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CAUSE OF ACTION - RESPONSE TO MAY 8, 2015 LETTER

APPENDIX
Excessive or Inappropriate Redactions
1.

CoA Bates No. COA-A001 COA-A005


14-00274-F (Department of Education)
Subject: Craig Memo and White House Equities review
Failure(s): Excessive use of Exemption 5 (deliberative process privilege)

2.

CoA Bates No. COA-A006 COA-A028


OS-2014-001642 [OCD-2014-000204] (Department of Commerce)
Subject: Craig Memo and White House Equities review
Failure(s): Excessive use of Exemption 5 (deliberative process, attorney-client, and
attorney work-product privileges); Delay of six months in responding to appeal

3.

CoA Bates No. COA-A029 COA-A040


2014-01217 (Federal Trade Commission)
Subject: Communications with Congressional staff regarding pending enforcement action
Failure(s): Use of non-agency record designation to exclude attachments to un-redacted
communications from Congress

4.

CoA Bates No. COA-A041 COA-A073


2015-00110 (Federal Trade Commission)
Subject: Records regarding pending enforcement action
Failure(s): Use of Speech or Debate Clause to redact information; Excessive use of
Exemption 5 (deliberative process privilege)

5.

CoA Bates No. COA-A074 COA-A086


ECM-79944830 (Department of Agriculture)
Subject: Craig Memo and White House Equities review
Failure(s): Inappropriate use of Exemption 5 in conjunction with the presidential
communications privilege

6.

CoA Bates No. COA-A087 COA-A091


F13156-0087 (Environmental Protection Agency)
Subject: Craig Memo and White House Equities review
Failure(s): Inappropriate use of Exemption 5 (attorney-work product privilege)

Lengthy Delays
7.

CoA Bates No. COA-A092 COA-A096


F-2013-01843 (Central Intelligence Agency)
Subject: IG response to Rep. Issa & Sen. Grassley on politicized FOIA processing
Failure(s): Delay of approximately two years

CAUSE OF ACTION - RESPONSE TO MAY 8, 2015 LETTER


8.

CoA Bates No. COA-A097 COA-A101


2013-06-131 (Department of the Treasury)
Subject: Records of FOIA sensitive review committee
Failure(s): Delay of approximately two years

9.

CoA Bates No. COA-A102 COA-A105


HQ-2014-006678 (Environmental Protection Agency)
Subject: White House review of records responsive to OGR committee request
Failure(s): Delay of approximately one year

10.

CoA Bates No. COA-A106 COA-A115


F15008-0033 [F15308-0092] (Internal Revenue Service)
Subject: Detailing of DOJ Tax Division attorneys to the White House
Failure(s): Delay of approximately six months; Inappropriate administrative closure

11.

CoA Bates No. COA-A116 COA-A124


F-2015-4785 (Department of State)
Subject: Hillary Clintons private e-mails and records regarding retention/recovery
Failure(s): Failure to respond after nearly three months, or to produce any responsive
records, even after request for expedited processing granted

Administrative Closures see Tabs 10, 12


Requests to Narrow or Otherwise Limit the Scope of the Request
12.

CoA Bates No. COA-A125 COA-A135


HQ-2014-002346 (Environmental Protection Agency)
Subject: Executive branch earmarking
Failure(s): Delay of over one year, despite negotiated narrowing of scope through the
provision of names and search terms; Inappropriate administrative closure

Delayed Appeals or Refusals to Mediate


13.

CoA Bates No. COA-A136 COA-A148


150080 (Department of Labor)
Subject: Craig Memo and White House Equities review
Failure(s): Delay of approximately eight months in responding to appeal

14.

CoA Bates No. COA-A149 COA-A158


NGC14-311 [NGC15-017A] (National Archives and Records Administration)
Subject: Lois Lerner e-mails and records regarding retention/recovery
Failure(s): Delay of approximately five months in responding to appeal

CAUSE OF ACTION - RESPONSE TO MAY 8, 2015 LETTER


Unreasonable Denial of Fee Waivers
15.

