.m. to 5:00 p.m., Eastern Time,
Monday through Friday). FOIA appeals posted to the e-mail box, fax machine,
FOIAonline, or Office after normal business hours will be deemed received on the next
normal business day.
Sincerely,
Bobbie Parsons
Bobbie Parsons
FOIA Officer, Immediate Office of the Secretary
Office of Privacy and Open Government
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See 16 C.F.R. 4.11(a)(2) (2015) (If an initial request is denied in part, the time for appeal will not expire until 30
days after the date of the letter notifying the requester that all records to which access has been granted have been made
available.).
2
Letter from Cause of Action to Claudia Simons, Legislative Counsel, Office of Congressional Relations, Fed. Trade
Commn, at 1 (Oct. 30, 2014) (attached as Ex. 1).
3
Letter from Sarah Mackey, Assoc. Gen. Counsel, Fed. Trade Commn, to Cause of Action (Nov. 20, 2014) (on file with
Cause of Action).
COA-A067
Jonathan E. Nuechterlein
March 12, 2015
Page 2
Action as a commercial use requester. 4 On December 16, 2014, FTC issued an interim
determination letter, making a partial production of documents (33 pages), which contained
redactions purportedly based on Exemptions 6, 7(A) and 7(C), and the Speech or Debate Clause
(U.S. Const. Art. I, 6, cl. 1) (the Clause). 5 On January 15, 2015, Cause of Action filed a
timely appeal of all such redactions. 6 On February 10, 2015, FTC issued a second and final
determination letter, granting partial access to the accessible records in a production of
documents (20 pages), which contained redactions purportedly based on Exemptions 3 in
conjunction with Section 21(f) of the FTC Act (15 U.S.C. 57b-2(f)), 5 under Deliberative
Process, 6, 7(A), 7(C), 7(E) and the Clause. 7
Discussion
FTCs February 10, 2015 letter indicates [s]ome responsive records are exempt under
Exemption 3 in conjunction with Section 21(f) of the FTC Act, yet the 20 page productions does
not indicate any redactions under that provision, presumably because several pages of the
1.5GB of responsive records were withheld in full under the exemption and other exemptions.
FTC fails to meet its burden of proof to establish this exemption because FTCs letter merely
states a formulaic recitation of the law, which lacks any particularized explanation of how the
purportedly exempted documents fall within the scope of Section 21(f), and are therefore exempt
from disclosure under Exemption 3. See Campbell v. U.S. Dept of Justice, 164 F.3d 20, 30 (D.C.
Cir. 1998). Moreover, there is no basis asserted upon which to conclude that the documents
sought would involve Exemption 3.
Similarly, FTCs redaction of documents under the deliberative process privilege
(Exemption 5) is flawed. The D.C. Circuit has held that before an agency may invoke the
deliberative process privilege, two necessary prerequisites must be met: first, the communication
must be predecisional, i.e., antecedent to the adoption of an agency policy (Jordan v. United
States Dept of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc)); second, the
communication must be deliberative, i.e., a direct part of the deliberative process in that it
makes recommendations or expresses opinions on legal or policy matters. Vaughn v. Rosen,
523 F.2d 1136, 1143-44 (D.C. Cir. 1975). FTC has the burden to show that the records in
question satisfy both of these requirements. Coastal States Gas Corp. v. Dept of Energy, 617
F.2d 854, 866 (D.C. Cir. 1980).
Here, the second item of Cause of Actions FOIA request sought only those records in the
possession of OCR that related to FTC communications with the House Oversight and
Government Reform Committee regarding the FTCs current adjudication in LabMD. To claim
Exemption 5 for any communications regarding LabMD, whether internal to the FTC or with an
outside entity, would only be appropriate if the communications were predecisional to the
4
Letter from Cause of Action to Sarah Mackey (Dec. 19, 2014) (on file with Cause of Action).
Letter from Sarah Mackey to Cause of Action (Dec. 16, 2014) (attached as Ex. 2).
6
Letter from Cause of Action to Jonathan E. Neuchterlein (Jan. 15, 2015) (attached as Ex. 3). On February 17,
2015, FTC denied Cause of Actions January 15, 2015 appeal. Letter from David Shonka to Cause of Action (Feb.
17, 2015) (on file with Cause of Action).
7 Letter from Sarah Mackey to Cause of Action (Feb. 10, 2015) (attached as Ex. 4).
5
COA-A068
Jonathan E. Nuechterlein
March 12, 2015
Page 3
adoption of agency policy in LabMD - in other words, a Commission issuance of a final order;
and deliberative, that is, part of a legal recommendation concerning the Commissions or a
commissioners penultimate decision-making. Problematically, in order for Cause of Action to
determine the validity of the privilege being invoked, the FTC must disclose the identity of the
person for whose communication the privilege is being invoked, or, in the alternative, confirm
that the privilege has been applied to a document issued by the person with authority to speak
finally and officially for the agency. Pfeiffer v. CIA, 721 F. Supp. 337, 340 (D.D.C. 1989).
