Letter & Exhibits - FOIA Failures

May 19, 2015 VIA E-MAIL Hon. Jason Chaffetz, Chairman Committee on Oversight & Government Reform U.S. House of Representatives 2157 Rayburn House Office Building Washington, D.C. 20515-6143 E-mail: [email protected]

Re: Response to May 8, 2015 Letter – Obstacles with FOIA

Dear Chairman Chaffetz:

I write on behalf of Cause of Action, a non-profit, nonpartisan strategic oversight group committed to ensuring that the regulatory process is transparent, fair, and accountable.1 Cause of Action uses various investigative and legal tools to educate the public about the importance of government transparency and accountability, including the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”).

While Cause of Action has filed hundreds of FOIA requests and dozens of lawsuits against

the federal bureaucracy,2 our vigilant advocacy for greater transparency does not take for granted the enormous power that the law provides to citizens and interest groups to hold their government accountable. As congressional oversight scholars like Duke University law professor Mathew McCubbins have argued, statutes, like FOIA, which provide members of the public with judicial review of agency infractions against them, reflect Congress’s preferred form of oversight: empowering whistleblowers, constituents, and interest groups to engage in citizen oversight and to share information with their elected representatives.3 For these scholars, agency violations of FOIA

1 CAUSE OF ACTION, http://www.causeofaction.org (last visited May 12, 2015). 2 Since Cause of Action was founded in 2011, it has filed over 250 FOIA requests seeking records and information from over 75 different Federal agencies. In 2014 alone, Cause of Action’s lawyers and investigators filed nearly 100 FOIA requests on a myriad of topics of pressing public concern. Of the nearly 100 FOIA requests filed by Cause of Action in 2014, approximately fifteen (15) of them resulted in agency production(s) of responsive documents, eleven (11) were closed as having “no responsive records,” sixty-two (62) have been acknowledged but are still pending or in litigation, and five (5) resulted in a failure of the agency to respond or a refusal to comply due to “Glomar,” an “unreasonable description” of records sought, or some alleged administrative flaw. In only a limited number of instances did agencies produce further records on appeal or overturn initial determinations about fee status or public interest fee waivers. Cause of Action is currently a party litigant in six (6) separate FOIA lawsuits pending in federal courts at the district and appellate levels. These six lawsuits involve eighteen (18) separate FOIA requests filed with sixteen (16) agencies. (All of these numbers are approximations as of a certain date, as the status of Cause of Action’s pending FOIA requests change on a regular basis.) 3 See generally Matthew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols versus Fire Alarms, 28 AMER. J. POL. SCI. 165 (1984).

constitute infractions against Congress. I am therefore humbled by the invitation to share Cause of Action’s perspective on the obstacles it has faced when attempting to access agency records pursuant to FOIA.

Cause of Action has experienced unwarranted delays,4 unreasonable searches,5 excessive

redactions,6 and inappropriate invocations of exemptions/exclusions/other purported privileges;7 the Appendix attached herein provides the administrative record for these and other such obstacles imposed by agencies. However, I want to focus the Committee’s attention on two novel problems in the FOIA process that raise issues central to divided government: “White House Equities”8 and the intentional imposition of fees to foreclose access to records by politically disfavored interest groups or media organizations.9 I. The White House’s Cooptation of FOIA is Both Unconstitutional and a Statutory

Violation of FOIA. On April 15, 2009, then-White House Counsel Gregory Craig sent a memorandum to all

Executive Department and Agency General Counsels reminding them that “executive agencies should consult with the White House Counsel’s Office on all document requests that may involve documents with White House equities” (the “Craig Memo”).10 The Craig Memo applied to “all documents and records, whether in oral, paper, or electronic form, that relate to communications to and from the White House, including preparations for such communications.”11 Although the White House has never made the Craig Memo public,12 in 2011, during a hearing you chaired on politicization of FOIA at the Department of Homeland Security, you became the first person to uncover and publicly question the practice of White House equities: 4 See Exhibit 1, CoA Bates No. COA-1001 – COA-1005 (Cent. Intelligence Agency Request No. F-2013-01843 (May 30, 2013)) (delay of approximately two years). 5 Id. at COA-1006 – COA-1011 (Dep’t of Justice Request No. OIP/13-04722(F) (Aug. 13, 2013)) (agency failed to produce responsive document until Cause of Action specifically identified document); id. at COA-1012 – COA-1025 (Consumer Fin. Prot. Bureau Request No. 2014-303-F (Sept. 15, 2014)) (appeal granted on adequacy of search where agency failed to identify or produce publicly-available responsive document). 6 Id. at COA-1026 – COA-1030 (Dep’t of Ed. Request No. 14-00274-F (Nov. 26, 2013)) (excessive redactions under Exemption 5, in conjunction with the deliberative process privilege, including full-page redactions); id. at COA-1031 – COA-1053 (Dep’t of Commerce Request No. OS-2014-001642 (Nov. 26, 2013)) (withholding all responsive records under Exemption 5, in conjunction with the deliberative process, attorney-client, and attorney work-product privileges). 7 Id. at COA-1054 – COA-1065 (Fed. Trade Comm’n Request No. 2014-01217 (July 25, 2014)) (using non-agency records designation to exclude attachments to communications from Congress); id. at COA-1066 – COA-1098 (Fed. Trade Comm’n Request No. 2015-00110 (Oct. 30, 2014)) (using Speech or Debate Clause and extensive withholdings under Exemption 5, in conjunction with the deliberative process privilege). 8 Mark J. Rozell & Daniel Z. Epstein, White House Equities: The New Executive Privilege, 45 PRESIDENTIAL STUD. Q. 382 (2015). 9 See generally “Potential Reforms to the Freedom of Information Act (FOIA)”: Hearing before the H. Comm. on Oversight & Gov’t Reform, 114th Cong. (Feb. 27, 2015) (statement of Daniel Z. Epstein), available at http://causeofaction.org/assets/uploads/2015/05/Statement-for-the-Record_FOIA_Daniel-Z-Epstein.pdf. 10 Memorandum for All Executive Department and Agency General Counsels (Apr. 15, 2009), available at http://causeofaction.org/assets/uploads/2013/06/White-House-memo-equities.pdf. 11 Id. (emphasis added). 12 See Presidential Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act, 74 Fed. Reg. 4683 (Jan. 21, 2009), available at http://goo.gl/N9EJtL.