CoA Bates No. COA-A159 COA-A243


2011-01431; 2012-00227; 2012-00687 (Federal Trade Commission)
Subject: FTCs planned regulation of social media authors and bloggers
Failure(s): Unreasonable denial of fee waiver and fee category requests, despite Cause of
Actions explained basis and prior history in obtaining waivers

Other Barriers to Accessing Disclosable Agency Records


16.

CoA Bates No. COA-A244 COA-A249


OIP/13-04722(F) (Department of Justice)
Subject: Processing notes on request for Craig Memo
Failure(s): Failure to produce Craig Memo until identified by Cause of Action; Failure to
respond to subsequent FOIA request for processing notes (delay of approximately
twenty-one months)

17.

CoA Bates No. COA-A250 COA-A263


2014-303-F (Consumer Financial Protection Bureau)
Subject: Records regarding Operation Chock Point and the payday lending industry
Failure(s): Failure to identify or produce publicly-available document on payday lending
until identified by Cause of Action

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UNITED STATES DEPARTMENT OF EDUCATION


OFFICE OF MANAGEMENT
Privacy, Information and Records Management Services
June 27, 2014
Moira Smith
Cause of Action
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

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

Page 2 - 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
EDFOIAMANAGER@ed.gov.
Sincerely,

~~
Arthur Caliguiran
FOIA Public Liaison
FOIA Service Center
Enclosure

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


www.ed.gov

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

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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 Counsels
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 FOIAAppeals@doc.gov, by facsimile (fax) to 202-4822552, 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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-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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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: FOIA@ftc.gov
Re:

Freedom of Information Act Appeal: FOIA No. 201500110

Dear Mr. Nuechterlein:


This is a timely administrative appeal of the Federal Trade Commissions (FTC) February
10, 2015 second and final determination letter and redaction of documents in response to Cause of
Actions 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
Actions] 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 FTCs denial of news media requester status and determination of Cause of

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).

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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
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

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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 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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DEPARTMENT OF THE TREASURY


WASHINGTON, D.C. 20220

July 1, 2013
RE: 2013-06-131

Ms. Robyn Burrows


Cause of Action
1919 Pennsylvania Ave., N.W.
Washington, DC 20006
E-MAIL: robyn.burrows@causeofaction.org
Dear Ms Burrows:
This concerns your Freedom of Information Act (FOIA) request submitted via FOIA
OnLine on June 25, 2013, which was received in this office.
Every effort will be made in the Departmental Offices (DO) to provide you with a timely
response. However, please be advised that unusual circumstances exist regarding a
search and review of this information because two or more offices will need to be
consulted to determine a response. In addition, the timeframe of the requested records
have the potential of resulting in voluminous records. This will require an additional
processing extension of ten (10) days.
Your request for a fee waiver will be addressed by the program office(s) assigned to the
processing of your request. They will contact you directly. Your request may require
further submissions, justifications, and or more reasonable descriptions.
Further inquiries concerning this request should make reference to the identification
number at the top of this letter and should be faxed to 202-622-3895 or mailed to:
FOIA Request
Disclosure Services
Department of the Treasury
Washington, DC 20220
Sincerely,

Hugh Gilmore
Director, Disclosure Services

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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:

Tracking Number: EPA-HQ-2014-006678


Requester Name: Moira Smith
Date Submitted: 05/20/2014
Request Status: Submitted
Description: Requesting all documents and communications between and among employees of the U.S.
Environmental Protection Agency (EPA) and employees of the Executive Office of the President,
including, but not limited to, the White House Office and the Office of Management and Budget,
referring or relating to congressional requests for information. The relevant time period for this request
is April15, 2009 to May 15, 2014.

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@ CAUSE
- , oACTION
Advocates for Government Accountability

A sm(c)(3) Nonprofit Corporation

March 9 2015

VIA CERTIFIED MAIL & ONLINE PORTAL


John F. Hackett
Acting Director, Office of Information Programs and Services
A/GIS/IPS/RL, SA-2, Room 5021
U. S. Department of State
Washington, D.C. 20522-8100
Email: hackettjf@state.gov
Re:

Freedom of Information Act Request

Dear Acting Director John F. Hackett:


I write on behalf of Cause of Action, a 501 (c)(3) nonpartisan strategic oversight group
committed to ensuring that the regulatory process is transparent, fair, and accountable. 1 In
carrying out its mission, Cause of Action uses various investigative and legal tools to educate the
public about the importance of government transparency and accountability. In this regard,
Cause of Action is concerned that there are potential violations of the law in connection with the
lack of maintenance of former Secretary of State Hillary Clinton's emails while conducting
business on behalf of the Government. Accordingly, Cause of Action requests certain
documents pursuant to the Freedom of Information Act, 5 U.S.C. 552 ("FOIA").
Former Secretary Clinton Conducted Government Business on Private Email.
On March 2, 2015, the New York Times reported that Mrs. Clinton
[E]xclusively used a personal email account to conduct government business as
secretary of state. . . . Mrs. Clinton did not have a government email address
during her four-year tenure at the State Department. Her aides took no actions to
have her personal emails preserved on department servers at the time, as required
by the Federal Records Act. 2

1 CAUSE

OF ACTION, available at www.causeofaction.org.


MichaelS. Schmidt, Hillary Clinton Used Personal Email Account at State Dept., Possibly Breaking Rules, N.Y.
TIMES (Mar. 2, 2015), http://goo.gl/wdQatR.
2

1919 Pennsylvania Ave, NW


~mcauseOfAction

~----

Suite 6so
Washington, DC 20006

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202.4994232

Acting Director John F. Hackett


March 9, 2015
Page 2
The Associated Press added that Mrs. Clinton's emails were stored on "a personal email server
traced back to the Chappaqua, New York," where she keeps her home. 3 Although press reports
indicate that the White House was aware of Mrs. Clinton's potential breach of protocol at least
by August 2014 (but "defer[red] to Clinton's aides"), Mrs. Clinton did not reveal the existence of
the account until the New York Times article, in March 2015. 4
Agencies (and Agency Heads) are Obligated to Preserve Records.

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

Acting Director John F. Hackett


March 9, 2015
Page 3
preserving its records "in accordance with the Federal Records Act." 11 FAM adopts NARA' s
broad definition of "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." 12 FAM directs that emails in particular "must be preserved [because] such
messages are considered Federal records under the law." 13
With regard to classified material, the current FAM provides that employees "must never
remove classified materials from government custody." 14 The previous version ofthe FAM
section on transfers, which was in place during much of Mrs. Clinton's tenure at the State
Department, provides that "when seeking to transfer records to state or private organizations ...
employees must obtain [Record Management Branch] and NARA approval." 15
The Evidence Indicates Non-Compliance with the Law.

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

Acting Director John F. Hackett


March 9, 2015
Page4
With respect to Mrs. Clinton, there is no doubt that she had actual knowledge of the
illegality of removing official records from the federal government. First, NARA has clearly
stated that "agency officials may create Federal records if they conduct agency business on their
personal email accounts." 16 And the Archivist's own comments suggest that Mrs. Clinton did
not abide by the regulations in place during her tenure. 17 Second, during 1995 hearings
(regarding Whitewater), a Secret Service agent testified that then-First Lady Clinton directed the
unlawful removal of records from the office of Deputy White House Counsel Vincent Foster,
who had committed suicide. 18
Moreover, on March 27, 2012, the State Department, under Mrs. Clinton's stewardship,
reported that it "is considered a leading agency in the Executive Branch in records management
and received a score of 92 in the most recent records management program evaluation conducted
by" NARA. 19 The report detailed that the State Department had replaced its outdated cable
communication system with the State Messaging and Archive Retrieval Toolset ("SMART"),
which "contains an email management component for capturing record email."20
The evidence shows that Mrs. Clinton had access to and did use the official State
Department SMART system, which logged her communications. 21 However, because Mrs.
Clinton could access official emails via her personal system, we know that she had access to
classified material on her personal computer, such as an agency communication discussing
WikiLeaks (which contains portions that are classified). 22 And an email from Paul Elliott, a
government relations employee at TransCanada, to Nora Toiv in the Secretary's Office, shows
that the office was able to circumvent the SMART system when needed. 23

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

Acting Director John F. Hackett


March 9, 2015
Page 5
Indeed, despite the agency's claims and its use ofthe SMART system, the Department of
State Office oflnspector General ("DOS-OIG") has issued myriad reports exposing the agency's
deficiencies in record keeping:

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

Acting Director John F. Hackett


March 9, 2015
Page 6
3.