When a commissioner or the Commission communicates on a matter relating to an adjudication,
that document is not considered predecisional because the Commission and its members have
final decision making authority on all agency adjudications before the FTC. Brinton v. Dept of
State, 636 F.2d 600, 605 (D.C. Cir. 1980). Here, FTCs conclusory description of [s]ome
responsive records contain[ing] staff analyses, opinions, and recommendations misses the mark
because it does not explain why or how the documents are predecisional or deliberative.
Moreover, the scope of Cause of Actions FOIA request does not implicate deliberative process
considerations per se.
FTC also redacts various parts of documents based on Exemptions 6 and 7(C). However,
FTC has failed to establish cognizable substantial privacy interests. Moreover, even assuming
such privacy interests exist, FTC has failed to demonstrate that they outweigh the strong public
interest in disclosure. See Multi AG Media LLC v. Dept of Agric., 515 F.3d 1224, 1230 (D.C.
Cir. 2008). Here, Cause of Action seeks the requested records for the purposes of government
accountability, a recognized purpose served by the FOIA. See, e.g., Balt. Sun v. U.S. Marshals
Serv., 131 F. Supp. 2d 725, 729 (D. Md. 2001).
In addition, FTCs use of the Speech or Debate Clause to redact documents is erroneous
as a matter of law. See Paisley v. CIA, 712 F.2d 686, 696 (D.C. Cir. 1983), vacated (in part),
724 F.2d 201 (D.C. Cir. 1984). 8 FTC does not have standing to assert the Clause because its
privileges belong exclusively to Members of Congress. See Paisley, 712 F.2d at 687 & 697;
Eastland v. United States Servicemens Fund, 421 U.S. 491, 502 (1975) (citations omitted);
Hutchinson v. Proxmire, 443 U.S. 111, 127 (1979); United States v. Brewster, 408 U.S. 501, 507
(1972). FTC has not shown that any individual legislator or their aide(s) will be subject to civil
or criminal litigation as a result of FTCs production of documents, nor has FTC indicated that
Congress asked FTC to invoke the Clause on its behalf. See Paisley, 724 F.2d at 204.
Alternatively, if Congress has asked FTC to invoke the Clause, then FTC should produce
evidence of that fact and/or identify all FTC employees involved in communications for which
Congress is claiming the Clause.
FTC suggests that disclosure would interfere with an ongoing activity by Congress, see
Ex. 4, at 1-2, but FTC does not show ongoing activity by Congress or any evidence of an
ongoing investigation, and the documents at issue do not reflect any possibility that such
legislative activity or action will result in a lawsuit against any individual member of Congress,
or that any congressional member will be questioned in any other place. Similarly, FTC has
8
Although FTC cites to Paisley in its December 16, 2014 and February 10, 2015 determination letters, FTC ignores
that Paisley refutes, rather than supports, FTCs position.
COA-A069
Jonathan E. Nuechterlein
March 12, 2015
Page 4
not met its burden to invoke Exemption 7(A), including that it makes no effort to show a specific
pending or contemplated law enforcement proceeding. See, e.g., NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 224 (1978).
Lastly, FTC claims that some information is exempted from disclosure under Exemption
7(E) that would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if
such disclosure could reasonably be expect to risk circumvention of the law. 5 U.S.C.
552(b)(7)(E). However, this claimed exemption must fail, particularly since it is being invoked
by FTCs Office of Congressional Relations, a non-investigatory arm of the FTC that is not
likely in possession of information that would fall under the exemption within the scope of
Cause of Actions FOIA request. Regardless, FTC has failed to describe with any specificity
what technique, procedure, or guideline it is using as a basis for the exemption as required by
law. See Judicial Watch, Inc. v. U.S. Dept of Commerce, 337 F. Supp. 2d 146, 181 (D.D.C.
2004) (citations omitted).
Conclusion
FTCs redactions are contrary to law, ultra vires, in retaliation for the exercise of
protected rights, and violate 5 U.S.C. 706(2)(A). The FTC should produce all documents in
unredacted form within 20 days.
Please do not hesitate to contact me at (202) 499-4232, or prashant.khetan@causeofaction.org
if you have any questions. Thank you for your consideration of this matter.
___________________________
PRASHANT K. KHETAN
CHIEF COUNSEL
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July 1, 2013
RE: 2013-06-131
Hugh Gilmore
Director, Disclosure Services
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COA-A104
Ryan Mulvey
From:
Sent:
To:
Subject:
foia_hq@epa.gov
Tuesday, May 20, 2014 2:17 PM
Moira Smith
FOIA Request EPA-HQ-2014-006678 Submitted
This message is to confirm your request submission to the FOIAonline application: View Request. Request
information is as follows:
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@ CAUSE
- , oACTION
Advocates for Government Accountability
March 9 2015
1 CAUSE
~----
Suite 6so
Washington, DC 20006
COA-A116
202.4994232
The Federal Records Act ("FRA") requires every federal agency, including the State
Department, to preserve its electronic records in accordance with applicable statutes, regulations,
and agency policies. In turn, National Archives and Records Administration ("NARA")
interpretive regulations define "record" as all papers or "documentary materials, regardless of
physical form or characteristics, made or received by an agency ... in connection with the
transaction of public business and preserved or appropriate for preservation by that agency ... as
evidence of the organization, functions, policies, decisions, procedures, operations or other
activities of the Government." 5
When agency records are unlawfully or accidentally removed, defaced, altered, or
destroyed, the agency must "promptly" notify NARA and produce a comprehensive report. 6 The
agency head also must collaborate with the Archivist of the United States to "initiate action
through the Attorney General for the recovery of records he knows or has reason to believe have
been unlawfully removed."7 If an agency does not contact the Attorney General within a
reasonable period of time, the Archivist is required to do so on his own, while simultaneously
notifying Congress that such a request has been made.