Hon. Jason Chaffetz May 19, 2015 Page 2

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.13

As this testimony revealed, although the Craig Memo purportedly governed only

records relating to communications to or from the White House, the fact that, at one agency, any request for documents about stimulus spending was subject to White House review reveals the extent to which the “White House Equities” policy could be abused in ways harmful to transparency. The White House Equities Policy is Unconstitutional

At times, Executive Branch agencies obtain access to records from the other constitutional branches, including the federal courts and Congress, as well as from the Office of the President.14 Records of Congress, the President, and the judicial branch are not subject to 13 Why isn’t the Department of Homeland Security Meeting the President’s Standard on FOIA?: Hearing Before the H. Comm. on Oversight & Gov’t Reform, 112th Cong. (2011) (emphasis added), available at http://goo.gl/Sup5WF. 14 Extending beyond the established practice of consulting prior to the release of “White House-originated records,” the Craig Memo ostensibly requires consultation on all requests of interest to the President. See Exhibit 2, CoA Bates No. COA-2001 (Request OS-2012-00080 (Dec. 14, 2012)) (regarding e-mails from the Department of the Interior where “criticism of GOP-opposition to the Obama Administration” warranted White House review); id. at COA-2004 (Dep’t of Treasury Request 2007-02-004 (Apr. 18, 2012)) (regarding records created by the President before his election); id. at COA-2005 – COA-2006 (Dep’t of Health & Human Servs. Request 2011-0756KG (Oct. 18, 2011)) and (Dep’t of Energy Request HQ-2012-01643-F (Jan. 11, 2013)) (where there were no responsive records); id. at COA-2007 (Dep’t of Def. Request 10-F-0642 (June 19, 2012)) (regarding records without “equities”); id. at COA-2008 (E-mail from Seth Greenfeld, Dep’t of Interior, to Jonathan Su, White House Counsel (Apr. 12, 2013)) (regarding records from the General Services Administration concerning a controversial bathroom renovation).


FOIA.15 When these records are obtained by an Executive Branch agency and are requested through FOIA, the agency either (1) consults with the non-agency owner of the record (who has the “equity”) to determine whether that entity seeks to maintain its equities (ownership or control) over portions of the record, or (2) determines that the record is excluded from FOIA because it is not an agency record properly within the ownership or control of the FOIA-subject entity.

However, for the White House to review a record in the ownership and control of a federal agency (for instance, Department of Homeland Security records on stimulus spending), and/or to instruct that agency on the applicability or appropriateness of withholdings, redactions, exemptions and the like, suddenly removes the record from agency control and places it into the control of the President, who, while not subject to FOIA, is nevertheless able to regulate what the public (and Congress) is able to access about its government.16 This abuse of Presidential power strikes at the heart of the Constitution’s separation of powers.17 The White House Equities Policy Violates the FOIA Statute