4.
5.
6.

7.

All records referring or relating to the existence, installation, or removal of the


SMART system on an electronic device (including but not limited to a computer,
mobile communications device, or email server) used by, controlled by or in the
exclusive possession of Secretary Clinton.
All documents relating to any waiver granted to Secretary Clinton regarding
compliance with the SMART system.
All documents relating to any waiver granted to Secretary Clinton regarding
compliance with the Federal Records Act.
All communications between Secretary Clinton (including her personal or
professional delegates), or anyone in the Office of the Secretary and/or NARA
concerning the use, transfer, disposition or preservation of Mrs. Clinton's
electronic records on a server controlled or held by Secretary Clinton.
All communications between Secretary Clinton (including her personal or
professional delegates), or anyone in the Office of the Secretary and/or NARA
concerning the use, transfer, disposition or preservation of Mrs. Clinton's
electronic records on a server controlled or held by the agency.

Request for Expedited Processing

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

See 5 U.S.C. 552(a)(6)(E); 22 C.F.R. l71.12(b).


22 C.F.R. l7l.l2(b)(2).
30
!d., l7l.l2(b)(2)(i).
31
See generally articles cited herein.
32
5 U.S.C. 552(a)(4)(A)(iii).
29

COA-A121

Acting Director John F. Hackett


March 9, 2015
Page 7
understanding of the operations or activities ofthe government and is not primarily in the
commercial interest of the requester." 33
The requested records would unquestionably shed light on the "operations or activities of
the government," namely the steps the State Department did or did not take that resulted in Mrs.
Clinton using her private email account for official government business in potential
contravention of federal statutory law and agency manuals. This information is likely to
contribute significantly to public understanding because, to date, the State Department's role in
allowing Mrs. Clinton's behavior to go unchecked is not fully known.
Cause of Action has both the intent and ability to make the results of this request
available to a reasonably broad public audience through various media. Cause of Action's staff
has a wealth of experience and expertise in government oversight, investigative reporting, and
federal public interest litigation. 34 These professionals will analyze the information responsive
to this request, use their editorial skills to turn raw materials into a distinct work, and share the
resulting analysis with the public, whether through Cause of Action's regularly published online
newsletter, memoranda, reports, or press releases. Further, Cause of Action, a nonprofit
organization under section 501(c)(3) of the Internal Revenue Code, does not have a commercial
interest in making this request. The requested information will be used to educate the general
public about the State Department's treatment of private email accounts.

Request to be Classified as a Representative of the News Media


For fee status purposes, Cause of Action qualifies as a "representative of the news media"
under FOIA. 35 Specifically, Cause of Action gathers information of potential interest to a
segment of the public, uses its editorial skills to turn raw materials into a distinct work, and
distributes that work to an audience. 36 Cause of Action gathers the news it regularly publishes
from a variety of sources, including FOIA requests, whistleblowers/insiders, and scholarly
works. Cause of Action does not merely make raw information available to the public, but rather
distributes distinct work products, including articles, blog posts, investigative reports, and
newsletters. 37 These distinct works are distributed to the public through various media, including
33
34

!d.; see also 22 C.F.R. l7l.l7(a).


See 22 C.F.R. l7l.l7(a)(l )(iii) (providing that one factor is "whether the requester has expertise in the subject

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.

COA-A122

Acting Director John F. Hackett


March 9, 2015
Page 8
Cause of Action's website, which has been viewed just under 100,000 times in the past year
alone. 38 Cause of Action also disseminates news to the public via Twitter and Facebook, and it
provides news updates to subscribers via email.
The statutory definition of a "representative of the news media" unequivocally
contemplates that organizations such as Cause of Action, which electronically disseminate
information and publications via "alternative media[,] shall be considered to be news-media
entities. " 39 In light of the foregoing, numerous federal agencies - including the State Department
as recently as December 2014- have appropriately recognized Cause of Action's news media
status in connection with its FOIA requests. 40
Record Production and Contact Information

In an effort to facilitate document review, please provide the responsive documents in


electronic form in lieu of a paper production. If readily reproducible, the production should
consist of load files that are compatible with Concordance Evolution. If a certain portion of
responsive records can be produced more readily, Cause of Action requests that those records be
produced first and that the remaining records be produced on a rolling basis as circumstances
permit.
If you have any questions about this request, please contact me by telephone at (202)
499-4232 or at daniel.epstein@causeofaction.org. T
r your attention to this matter.