The FRA further establishes the framework for records management throughout the
federal government and requires the head of every agency, such as then-Secretary Clinton, to
"establish safeguards against the removal or loss ofrecords." 8 Agency heads also must "make
and preserve records containing adequate and proper documentation of the organization,
functions, policies, decisions, procedures, and essential transactions ofthe agency."9 Moreover,
the State Department's Foreign Affairs Manual ("F AM") provides direction "with respect to the
creation, maintenance, use, and disposition of records, including electronic ... and Internet"
records. 1 FAM tasks the Secretary with the primary responsibility to ensure the agency is
Jack Gillum and Ted Bridis, House committee subpoenas Clinton emails in Benghazi probe, ASSOCIATED PRESS
(Mar. 5, 20 15), http://goo.gl/25yWBb; see also J.K. Trotter, Source: Top Clinton Aides Used Secret Email Accounts
at State Dept., GAWKER.COM (Mar. 3, 2015), http://goo.gl/ctOQfu (noting that other State Department employees
also used private email accounts to conduct government business).
4
Edward-Isaac Dovere, White House alerted to potential Clinton email problem in August, POLITICO.COM (Mar. 6,
20 15), http://goo.gi/Dx50B8.
5
36 C.F.R. 1220.18.
6
/d. 1230.14.
7
44 u.s.c. 3106.
8
!d. 3105.
9
/d.3101.
10
Dep't of State, 5 Foreign Affairs Manual, at 411 (2), available at http://goo.gi/CISv1 R.
COA-A117
As set forth above, news reports reflect that Mrs. Clinton had control over her own server
hosting official agency emails, including relevant documents responsive to congressional
investigations into the terror attacks in Benghazi, Libya. The FRA, in addition to binding
regulations issued by NARA and the State Department (through its FAM) required thenSecretary Clinton to preserve her official communications on federal government servers or
electronic records systems approved by NARA.
Moreover, former-Secretary Clinton took no action during her tenure as Secretary of
State to preserve her personal emails on department servers, as required by the FRA. Based
upon her position as a federal agency head, in addition to numerous inspector general reports
finding inappropriate use of personal emails (as discussed below) Mrs. Clinton knew or should
have known that the failure to preserve her personal emails and the storage of those emails on a
personal server, without specific authorization from the Archivist, constituted a removal of
documents or materials without authority and with the intent to retain such documents or
materials at an unauthorized location. Finally, even if Mrs. Clinton's use of a personal email and
server during her tenure as Secretary of State does not constitute removal, the possession of the
only copies of official agency records as a departing employee on February 1, 2013 would
constitute unlawful removal under the FRA and its interpreting regulations.
11
/d. 414.1.
/d.415.1.
13
/d. 443.l(c).
14
/d. 432.\(c).
15
/d. 430. The State Department has been unable to confinn whether Mrs. Clinton transferred classified materials
to her personal email system, calling such inquiries not "a pertinent question." Statement of Marie Harf, Deputy
Spokesperson, Dep't of State (Mar. 4, 2015), available at http://goo.gl/qcsXnA. However, if Mrs. Clinton had
emails regarding, for example, the attacks in Benghazi, Libya, then either the Record Management Branch or NARA
likely needed to be consulted.
12
COA-A118
16
OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT & ARCHIVIST OF THE U.S., NAT'L ARCHIVES &
RECORDS ADMIN., M-14-16, GUIDANCE ON MANAGING EMAIL (2014), available at http://goo.gl/oDOIBS.
17 David Corn, How Hillary May Have Violated Government Rules on Emails, MOTHER JONES (Mar. 3, 2015),
available at http://goo.gl/OLAkhW.
18
Angie Cannon, Probe Turning More to Hillary Clinton D 'amato Refused To Call Her to Testify. The Whitewater
Committee Has Questions For Her Top Aides, PHILLY.COM (June 26, 1995), http://goo.gl/pWKnJd.
19
DEP'TOF STATE, SUMMARY CURRENT STATE OF RECORDS MANAGEMENT AT THE STATE DEPARTMENT at 1 (Mar.
27, 20 12), available at http://goo.gl/jXCv 1u.
20 !d. at 2. SMART operates such that when "Department personnel send cables and record emails, a copy of the
message is automatically sent to the Department's official archive, which is an enterprise-wide electronic
repository." Id at 5.