The applicability of the Craig Memo has resulted in significant delay. Cause of Action’s investigation reveals that delays of months and, at times, years, has resulted from White House review of requests.18 White House consultation also has resulted in delays in the processing of administrative appeals – including one pending for six years19 – and productions scheduled as part of litigation.20 Because White House review of agency records creates unauthorized delay, agencies subject to such review necessarily violate the statutory requirement under FOIA, 5 U.S.C. § 552(a)(3), which requires an agency to make records “promptly available to any person” who makes a request for those records.21 15 5 U.S.C. §§ 552 (a)(1), (f)(1). 16 The involvement of the White House in the release of records is highlighted by an e-mail from former Office of Management and Budget (“OMB”) General Counsel Preeta Bansal, who reached out to over forty other agencies to highlight the need for coordinated White House review of a request from Politico implicating records of ethics waivers. See Ex. 2, CoA Bates No. COA-2010 (E-mail from Preeta Bansal, Gen. Counsel, Office of Mgmt. & Budget (Aug. 6, 2009)); see also id. at COA-2012 – COA-2013 (E-mails between Thomas Hitter, Office of Mgmt. & Budget, to Jonathan Su, White House Counsel, showing OMB sought White House clearance on Judicial Watch request concerning “health care legislation”); id. at COA-2014 (Dep’t of Def. Request 10-F-0716 (Oct. 6, 2011)) (Department of Defense apologized for releasing records prematurely). 17 One particularly pernicious aspect of “White House equities” review is the targeting of media requesters – an expansion of internal “sensitive review” processes. See, e.g., Cause of Action, FOIA Follies: HUD Flags Sensitive Freedom of Information Act Requests for Extra Scrutiny; Political Appointees Involved (July 31, 2013), http://causeofaction.org/hud-flags-sensitive-freedom-of-information-act-requests-for-extra-scrutiny-political-appointees-involved/; Cause of Action, White House and Treasury Department Politicize FOIA (June 24, 2013), http://causeofaction.org/white-house-and-treasury-department-politicize-foia/. 18 See Ex. 2, CoA Bates No. COA-2016 (Dep’t Homeland Sec. Requests 12-0066, 12-0260, 12-0297 (Aug. 14, 2012)) (showing White House delays of nearly six months); id. at COA-2018 – COA-2021 (Dep’t of Justice Request AG/10-R0095 (Sept. 23, 2013) & FOIA log, and Dep’t of Justice Request DAG/09-R1005 (Sept. 25, 20113) & FOIA log)) (evidencing four year delay to coordinate with White House). 19 See id. at COA-2022 (E-mails between Dep’t of Def. and Mike Gottlieb, White House Counsel). 20 See id. at COA-2025 (E-mails concerning Dep’t of State production in FOIA lawsuit (Apr. 1-4, 2014)). 21 See, e.g., CAUSE OF ACTION, GRADING THE GOVERNMENT: HOW THE WHITE HOUSE TARGETS DOCUMENT REQUESTERS (Mar. 18, 2014), available at http://causeofaction.org/assets/uploads/2014/03/Sunshine-Week-Project-


II. The Intentional Imposition of Fees to Foreclose Access to Records May Chill Political Speech. By playing with fee category determinations and public interest fee waivers, agencies

have crippled transparency and obstructed accountability by rewarding friends and punishing critics. Cause of Action’s litigation against the Federal Trade Commission (“FTC”) illustrates this politicization of FOIA fee issues.22

On January 13, 2015, Cause of Action, supported by numerous amici from the

transparency community, argued before the United States Court of Appeals for the District of Columbia Circuit that the FTC improperly denied Cause of Action a public interest fee waiver and treatment as a news media requester.23 The litigation arose out of a number of FOIA requests filed by Cause of Action with the FTC between 2011 and 2012 that sought information on the FTC’s new regulations pertaining to social media authors, which Cause of Action asserted “put restrictions on the commercial speech of bloggers.”24

Despite this effort, the FTC continuously denied Cause of Action any sort of fee waiver

and refused to recognize it as a news media requestor. In contrast, at the same time, the FTC granted fee waivers to a myriad of other nonprofit organizations, such as the AFL-CIO, the Environmental Defense Fund, and the Marin Institute.25 Such unequal treatment can reasonably be understood as an effort to chill criticism from those opposed to FTC’s regulations.26 As Senator Patrick Leahy once noted:

[E]xperience suggests that agencies are most resistant to granting fee waivers when they suspect that the information sought may cast them in a less than flattering light or may lead to proposals to reform their practices. Yet that is precisely the type of information which the FOIA is supposed to disclose, and agencies should not be allowed to use fees as an offensive weapon against requesters seeking access to Government information[.]27

FINAL2.pdf; see also Letter from Cause of Action and 23 Transparency Community Organizations to President Barack Obama (Sept. 29, 2014) (requesting withdrawal of Craig Memo or further guidance), available at http://goo.gl/2Q3klT. 22 See generally Press Release, Cause of Action Challenges FTC in Court for Obstructing Transparency (Jan. 13, 2015), available at http://causeofaction.org/cause-action-challenges-ftc-court-obstructing-transparency/. 23 CJ Ciaramella, Watchdog Group Appeals Government’s Definition of Media, FREE BEACON (Jan. 15, 2015), http://goo.gl/r7gXLi. 24 See Exhibit 3, CoA Bates No. COA-3001 – COA-3013 (Complaint, Cause of Action v. Fed. Trade Comm’n, No. 12-850, 2013 U.S. Dist. LEXIS 116791); see also Appendix at COA-A159 – COA-A243 (administrative record for FTC Requests Nos. 2011-01431, 2012-00227, 2012-00687 (Aug. 30, 2011)). 25 CJ Ciaramella, FOIA Follies: Watchdog group sues Federal Trade Commission over FOIA denials, FREE BEACON (May 25, 2012), available at http://goo.gl/v0Iuen; see also, e.g., Ex. 3, CoA Bates No. COA-3014 – COA-3024 (letters granting public interest fee waiver and original FTC Requests Nos. 2009-00778, 2011-00255, 2010-00529). 26 These issues with fee waiver and fee category determinations are not unique to the FTC. See, e.g., Michael Bastasch, EPA makes information requests more difficult for conservatives, DAILY CALLER (May 14, 2013), http://goo.gl/4oeZw1. 27 132 Cong. Rec. S14298 (daily ed. Sept. 29-30, 1986) (statement of Sen. Leahy).