EXECUTIVE DIRECTOR

38

Google Analytics for http://www.causeofaction.org (on file with Cause of Action).


5 U.S.C. 552(a)(4)(A)(ii)(II).
40
See, e.g., FOIA Request F-2015-106, Fed. Commc'n Comm'n (Dec. 12, 2014); Dep't of State, F-2014-21360
(Dec. 3, 2014); Nat'! Labor Relations Bd. (Dec. 1, 2014); FOIA Request 201500009F, Exp.-Imp. Bank (Nov. 21,
2014); FOIA Request 2015-0SEC-00771-F, U.S. Dep't of Agric. (OCIO) (Nov. 21, 2014); FOIA Request OS-201500068, U.S. Dep't of Interior (Office ofSec'y) (Nov. 20, 2014); FOIA Request CFPB-2015-049-F, Consumer Fin.
Prot. Bureau (Nov. 19, 2014); FOIA Request G0-14-307, Dep't ofEnergy (Nat'! Renewable Energy Lab.) (Aug. 28,
2014); FOIA Request HQ-2014-01580-F, Dep't of Energy (Nat'l Headquarters) (Aug. 14, 2014); FOIA Request LR20140441, Nat'! Labor Relations Bd. (June 4, 2014); FOIA Request 14-01095, Sec. & Exch. Comm'n (May 7,
2014); FOIA Request 2014-4QF0-00236, Dep't ofHome1and Sec. (Jan. 8, 2014); FOIA Request DOC-OS-2014000304, Dep't of Commerce (Dec. 30, 2013); FOIA Request 14F-036, Health Res. & Serv. Admin. (Dec. 6, 2013);
FOIA Request 2013-073, Dep't of Homeland Sec. (Apr. 5, 2013); FOIA Request 2012-RMA-02563F, Dep't of
Agric. (May 3, 20 12); FOIA Request 2012-00270, Dep't of Interior (Feb. 17, 2012); FOIA Request 12-00455-F,
Dep't ofEduc. (Jan. 20, 2012).
39

COA-A123

COA-A124

COA-A125

COA-A126

COA-A127

COA-A128

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.

Begin forwarded message:


From: "hq.foia@epa.gov" <hq.foia@epa.gov>
Date: January 14, 2014 at 7:38:28 PM EST
To: Allan Blutstein <allan.blutstein@causeofaction.org>
Subject: FOIA Fee Waiver Disposition Reached for EPA-HQ-2014-002346
Your request for Fee Waiver for the FOIA request EPA-HQ-2014-002346 has been fully
granted. Additional details for this request are as follows:

Request Created on: 01/07/2014


Request Long Description: All documents....referring or relating to EO 13457 "Protecting
American Taxpayers from Government Spending on Wasteful Earmarks".....all
documents between and among any political appointee, White House liaison and/or
employee of the White House referring to or relating to any request to commit, obligate
or expend funds.....all documents evidencing the agency's decision to commit, obligate or
expend funds based upon a request from Congress or the White House.

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,

James Valvo | Counsel & Senior Policy Advisor | Cause of Action


1919 Pennsylvania Ave NW, Suite 650
Washington, D.C. 20006
james.valvo@causeofaction.org
202-499-4232
Click here to subscribe to our alerts!

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.

From: Newton, Jonathan [mailto:Newton.Jonathan@epa.gov]


Sent: Tuesday, April 07, 2015 1:14 PM
To: James Valvo
Cc: Hope, Brian
Subject: RE: EPA-HQ-2014-002346

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,

James Valvo | Counsel & Senior Policy Advisor | Cause of Action


1919 Pennsylvania Ave NW, Suite 650
Washington, D.C. 20006
2

COA-A131

james.valvo@causeofaction.org
Right-click here to
download pictures. To
help protect y ou r priv acy ,
Outlo ok prev ented
auto matic downlo ad o f
this pictu re from the
In ternet.