21 Memorandum from USDEL SECRETARY on Secretary Clinton's September 26, 2009, Meeting with Mexican
Foreign Secretary Espinosa (Oct. 20, 2009), available at http://goo.gl/pEy3Jm; Memorandum from SECSTATE
WASH DC to AMEMBASSY CAIRO on Secretary Clinton's May 28, 2009 Meeting with Egyptian Democracy
Activists (June 2009), available at http://goo.gl/kgcu7m; Memorandum from SECSTATE WASH DC to
AMEMBASSY BAGHDAD on Secretary Clinton's December 12,2011 Meeting with Iraqi Foreign Minister Zebari
(Dec. 2011), available at http://goo.gl/15NTGy.
22
See Memorandum from SECSTATE WASH DC to ALL DIPLOMATIC AND CONSULAR POSTS on
WikiLeaks Working Group Situation Report No. 14 (Dec. 2010), available at http://goo.gl/ZeJIN2.
23 Email from Nora Toiv, Office of the Secretary, Dep't of State to Paul Elliott, TransCanada, Corp. (Nov. 22,
20 I 0), available at http://goo.gl/6MGAZI.
COA-A119
In 2014, DOS-OIG concluded that the Bureau of Conflict and Stabilization Operations
"does not have a uniform process for the storage and organization of files. Files and
records are stored in several locations, including the bureau's network shared drive,
SharePoint document libraries, personal emails, and hard drives." 24 The Bureau also
permitted "[c]ontracting officer's representatives [to] keep emails and other materials on
their personal computers instead of using shared drives or paper files." 25
In 2013, DOS-OIG concluded that in the Bureau of East Asian and Pacific Affairs, the
"staff members store official records variously on personal drives, email folders, shared
drives, and SharePoint. Bureau shared drive folders are not organized in accordance with
Department guidance. " 26
In 2012, DOS-OIG concluded that in the Bureau of Administration, Global Information
Services, Office of Information Programs and Services, "SMART captured 61,156 of an
estimated 15 million record emails in the system that should [have been] captured. The
OIG team noted that confusion among Department employees and, in some cases,
inadequate performance have resulted in an underuse of SMART's record email
function. " 27
These illustrative examples show that far from being an exemplar of proper records management
in the Executive Branch, the State Department has a persistent and dangerous pattern of failing to
comply with federal records laws.
Pursuant to FOIA, Cause of Action hereby requests access to the following records, from
the time period of January 21, 2009 to the present:
1.
2.
All records referring or relating to training regarding the Federal Records Act,
Records Management Handbook, and/or the Foreign Affairs Manual, which
Secretary Clinton attended or completed, or for which her attendance or
completion was required.
All records referring or relating to all electronic devices (including but not limited
to a computer, mobile communications device, or email server) used by Secretary
Clinton, but in the control and possession ofthe U.S. Department of State.
24
DEP'T OF STATE, OFFICE INSPECTOR GEN., INSPECTION OF THE BUREAU OF CONFLICT AND STABILIZATION
OPERATIONS at 20 (Mar. 2014), available at http://goo.gl/pgWsYi (emphasis added).
25
!d. at 25 (emphasis added).
26 DEP'T OF STATE, OFFICE INSPECTOR GEN., INSPECTION OF THE BUREAU OF EAST ASIAN AND PACIFIC AFFAIRS at
26 (Sept. 2013), available at http://goo.gl/JWrMNp (emphasis added).
27
DEP'T OF STATE, OFFICE INSPECTOR GEN., INSPECTION OF THE BUREAU OF ADMINISTRATION, GLOBAL
INFORMATION SERVICES, OFFICE OF INFORMATION PROGRAMS AND SERVICES at 13 (Sept. 20 12), available at
http://goo.gl/5BGRyT
COA-A120
4.
5.
6.
7.
Pursuant to FOIA and State Department regulations, Cause of Action hereby requests
expedited processing ofthis request. 28 One of the bases that qualifies a request for expedited
processing is when the "information is urgently needed by an individual primarily engaged in
disseminating information in order to inform the public concerning actual or alleged Federal
Government activity." 29 A requester urgently needs information when the information relates to
"a breaking news story of general public interest." 30
Former-Secretary Hillary Clinton exclusively using a private email account to conduct
her official State Department activities is "a breaking news story of general public interest."31
This issue also relates to federal government activity, i.e., the State Department's and/or Mrs.
Clinton's potential failures to comply with the records management laws. Further, there are
concerns that Mrs. Clinton may have failed to appropriately segregate classified national security
information in her personal control from other information. Therefore, this request meets the test
for expedited processing.
Request for Public Interest Fee Waiver
Cause of Action requests a public interest waiver of all applicable fees. 32 This provision
provides that agencies shall furnish requested records without or at reduced charge if"disclosure
of the information is in the public interest because it is likely to contribute significantly to public
28
COA-A121
area as well as the intention and ability to disseminate the information to the public").
35
5 U.S.C. 552(a)(4)(A)(ii)(II); 22 C.F.R. 171.15(c).
36
Cause of Action notes that the agency's definition of"representative of the news media" at 22 C.F.R. 171.11(o)
is out of date and in conflict with the current statutory definition.
37
See, e.g., Cause ofAction Launches Online Resource: ExecutiveBranchEarmarks.com, CAUSE OF ACTION (Sept.