III. Conclusion

Thank you for the opportunity to share the results of Cause of Action’s investigations in the hope of ensuring greater transparency and accountability. If we can provide any additional information, please feel free to contact me at (202) 499-4232.

Sincerely,

___________________________ DANIEL Z. EPSTEIN EXECUTIVE DIRECTOR

cc: Rep. Elijah E. Cummings Ranking Minority Member

EXHIBIT 1

COA-1001

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U.S. Department of Justice Office of Information Policy Suite 11050

1425 New York Avenue, NW

Washington, DC 20530-0001

Telephone: (202) 514-3642

August 29, 2013 Ms. Robyn Burrows Cause of Action Suite 650 1919 Pennsylvania Avenue, NW Washington, DC 20006 Re: OIP/13-03483 (F) [email protected] VRB:LAD:RFO Dear Ms. Burrows: This responds to your Freedom of Information Act (FOIA) request dated May 30, 2013, and received in this Office on June 4, 2013, for all memoranda subsequent to the Webster L. Hubbell memorandum dated November 3, 1993, that were authored by the Department of Justice or the White House addressing the referral of agency documents to the White House in response to any document request. This response is made on behalf of the Office of Information Policy. Please be advised that a search has been conducted in the Office of Information Policy and one document, totaling one page, was located that is responsive to your request. I have determined that this document is appropriate for release without excision, and a copy is enclosed.

For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. 552(c) (2006 & Supp. IV 2010). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist.

If you are not satisfied with my response to this request, you may administratively appeal by writing to the Director, Office of Information Policy, United States Department of Justice, Suite 11050, 1425 New York Avenue, NW, Washington, DC 20530-0001, or you may submit an appeal through this Office’s eFOIA portal at http://www.justice.gov/oip/efoia-portal.html. Your appeal must be received within sixty days from the date of this letter. If you submit your appeal by mail, both the letter and the envelope should be clearly marked “Freedom of Information Act Appeal.” Sincerely,

Vanessa R. Brinkmann Counsel, Initial Request StaffEnclosure

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RE: FOIA Request #CFPB-2014-303-F September 15, 2014 Mr. Josh Schopf Cause of Action 1919 Pennsylvania Avenue, N.W. Suite 650 Washington, D.C. 20006 Dear Mr. Schopf: This letter is to inform you that on September 15, 2014, the Consumer Financial Protection Bureau (CFPB) received your Freedom of Information Act (FOIA) request dated September 15, 2014. Your request sought all communications from January 1, 2011 to present including:

1. All records regarding Choke Point, third party payment processors, short-term lenders, or payday lenders sent from the CFPB to, or received by the CFPB 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 Credit Union Administration the Office of the Comptroller of the Currency, the Federal Bureau of Investigation, the United States Postal Inspection Service, the Financial Crimes Enforcement Network, and the Federal Trade Commission;

2. All records by or between CFPB employees regarding Choke Point, third party payment processors, short-term lenders, or payday lenders, including CFPB's study of the online payday loan industry; and

3. All records regarding CFPB's potential rulemaking 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).

In accordance with Section 1070.17 of the CFPB FOIA regulations, 12 C.F.R. Part 1070, the Bureau generally processes FOIA requests according to their order of receipt. Although the CFPB’s goal is to respond within 20 business days of receipt of your request, the FOIA does permit a 10-day extension of this time period for unusual circumstances. Unusual circumstances include the need to search for and collect records from separate CFPB officers; the need to search for, collect, and examine a voluminous amount of records “demanded in a single request”; and the need to consult with another agency or two or more agency components.