202-499-4232
Click here to subscribe to our alerts!

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.

From: Kevin Schmidt


Sent: Monday, October 06, 2014 4:55 PM
To: Hope.Brian@epa.gov
Subject: FW: EPA-HQ-2014-002346

Mr. Hope,
See below. Im inquiring on an update for FOIA request EPA-HQ-2014-002346.
Thanks!
Right-click here to
download pictures. To
help protect y ou r priv acy ,
Outlo ok prev ented
auto matic downlo ad o f
this pictu re from the
In ternet.

KevinSchmidt|Investigations,SocialMediaandWeb|CauseofAction|202.499.2414

Confidentiality

Theinformationcontainedinthiscommunicationmaybeconfidential,isintendedonlyfortheuseoftherecipientnamedabove,andmaybelegallyprivileged.Itisnot
intendedaslegaladvice,andmaynotberelieduponorusedaslegaladvice.Nordoesthiscommunicationestablishanattorneyclientrelationshipbetweenus.Ifthe
readerofthismessageisnottheintendedrecipient,youareherebynotifiedthatanydissemination,distribution,orcopyingofthiscommunication,oranyofits
contents,isstrictlyprohibited.Ifyouhavereceivedthiscommunicationinerror,pleaseresendthiscommunicationtothesenderanddeletetheoriginalmessageand
anycopyofitfromyourcomputersystem.Thankyou.

From: Kevin Schmidt


Sent: Monday, October 06, 2014 4:53 PM
To: 'Newton, Jonathan'
Subject: RE: EPA-HQ-2014-002346

Any updates on this request? Happy to narrow further if necessary.


Thanks
Right-click here to
download pictures. To
help protect y ou r priv acy ,
Outlo ok prev ented
auto matic downlo ad o f
this pictu re from the
In ternet.

KevinSchmidt|Investigations,SocialMediaandWeb|CauseofAction|202.499.2414

Confidentiality

Theinformationcontainedinthiscommunicationmaybeconfidential,isintendedonlyfortheuseoftherecipientnamedabove,andmaybelegallyprivileged.Itisnot
intendedaslegaladvice,andmaynotberelieduponorusedaslegaladvice.Nordoesthiscommunicationestablishanattorneyclientrelationshipbetweenus.Ifthe
3

COA-A132

readerofthismessageisnottheintendedrecipient,youareherebynotifiedthatanydissemination,distribution,orcopyingofthiscommunication,oranyofits
contents,isstrictlyprohibited.Ifyouhavereceivedthiscommunicationinerror,pleaseresendthiscommunicationtothesenderanddeletetheoriginalmessageand
anycopyofitfromyourcomputersystem.Thankyou.

From: Newton, Jonathan [mailto:Newton.Jonathan@epa.gov]


Sent: Monday, May 05, 2014 3:45 PM
To: Kevin Schmidt
Subject: RE: EPA-HQ-2014-002346

Thesenamesandsearchtermsprovidegreaterclarification,thankyou.

JonathanV.Newton,AttorneyAdvisor
U.S.EPA,OfficeoftheExecutiveSecretariat
1200PennsylvaniaAvenue,NW(MC1105A)
Washington,D.C.20460
Right-click here to
download pictures. To
help protect y ou r priv acy ,
Outlo ok prev ented
auto matic downlo ad o f
this pictu re from the
In ternet.

(202)5661981

From: Kevin Schmidt [mailto:kevin.schmidt@causeofaction.org]


Sent: Monday, May 05, 2014 3:25 PM
To: Newton, Jonathan
Subject: RE: EPA-HQ-2014-002346

Please let me know if the following clarification works for you.


January 1, 2010 to December 31, 2012

1.
2.
3.
4.
5.
1.
2.
3.
1.
2.
3.
4.
5.