8, 20 14), available at http://goo.gl/935qAi; Legal and Political Issues Raised by the Loss of Em ails at the IRS,
CAUSE OF ACTION (July 8, 2014), available at http://goo.gl/PaoEyi; CAUSE OF ACTION, GRADING THE
GOVERNMENT: HOW THE WHITE HOUSE TARGETS DOCUMENT REQUESTERS (Mar. 18, 20 14), available at
http://goo.gl/BiaEaH; see also CAUSE OF ACTION, GREENTECH AUTOMOTIVE: A VENTURE CAPITALIZED BY
CRONYISM (Sept. 23, 2013), available at http://goo.gl/NOxSvs; CAUSE OF ACTION, POLITICAL PROFITEERING: How
FOREST CITY ENTERPRISES MAKES PRIVATE PROFITS AT THE EXPENSE OF AMERICAN TAXPAYERS PART I (Aug. 2,
2013), available at http://goo.gl/GpP1 wR.
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EXECUTIVE DIRECTOR
38
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Ryan Mulvey
From:
Sent:
To:
Subject:
Allan Blutstein
Tuesday, January 14, 2014 9:24 PM
Justin Mallone
Fwd: FOIA Fee Waiver Disposition Reached for EPA-HQ-2014-002346
FYI. Can you please save in the Admin earmarks folder? Thx.
COA-A129
Ryan Mulvey
From:
Sent:
To:
Cc:
Subject:
James Valvo
Tuesday, April 28, 2015 11:40 AM
'Newton, Jonathan'
Hope, Brian
RE: EPA-HQ-2014-002346
Mr. Newton,
Thank you for your response.
When EPA closed Cause of Actions FOIA request on 12/23/14 did it provide a notification to Cause of Action
that it had done so or attempt to contact Cause of Action to obtain a clarification of the scope of the request, as
required by EPAs FOIA regulations? I do not have a record of such notification. If EPA did not do so, is it
EPAs practice to close requests without notifying requestors? I ask because Cause of Action has other FOIA
requests pending with EPA and I would like to ensure that EPA has not inadvertently closed any of them.
Please provide an update on where in the queue Cause of Actions request is and an estimate for a final
determination on the request.
Thank you,
Confidentiality: The information contained in, and attached to, this communication may be confidential, and is intended only for the use
of the recipient named above. If the reader of this message is not the intended recipient, you are hereby notified that any
dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this
communication in error, please re-send this communication to the sender and delete the original message and any copy of it from your
computer system. Thank you.
GoodAfternoonMr.Valvo
AreviewofthefileshowsthatthisrequestwasinadvertentlyclosedonDecember23,2014,becausetheoriginal
requestdidnotreasonablydescribetherecordsbeingsought.
COA-A130
Unfortunately,thatclosuredidnottakeintoaccounttheclarificationprovidedbyMr.SchmidtonMay5,2014.Inlight
ofthatoversightIwillreopenthisrequestandhaveasearchperformedusingtheclarificationthatwasprovided.The
clarificationisasfollows:
Dates:January1,2010toDecember31,2012
WhiteHouseLiaisons
1.WhiteHouseLiaisonJonMonger
2.WhiteHouseLiaisonKelleySmith
3.WhiteHouseLiaisonDanKanninen
4.WhiteHouseLiaisonMarygraceGalston
5.AnyotherWhiteHouseLiaisonduringtheabovetimeperiod.
OfficeofCongressionalandIntergovernmentalRelations(OCIR)
1.AssociateAdministratorLauraVaught
2.DeputyAssociateAdministratorNicholeDistefano
3.DeputyAssociateAdministratorMarkRupp
Searchtermsforaccounts
1.Grant
2.Earmark
3.ARRA
4.Stimulus
5.Reid
ThankyouinadvanceforyourpatienceandyourinterestintheU.S.EnvironmentalProtectionAgency.
JonathanV.Newton,AttorneyAdvisor
U.S.EPA,OfficeoftheExecutiveSecretariat
1200PennsylvaniaAvenue,NW(MC1105A)
Washington,D.C.20460
(202)5646164
From:JamesValvo<james.valvo@causeofaction.org>
Sent:Tuesday,March24,20152:11PM
To:Hope,Brian
Subject:RE:EPAHQ2014002346
Mr. Hope,
I have recently taken over this matter from Kevin Schmidt. This email is the most recent update I have on file
with regard to this FOIA request. Will you please provide me with an update on the status of this
request? Thank you.
Best,
COA-A131
james.valvo@causeofaction.org
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Mr. Hope,
See below. Im inquiring on an update for FOIA request EPA-HQ-2014-002346.
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Theinformationcontainedinthiscommunicationmaybeconfidential,isintendedonlyfortheuseoftherecipientnamedabove,andmaybelegallyprivileged.Itisnot
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COA-A132
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Thesenamesandsearchtermsprovidegreaterclarification,thankyou.
JonathanV.Newton,AttorneyAdvisor
U.S.EPA,OfficeoftheExecutiveSecretariat
1200PennsylvaniaAvenue,NW(MC1105A)
Washington,D.C.20460
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(202)5661981
1.
2.
3.
4.
5.