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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 CFPB’s 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 CFPB’s FOIA Service Center at [email protected] or by phone at 1-855-444-FOIA (3642). Sincerely,

Martin Michalosky FOIA Manager Operations Division

COA-1016

RE: FOIA Request #CFPB-2014-303-F September 29, 2014 Josh Schopf Cause of Action 1919 Pennsylvania Avenue, NW Suite 650 Washington, District of Columbia 20006 Dear Mr. Schopf: This letter is in final response to your Freedom of Information Act (FOIA) request dated September 15, 2014. Your request sought all communications via e-mail, text, or facsimile from January 1, 2011 to the present concerning:

1. All records regarding Choke Point, third party payment processors, short-term lenders, or payday lenders sent from the CFPB to, or received by the CFPB 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 Credit Union Administration the Office of the Comptroller of the Currency, the Federal Bureau of Investigation, the United States Postal Inspection Service, the Financial Crimes Enforcement Network, and the Federal Trade Commission;

2. All records by or between CFPB employees regarding Choke Point, third party payment processors, short-term lenders, or payday lenders, including CFPB's study of the online payday loan industry; and

3. All records regarding CFPB's potential rulemaking 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).

Regarding item 1, please be advised that I can neither confirm nor deny the existence of any records responsive to your FOIA request. Regarding items 2 and 3, we conducted a reasonable search within our Office of Research, Markets, & Regulations (RMR) for records that would be responsive to your request. Unfortunately, we were unable to identify or locate any responsive records at this time. Please be advised that no proposed rule exists regarding the payday lending industry. If you so choose, you may file an appeal of this determination within 45 calendar days from the date of this letter. Your appeal must be in writing, signed by you or your representative, and should contain the rationale for the appeal. You may send your appeal via the mail (address below), email ([email protected]) or fax (1-855-FAX-FOIA (329-3642)).

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Your appeal should be addressed to:

Consumer Financial Protection Bureau

Chief FOIA Officer Freedom of Information Appeal

1700 G Street, NW Washington, D.C. 20552

For questions concerning our response, please feel free to contact CFPB’s FOIA Service Center by email at [email protected] or by telephone at 1-855-444-FOIA (3642). Sincerely,

Martin Michalosky FOIA Manager Operations Division

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Prashant K. Khetan Cause of Action

December 11,2014

1919 Pennsylvania Avenue, NWSuite 650 Washington, DC 20006

Re: Final Determination Granting FOIA Appeal No. 2014-303-F

Dear Mr. Khetan:

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. Background: FOIA Request No. 2014-303-F

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

1 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 1

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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 .

.B. Glomar Response

1. Legal Framework }or the Bttreatt j · Respome

In your appeal, you indicate that "CFPB failed to provide any suppon for the notion that [a Glomar] response is appropriate by an agency like CFPB" and that "an agency must explain why it can neither confirm nor deny the existence of responsive records." It is appropriate for the Bureau, under certain circumstances, to issue a Glomar response. Although as a "general rule ... agencies must acknowledge the existence of information responsive to a FOIA request and provide specific, non-conclusory justifications for withholding that information," agencies may refuse to confirm or deny the existence of responsive records, a response known as a Glomar response, "when

2 See Payday Loans and Deposit Advance Products (Apr. 24, 2013), available at http:/ I files.consumerfinance.gov/ f/201304 _ cfpb _payday-dap-whitepaper.pdf.

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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

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 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

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adequate search and properly withheld information from the third-party document to protect their privacy." lei.

2. Appropriatene..-s of Glomar Respome

Because specification 1 of the Request sought records relating to communications between the Bureau and certain law enforcement agencies, it is possible that records responsive to specification 1 could "reasonably be expected to interfere with enforcement proceedings" or "reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C § 552(b)(7). Since the Bureau is remanding the Request to the FOIA Office, the FOIA Office may wish to reconsider whether a Glomar response was appropriate with respect to specification 1. Funher, the FOIA Office should ensure that an appropriately bifurcated search was conducted for other files that may be responsive to specification 1.

* * 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 District Coun where you reside, in the district where the documents are located, or in the District of Columbia.

consume rfina nce.gov

ohn R Coleman Assistant General Counsel for Litigation Legal Division Consumer Financial Protection Bureau

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Moira Smith Cause of Action

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF MANAGEMENT

Privacy, Information and Records Management Services

June 27, 2014

1919 Pennsylvania Avenue Washington, DC 20006

RE: FOIA Request No. 14-00274-F

Dear Mrs. Smith:

This is a final response to your request dated November 26, 2013, requesting information pursuant to the Freedom oflnformation Act (FOIA), 5 U.S.C. § 552. Your request was received in the FOIA Service Center (FSC) on November 27, 2013, and was forwarded to the appropriate office within the Department of Education (the Department) for any responsive documents they may have.

You requested all communications between (1) The Office of White House Counsel and the Department of Education Office of Privacy, Information, and Records Management Services, and (2) The Office of White House Counsel and the Department of Education Office of the General Counsel, concerning the Office of White House Counsel's review of agency records. The time period for this request is January 1, 2012 to the present.

On December 3, 2013, we clarified that you were seeking communications (as described in your FOIA request) regarding FOIA requests that implicate White House equities. On December 17, 2013, you clarified that the request was broader than the White House's participation in FOIA and that you were seeking any instances where the Department of Education consulted with the White House in response to any document request.

Enclosed with this letter is a CD containing 57 pages of documents responsive to your request. However, certain information has been withheld according to the FOIA exemptions specified below:

• Records or portions of records relating to pre-decisional internal communications have been withheld pursuant to 5 U.S.C. § 552 (b)(5) of the FOIA. These provisions require us to withhold the government's deliberative process privilege, inter alia, protecting records of pre-decisional internal communications reflecting the views or recommendations of agency employees in connection with the government policy or legal matters that are both pre-decisional and deliberative in nature.