1.
2.
3.
1.
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5.
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intendedaslegaladvice,andmaynotberelieduponorusedaslegaladvice.Nordoesthiscommunicationestablishanattorneyclientrelationshipbetweenus.Ifthe
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COA-A133
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ThankyouforfollowinguponthisFOIArequest.Pleaseprovideasmuchinformationaspossibletoassistagencystaffin
identifyingtherecordsyouareseeking.
JonathanV.Newton,AttorneyAdvisor
U.S.EPA,OfficeoftheExecutiveSecretariat
1200PennsylvaniaAvenue,NW(MC1105A)
Washington,D.C.20460
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(202)5661981
From:Green,LindaEOnBehalfOfFOIAHQ
Sent:Thursday,April24,20144:04PM
To:Newton,Jonathan
Subject:FW:EPAHQ2014002346
FYI
From: Kevin Schmidt [mailto:kevin.schmidt@causeofaction.org]
Sent: Thursday, April 24, 2014 3:55 PM
To: FOIA HQ
Subject: EPA-HQ-2014-002346
202.499.2414
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COA-A134
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intendedaslegaladvice,andmaynotberelieduponorusedaslegaladvice.Nordoesthiscommunicationestablishanattorneyclientrelationshipbetweenus.Ifthe
readerofthismessageisnottheintendedrecipient,youareherebynotifiedthatanydissemination,distribution,orcopyingofthiscommunication,oranyofits
contents,isstrictlyprohibited.Ifyouhavereceivedthiscommunicationinerror,pleaseresendthiscommunicationtothesenderanddeletetheoriginalmessageand
anycopyofitfromyourcomputersystem.Thankyou.
COA-A135
COA-A136
COA-A137
COA-A138
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2
Memorandum of January 21,2009, and Attorney General Holder's FOIA Guidance
Memorandum of March 19, 2009.
SOL is releasing all documents identified as responsive to your request. With respect to multiple
emails that became part of an email chain, SOL is providing only the last email in the chain that
contains copies of all the earlier emails. Where earlier emails in a chain included attachments not
reflected in the chain, those duplicates have been provided separately. In addition, SOL is not
releasing any attachments to these emails because you specified in your request that you do not
seek the actual records that were forwarded to OWHC.
We do not consider this a denial of your request, but if you do, you have the right to appeal this
decision with the Solicitor of Labor within 90 days of the date of this letter. The appeal must
state, in writing, the grounds for the appeal, including any supporting statement or arguments.
To facilitate processing, you may wish to fax your appeal to (202) 693-5538. If mailed, both the
envelope and the letter of appeal itself should be clearly marked: "Freedom of Information Act
Appeal." The appeal should include a copy of your initial request and a copy of this letter. The
appeal must be addressed to:
Solicitor of Labor
U.S. Department of Labor
Room N-2428
200 Constitution Ave., N. W.
Washington, DC 20210
Appeals also may be submitted by email to foiappeal @dol.gov. Appeals submitted to any other
email address will not be accepted. 29 C.F.R. 70.22(c).
Sincerely,
~~.~
Katherine E. Bissell
Deputy Solicitor for Regional Enforcement
Enclosures
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EXHIBIT 1
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Blvd #700
Arlington, VA 22201
703.87s.862s
For purpose of this request, the term "record" shall mean: (1) any written, printed, or typed material of any kind,
including without limitation aJI correspondence, memoranda, notes, messages, letters, cards, telegrams, teletypes,
facsimiJes, papers, forms, records, telephone messages, diaries, schedules, calendars, chronological data, minutes,
books, reports, chmts, lists, ledgers, invoices, worksheets, receipts, returns, computer printouts, printed matter,
prospectuses, statements, checks, statistics, surveys, affidavits, contracts, agreements, transcripts, magazine or
newspaper articles, or press releases; (2) any electronically, magnetically, or mechanically stored material of any
kind, including without limitation aJI electronic maiJ or e-mail, meaning any electronically transmitted text or
graph ic communication created upon and transmitted or received by any computer or other electronjc device, and all
materials stored on compact disk, computer disk, diskette, hard drive, server, or tape; (3) any audio, aural, visual, or
video records, recordings, or representations of any kind, including without 1imitation all cassette tapes, compact
disks, digital video disks, microfiche, microfilm, motion pictures, pictw-es, photographs, or videotapes; (4) any
graph ic materials and data compilations from which information can be obtained; (5) any materials using other
means of preserving thought or expression; and (6) any tangible things from which data or information can be
obtained, processed, recorded, or transcribed. The term "record" also shall mean any drafts, alterations,
amendments, changes, or modifications of or to any of the foregoing.
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b
2
PRESIDENT BARACK OBAMA, Memorandum for the Heads of Executive Departments and Agencies, Subject:
Freedom ofInformation Act, (Jan. 21, 2009), available at http://www .whitehouse.gov/the-press-office/freedomin formation-act (last visited August 30, 20 ll).