• Records or portions of records relating to personal information is exempt pursuant to 5 U.S.C. § 552 (b)(6) ofthe FOIA. Disclosure ofthis information would constitute a clearly unwarranted invasion of personal privacy.

• Information located within the documents that is unrelated to your request has been withheld and annotated as "non-responsive."

400 MARYLAND AVE., S.W., WASHINGTON, DC 20202-4500 www.ed.gov

Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation. COA-1029

Mrs. Moira Smith FOIA Request 14-00274-F

Provisions of the FOIA allow us to recover the costs pertaining to your request. The Department has concluded that you fall within the category of"media requester." However, the Department has provided you with this information at no charge. The Department's release of this information at no cost does not constitute the grant of a fee waiver, and does not infer or imply that you will be granted a fee waiver for future requests made under FOIA to the Department.

You have the right to appeal the FOIA exemption(s) decision by writing to the address below, 35 days from the date of this letter. Your appeal should be accompanied by a copy of your initial letter of request and this denial letter, and should contain any evidence or argument you wish the Department to consider in making an administrative determination on your appeal.

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 [email protected].

Enclosure

Sincerely,

Arthur Caliguiran FOIA Public Liaison FOIA Service Center

400 MARYLAND AVE., S.W., WASHINGTON, DC 20202-4500 www.ed.gov

Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation. COA-1030

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July 25, 2014 Mr. Robyn Burrows Counsel Cause of Action 1919 Pennsylvania Ave, NW Suite 650 Washington, DC 20006 RE: Freedom of Information Act Request DOC-OD-2014-000204 Dear Mr. Burrows: This is in final response to your Freedom of Information Act (FOIA) request dated November 26, 2013 requesting records reflecting all communications between (1) The Office of White House Counsel and the U.S. Department of Commerce (DOC) Office of Privacy and Open Government, and (2) The Office of White House Counsel and the DOC Office of the General Counsel, concerning the Office of White House Counsel’s review of agency records. The time period for this request is January 1, 2012 to the present. The responsive documents located in response to your FOIA request are being withheld in their entirety pursuant to 5 U.S.C. § 552. Eight documents are being withheld pursuant to 5 U.S.C. § 552 (b)(5), which protects information that is inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency. The privileges being used are the attorney-client privilege and the deliberative process privilege. Twenty-one documents are being withheld pursuant to (b)(5) and (b)(6). The privileges being used are the attorney-client privilege and the deliberative process privilege. The exemption (b)(6) protects personal privacy information. In addition, there is one document that is being withheld in its entirety pursuant to all three privileges, the attorney-client privilege, the deliberative process privilege and the attorney work-product privilege. You have the right to appeal this denial of the FOIA request. An appeal must be received within 30 calendar days of the date of this response letter by the Assistant General Counsel for Administration (Office), Room 5898-C, U.S. Department of Commerce, 14th and Constitution Avenue, N.W., Washington, D.C. 20230. Your appeal may also be sent by e-mail to [email protected], by facsimile (fax) to 202-482-2552, or by FOIAonline, if you have an account in FOIAonline, at https://foiaonline.regulations.gov/foia/action/public/home#. The appeal must include a copy of the original request, this response to the request and a statement of the reason why the withheld records should be made available and why denial of the records was in error. The submission (including e-mail, fax, and FOIAonline submissions) is not complete without the required attachments. The appeal letter, the envelope, the e-mail

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-2- subject 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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March 12, 2015

VIA E-MAIL Mr. Jonathan E. Nuechterlein General Counsel Office of the General Counsel Federal Trade Commission 600 Pennsylvania Avenue, N.W. Washington, D.C. 20580 E-mail: [email protected]

Re: Freedom of Information Act Appeal: FOIA No. 2015–00110 Dear Mr. Nuechterlein: This is a timely administrative appeal of the Federal Trade Commission’s (“FTC”) February 10, 2015 “second and final” determination letter and redaction of documents in response to Cause of Action’s October 30, 2014 Freedom of Information Act (“FOIA”) request for documents in connection with the matter captioned In re: LabMD, Inc., FTC Docket No. 9357. Cause of Action is appealing those redactions.1

Procedural Background

On October 30, 2014, Cause of Action submitted a FOIA request requesting “access to all documents (including, but not limited to, communications via e-mail, text, or facsimile): (1) regarding Margaret (or Maggie) Lassack or Alain Sheer; and (2) reflecting communications (including, but not limited to, via e-mail, text, or facsimile) with the United States House of Representatives Committee on Oversight and Government Reform regarding the matter captioned In re: LabMD, Inc., FTC Docket No. 9357.”2 On November 20, 2014, FTC denied “[Cause of Action’s] request for news media status because we have determined that Cause of Action is a ‘commercial use’ requester” under 16 C.F.R. § 4(b)(l).3 On December 19, 2014, Cause of Action filed a timely appeal of FTC’s denial of news media requester status and determination of Cause of

1 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 Comm’n, at 1 (Oct. 30, 2014) (attached as Ex. 1). 3 Letter from Sarah Mackey, Assoc. Gen. Counsel, Fed. Trade Comm’n, to Cause of Action (Nov. 20, 2014) (on file with Cause of Action).

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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

FTC’s 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 FTC’s 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. Dep’t 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, FTC’s 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 Dep’t 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. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

Here, the second item of Cause of Action’s 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 FTC’s 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). 5 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 Action’s 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).

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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 Commission’s or a commissioner’s 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. Dep’t of State, 636 F.2d 600, 605 (D.C. Cir. 1980). Here, FTC’s 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 Action’s 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. Dep’t 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, FTC’s 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 Servicemen’s 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 FTC’s 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, FTC’s position.

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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 FTC’s 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 Action’s 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. Dep’t of Commerce, 337 F. Supp. 2d 146, 181 (D.D.C. 2004) (citations omitted).

Conclusion

FTC’s 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 [email protected] if you have any questions. Thank you for your consideration of this matter.

___________________________ PRASHANT K. KHETAN CHIEF COUNSEL

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EXHIBIT 2

8/22113 DEPARTMENT OF THE INTERIOR Mail· Fv.d: \Nhile House Equities in FOIA Request OS-2012-00080

Keable. Edward <[email protected]>

Fwd: White House Equities in FOIA Request 0 -8 .. 2012-00080 1 message

t<eable, Edward io: "Dominguez. Daniel"

- Forwarded message ---From: Keable, Edward <[email protected]> Date: Sat. Dec 15, 2012 at 2:22PM Subject: Fwd: White House Equities in FOIA Request To: "Green, Jason"

Jason,

Sat, Apr 13, 2013 at 1:30PM

This is the third FOIA DOl has with WH equities I referred to in my email to you earlier this week. We are releasin some documents res to this that do not hal.€ WH . Not sure of the \()IUme.

Let me know if you any questions on this one or the two that I made reference to last week.

Thanks,

Ed

--- Forwarded message ----From: Clarice Julka <[email protected]> Date: Fri, Dec 14, 2012 at 1:57PM Subject: White House Equities in FOIA Request OS-2012-00080 To: Edward Keable <[email protected].> Cc: Richard Ha <[email protected],gov.>

Hi Ed,

We are releasing a partial response to the FOIA request (2012-00080). Richard Ha, the FOIA processor, who relliewed this one, prepared the below summary. Attached to this email are the six files containing the WH equities.

Clarice

On December 5, 2011, Buster Johnson, Chairman of the Mohave County Board of Supel\isors, sent a FOIA requesting seeking "[a]ll email records archived and retained by the DOl from or to the [54 listed] indi\4dual email addresses dating from January 1, 2009 to the date of this letter and using the word 'withdrawal' in connection with the words 'Arizona, uranium or Grand Canyon.' .. _This request should be interpreted to include all attachments as well."

In response, the DOl OS FOIA office located and organized responsive electronic mail from 42 indi\4duals into 42 pdf files, one pdf file for each indi\1dual. Six pdf files had joint DOl-White House records that could be interpreted

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8.122/13 DEPARTMENT OF IHffi Milil· F'Mi: White House Eq llitieS in f:OIA Request OS-2012·00000

as White House equities. These six pdf files either had electronic mctill sent to, from, or cc'ed White House officials: or had some discussion of White House activities,

has electronic mall from and to Office of Science and Technology Policy. Executive

on uranium withdrawal. preparation notes with White House officials.

Edward T. Keable Deputy Solicitor-General Law Office of the Solicitor U.S. Department of the Interior Phone: 202·208--4423 Fax: 202-208-5584 edward.l<[email protected]

and

This e-mail (including attachments) is intended for the use of the individual or entity to vmich it is addressed. It may contain information that is privileged. confidential, or othem1se protected by applicable law. If you are not the intended recipient, you are hereby notified that any dissemination, distribution. copying or use of this e-mail or its contents Is strictly prohibited. If you receive this e-mail in error, please notify the sender immediately and destroy alf copies. Thank you.

Edward T. Keable Deputy Solicitor-General Law Office of the Solicitor U.S. Oepartrnentofthe Interior Phone: 202-208-4423 Fax: 202-208-5584 edward [email protected] .gov

This e-mail (including attachments) is intended for tl1e use of the individual or entity to 11.-hich it is addressed. It may contaiiJ. irlformation that is privileged. confidential. or other'lvise protected by applicable law. If you are not the intended recipient, 'j0$1' hereby notified that any dissemination, distribution. copying or use of this e-mail or its contents is strictly prohibited. If you i.ijceive tllis e-mail in error, please notify the sender immediately and destroy all copies. Thank you.