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EXHIBIT 2
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EXHIBIT 3
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EXHIBIT 4
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OCT 0 7 2011
Daniel Epstein
Freedom Through Justice Foundation
2111 Wilson Blvd. #700
Arlington, VA 22201
Re:
FOIA-2011-01431
r
Records pertaining to Guides
Conceming the Use ofEndrosements
and Testimonials in Advertising
Sarah M. Mathias
Associate General Counsel
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EXHIBIT 5
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EXHIBIT 6
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EXHIBIT 7
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EXHIBIT 8
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EXHIBIT 9
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EXHIBIT 10
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EXHIBIT 11
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EXHIBIT 12
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EXHIBIT 13
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EXHIBIT 14
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EXHIBIT 15
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EXHIBIT 16
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Re:
OIP/13-03483 (F)
VRB:LAD:RFO
Vanessa R. Brinkmann
Counsel, Initial Request Staff
Enclosure
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COA-A253
Due to the possible need to consult with the Department of Justice, Federal Trade Commision,
and the United States Postal Service, the CFPB will invoke a 10-day extension for your request,
as allowed by 5 U.S.C. 552(a)(6)(B). If you care to narrow the scope of your request, please
contact our office by the below means.
As it relates to your fee waiver request, your request will be held in abeyance pending the
quantification of responsive records. The CFPB Interim FOIA regulations, set forth six factors to
examine in determining whether the applicable legal standard for a fee waiver has been met: (1)
Whether the subject of the requested records concerns ''the operations or activities of the
government;'' (2) Whether the disclosure is ''likely to contribute'' to an understanding of
government operations or activities; (3) Whether disclosure of the requested information will
contribute to the understanding of the public at large, as opposed to the individual understanding
of the requestor or a narrow segment of interested persons; (4) Whether the contribution to
public understanding of government operations or activities will be ''significant;'' (5) Whether the
requester has a commercial interest that would be furthered by the requested disclosure; and (6)
Whether the magnitude of any identified commercial interest to the requestor is sufficiently large
in comparison with the public interest in disclosure, that disclosure is primarily in the
commercial interest of the requestor. If any responsive records are located, we will consider
these factors in our evaluation of your request for a fee waiver.
You have been determined to be a media requester and provisions of the FOIA allow the CFPB
to recover part of the cost of complying with your request. You will be charged for the
duplication (after the first 100 pages) costs in accordance with the CFPB Interim FOIA
regulations as applicable to media requestors. The CFPBs FOIA Fee Schedule may be viewed
at www.consumerfinance.gov/foia/foia-fee-schedule. You will be contacted in the event there
are fees related to the processing of your request.
For inquiries concerning your request, please contact Maria Gonzalez, at (202) 435-9654 and
reference the FOIA request number above. If you are unable to reach Maria Gonzalez, please
feel free to contact CFPBs FOIA Service Center at FOIA@cfpb.gov or by phone at 1-855-444FOIA (3642).
Sincerely,
Martin Michalosky
FOIA Manager
Operations Division
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Martin Michalosky
FOIA Manager
Operations Division
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December 11,2014
Prashant K. Khetan
Cause of Action
1919 Pennsylvania Avenue, NWSuite 650
Washington, DC 20006
Re:
This lener constitutes the final determination of the Consumer Financial Protection Bureau
regarding your appeal of the Bureau's September 29, 2014 response to Freedom of Information Act
(FOIA) Request No. 2014-303-F (the Request). For the reasons set fonh below, the appeal is
granted and the Request is remanded to the FOIA Office to conduct a new search for documents
responsive to the Request, after you and the FOIA Office have narrowed the request. 1
I.
On September 15, 2014, you subrnined the Request concerning documents regarding
"Operation Choke Point" and the payday lending industry. The request contains three
specifications, seeking records for the period from January 1, 2011 to the present. The specifications
in the Request were as follows:
1. All records regarding Choke Point, third pany payment processors, shon-term
lenders, or payday lenders sent from the CEPB to, or received by the CEPB from,
any other federal agency, including but not limited to the DOJ, the Federal Deposit
Insurance Corporation, the Board of Governors of the Federal Reserve System, the
National Oedit Union Administration, the Office of the Comptroller of the
G.trrency, the Federal Bureau of Investigation, the United States Postal Inspection
Service, the Financial Oimes Enforcement Network, and the Federal Trade
Commission;
2. All records by or between CFPB employees regarding Choke Point, third pany
payment processors, shon-term lenders, or payday lenders, including CFPB's study
of the online payday loan industry; and
The Bureau's FOIA regulations are codified at 12 CF.R 1070.10 et Jeq. Pursuant to these
regulations, the authority to determine FOIA appeals rests with the Bureau's General Counsel or
his/her delegate. See 12 CF.R 1070.21(e). The General Counsel has delegated to me the authority
to determine your appeal of the Bureau's September 29, 2014 response to the Request. This lener
therefore constitutes the Bureau's final response to your appeal.
consumerfinance.gov
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3. All records regarding CFPB 's potential rule making concerning the payday lending
industry, including but not limited to communications by and between CFPB
employees, and any comments and responses to the proposed rule (if one exists).
(footnotes omitted).