6 attachments

https:!/rnail.goog le.com'lleH/bi185AtiO/?ui=2&ik=c 76d12958b&\iev.=pt&as_to= Daniel_J _Domng uez%4!Mho.aop.gooJ'Io2C&as_subset=all&as _date=tod3}&as _ w.. . 213 COA-2002

DEPARTMENT OF THE INTERIOR • FYo<.1' White I louse Equities in FOIA Request 05-2012·00000

hl1ps::/mall.google.c01l'Vrmitft)'l85'u'QI?IJ1"'2&•k-c76d 12958b&-.1ew=p!&as_to=Dnniel_J __ Dorringuez%4CM.ho.eop.gov%2C&a:. subset=all&as_dale"'loda)&as_v... 3fJ

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White White House

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RE: FOIA

Su, Jonathan To: Seth Greenfeld- LG <[email protected]>

From: Seth Greenfeld- LG [mailto: [email protected]] Sent: Friday, April12, 2013 5:23PM To: Su, Jonathan Subject: FOIA

Wed, Apr 17, 2013 at 6:27 PM

Good afternoon. I was told by our Office of Administratiw Ser.1ces that you wanted to see the FOIA about the renovations to a bathroom at the Department of Interior. Attached please find the incoming request, a proposed response from our FOIA Office, and the proposed responslw documents (which are mar1<ed for redaction).

I was also told you wanted to see FOIAs about public affairs officers and West Wing renovations, but those were already sent to you so I assume someone passing the message along here was confused. If you want to see those again though, let me know and I can forward them.

Seth S. Greenfeld

Senior Assistant General Counsel

General Law Office of General Counsel

U.S. General Ser.1ces Administration

(202)- l

CONFIDENTIAUTY NOTICE:

This e-mail message and any attachments to this e-mail message may contain confidential information belonging to the sender which is legally The information is intended only for the use of the or entity to

https://mall.google.comtmaillutOI?ui=2&ik=72ff141e2a&oJew=pt&as_from=jalathan_su%40v.tlo.eop.gO\&Is_subset=all&as_v.1 lhin=1d&search=adv&th=13e1a1bd.. . 1/2 COA-2008

12/11/13 GSA.govMail- RE: FOIA

whom it is addressed. Please do not forward this message without permission. If you are not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this transmission is strictly prohibited. If you have received this transmission in error, please notify me immediately by telephone or return e-mail and delete and destroy the original e-mail message, any attachments thereto and all copies thereof.

https://mail.google.com'mail/u!O/?ui=2&ik=72ff141e2a&\-iew=pt&as_from=jonathan_su%4C!.M10.eop.gov&as_subset=all&as_IMthin=1d&search=adv&th=13e1a1bcl... 2/2 COA-2009

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1

Hitter, Thomas E.

From: Hitter, Thomas E.Sent: Friday, July 20, 2012 9:52 AMTo: Su, JonathanSubject: FOIA re health care legislation

Jonathan – I wanted to check in on the status of the documents responsive to the Judicial Watch FOIA request for records pertaining to the health care legislation. Do you think we could be in a position to send that response sometime next week? Thanks again for the help. Tom

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1

Hitter, Thomas E.

From: Hitter, Thomas E.Sent: Tuesday, August 0 , 2012 1:22 MTo: Su, Jonathan

c: right, AndreSubject: E: Health are FOIA

ttachments: Judicial atch etter re ised .doc

Just an FYI. We’re scheduled to make this production later this week (most likely on Thursday). The documents will be sent by regular mail. Attached is the cover letter that will accompany the documents. Please let me know if you have any questions. Tom From: Su, Jonathan Sent: Thursday, July 26, 2012 8:55 PM To: Hitter, Thomas E. Cc: Wright, Andrew Subject: Health Care FOIA Hi Tom: We're clear on the health care FOIA. Thanks so much for working with us. Jonathan

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13-L-1252/DOD-OSD/26COA-2014

13-L-1252/DOD-OSD/27COA-2015

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COA-2021

13-L-1252/DOD-OSD/84COA-2022

13-L-1252/DOD-OSD/85COA-2023

13-L-1252/DOD-OSD/86COA-2024

COA-2025

COA-2026

COA-2027

COA-2028

EXHIBIT 3

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 1 of 13

COA-3001


COA-3002


COA-3003


COA-3004


COA-3005


COA-3006


COA-3007


COA-3008


COA-3009


COA-3010


COA-3011


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COA-3013

FTC FOIA-2012-00227 81

COA-3014

FTC FOIA-2012-00227 11

COA-3015

FTC FOIA-2012-00227 12

COA-3016

FTC FOIA-2012-00227 13

COA-3017

FTC FOIA-2012-00227 90

COA-3018

FTC FOIA-2012-00227 91

COA-3019

FTC FOIA-2012-00227 46

COA-3020

FTC FOIA-2012-00227 47

COA-3021

FTC FOIA-2012-00227 87

COA-3022

FTC FOIA-2012-00227 32

COA-3023

FTC FOIA-2012-00227 33

COA-3024

Letter & Exhibits - FOIA Failures

Documents

Transcript of Letter & Exhibits - FOIA Failures