On September 29,2014, the Bureau responded to the Request. The Bureau informed you
that, with respect to the first specification, it could neither confirm nor deny the existence of any
responsive records. With respect to the second and third specifications, the Bureau informed you
that a reasonable search was conducted within the Bureau's Office of Research, ?v1arkets, and
Regulations and no responsive records were able to be identified or located at this time. The Bureau
also informed you that no proposed rule exists regarding the payday lending industry.
II.
Appellate Determination
A . Adeqttary of Search
The Bureau has determined that the search for records responsive to the Request was
inadequate. For example, as you have noted, the Bureau has released a white paper on Payday Loans
and Deposit Advance Products/ yet the Bureau's response to the Request did not indicate that the
Bureau has any records relating to that study. Accordingly, the Bureau grants the appeal and
remands the Request to the FOIA Office to oversee a new search for responsive records.
The Bureau notes that some elements of the Request- such as the request for "[a]ll records
by or between CFPB employees regarding ... third party payment processors, shon-term lenders, or
payday lenders"- could be construed quite broadly. "Generally, an agency need not honor a FOIA
request that requires it to conduct and unduly burdensome search." Int'l Counsel Bureau v. U.S. Dep't of
Def., 723 F. Supp. 2d 54, 59 (D.D.C 2010); see also 5 U.S.C 552(a)(3) (providing that a FOIA
request must reasonably describe records requested). Accordingly, on remand, the FOIA Office
should discuss with you appropriate tailoring of the request to avoid an unduly burdensome search.
See Payday Loans and Deposit Advance Products (Apr. 24, 2013),
http:/ I files.consumerfinance.gov/ f/201304 _ cfpb_payday-dap-whitepaper.pdf.
consumerfina nce.gov
available
at
2
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E-..
17(
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ac zn:.::2
confirming or denying the existence of records would itself cause harm cognizable under an FOIA
exception." Marino v. DEA, 685 F.3d 1076, 1079 n.l (D.C Gr. 2012); see also Phillippi v. CIA, 546
F.2d 1009, 1013 (D.C Gr. 1976) (raising question whether the OA could refuse to confirm or deny
its ties to Howard Hughes's submarine retrieval ship, the Glomar Explorer).
Because specification 1 of the Request sought records relating to communications between
the Bureau and certain law enforcement agencies, such as the Department of Justice and Federal
Bureau of Investigation, the Bureau invoked Glomar based on FOIA exemption 7. That exemption
protects:
records or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information (A)
could reasonably be expected to interfere with enforcement proceedings, (B)
would deprive a person of a right to a fair trial or an impartial adjudication,
(Q could reasonably be expected to constitute an unwarranted invasion of
personal privacy, (D) could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or authority or
any private institution which furnished information on a confidential basis,
and, in the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation or by an
agency conducting a lawful national security intelligence investigation,
information furnished by a confidential source, (E) would disclose techniques
and procedures for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention of the law, or
(F) could reasonably be expected to endanger the life or physical safety of any
individua~.]
5 U.S.C 552(b)(7). Accordingly, a Glomar response may be appropriate, for instance, when
disclosure of the fact that an agency is investigating a person or entity could interfere with the
investigation by alerting its subject. 5 ee Cozen 0 'Connor v. U.S. Department of Treast~~y, 570 F. Supp. 2d
749, 788 (E.D. Pa. 2008) ("[D]isclosing that [Treasury] is or is not investigating a non-designated
entity or person would thwart the purpose of the sanctions program and would reveal classified
information, alerting terrorists who could move money before sanctions are imposed or funnel
assets through organizations that are not being investigated."). Similarly, a Glomar response may be
appropriate to protect the Bureau's investigatory techniques and procedures.
A Glomar response must, however, be appropriately cabined. "As to the portion of a FOIA
request which seeks investigative law-enforcement files, the agency may simply 'Glomarize' (i.e.,
refuse to confirm or deny whether such files exist as to the third party)." Burke v. DO], No. 96-1739,
1999 WL 1032814, at >:5 (D.D.C Sept. 30, 1999) (citing E nzjnna v. DO], No. 97-5078, 1997 WL
404327 (D.C Gr. June 30, 1997); 1 ation Magazine TJ. U.S. Customs Service, 71 F .3d 885 (D.C Gr.
1995)). But "[w]hen a FOIA request seeks more than just law-enforcement files, ... the agency must
take a 'bifurcated' approach." Id. In other words, "as to the portion of the request seeking files other
than investigative law enforcement files, ... the agency must demonstrate that it conducted an
consumerfinance .gov
COA-A262
adequate search and properly withheld information from the third-party document to protect their
privacy." lei.
2. Appropriatene..-s of Glomar Respome
If you are dissatisfied with the Bureau's final appellate determination, you may contact the
Office of Government Information Services (OGIS), which offers mediation services to resolve
disputes between FOIA requesters and Federal agencies pursuant to 5 U.S.C 552(h)(3). Using
OGIS services does not affect your right to pursue litigation. Under 5 U.S. C 552(a)(4)(B), you may
also seek judicial review of this appeal denial in the United States D istrict Coun where you reside, in
the district where the documents are located, or in the District of Columbia.
ohn R Coleman
Assistant General Counsel for Litigation
Legal Division
Consumer Financial Protection Bureau
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