White House Liaisons


WhiteHouseLiaisonJonMonger
WhiteHouseLiaisonKelleySmith
WhiteHouseLiaisonDanKanninen
WhiteHouseLiaisonMarygraceGalston
AnyotherWhiteHouseLiaisonduringtheabovetimeperiod.
Office of Congressional and Intergovernmental Relations (OCIR)
AssociateAdministratorLauraVaught
DeputyAssociateAdministratorNicholeDistefano
DeputyAssociateAdministratorMarkRupp
Search terms for accounts
Grant
Earmark
ARRA
Stimulus
Reid

Right-click here to
download pictures. To
help protect y ou r priv acy ,
Outlo ok prev ented
auto matic downlo ad o f
this pictu re from the
In ternet.

KevinSchmidt|Investigations,SocialMediaandWeb|CauseofAction|202.499.2414

Confidentiality

Theinformationcontainedinthiscommunicationmaybeconfidential,isintendedonlyfortheuseoftherecipientnamedabove,andmaybelegallyprivileged.Itisnot
intendedaslegaladvice,andmaynotberelieduponorusedaslegaladvice.Nordoesthiscommunicationestablishanattorneyclientrelationshipbetweenus.Ifthe
4

COA-A133

readerofthismessageisnottheintendedrecipient,youareherebynotifiedthatanydissemination,distribution,orcopyingofthiscommunication,oranyofits
contents,isstrictlyprohibited.Ifyouhavereceivedthiscommunicationinerror,pleaseresendthiscommunicationtothesenderanddeletetheoriginalmessageand
anycopyofitfromyourcomputersystem.Thankyou.

From: Newton, Jonathan [mailto:Newton.Jonathan@epa.gov]


Sent: Friday, May 02, 2014 7:32 PM
To: Kevin Schmidt
Subject: FW: EPA-HQ-2014-002346

ThankyouforfollowinguponthisFOIArequest.Pleaseprovideasmuchinformationaspossibletoassistagencystaffin
identifyingtherecordsyouareseeking.

JonathanV.Newton,AttorneyAdvisor
U.S.EPA,OfficeoftheExecutiveSecretariat
1200PennsylvaniaAvenue,NW(MC1105A)
Washington,D.C.20460
Right-click here to
download pictures. To
help protect y ou r priv acy ,
Outlo ok prev ented
auto matic downlo ad o f
this pictu re from the
In ternet.

(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

Dear FOIA Officer,


I email regarding FOIA Request EPA-HQ-2014-002346. Im inquiring about providing guidance in the processing of this
request.
I can provide:
1. Employee names
2. Search terms
3. Any clarification you may need for processing.
Contact me via email or at the number below.
KevinSchmidt|Investigations,SocialMediaandWeb|CauseofAction
1919PennsylvaniaAvenueNW|Suite650|Washington,DC20006
Kevin.Schmidt@causeofaction.org
Right-click here to
download pictures. To
help protect y ou r priv acy ,
Outlo ok prev ented
auto matic downlo ad o f
this pictu re from the
In ternet.

202.499.2414

Clickheretosubscribetoouralerts!
The link ed image cannot be display ed. The file may hav e been
mov ed, renamed, or deleted. Verify that the link points to the correct
file and location.

Confidentiality

COA-A134

Theinformationcontainedinthiscommunicationmaybeconfidential,isintendedonlyfortheuseoftherecipientnamedabove,andmaybelegallyprivileged.Itisnot
intendedaslegaladvice,andmaynotberelieduponorusedaslegaladvice.Nordoesthiscommunicationestablishanattorneyclientrelationshipbetweenus.Ifthe
readerofthismessageisnottheintendedrecipient,youareherebynotifiedthatanydissemination,distribution,orcopyingofthiscommunication,oranyofits
contents,isstrictlyprohibited.Ifyouhavereceivedthiscommunicationinerror,pleaseresendthiscommunicationtothesenderanddeletetheoriginalmessageand
anycopyofitfromyourcomputersystem.Thankyou.

COA-A135

COA-A136

COA-A137

COA-A138

COA-A139

U.S. Department of Labor

Office of the Solicitor


Washington, D.C. 20210

June 27, 2014


Robyn Burrows
Cause of Action
1919 Pennsylvania Ave., NW
Suite 650
Washington, DC 20006
Dear Ms. Burrows:
This letter serves as a response to your request for information, dated November 26, 2013 , made
pursuant to the Freedom of Information Act, 5 U.S.C. 552 (FOIA). In response, the Office of
the Solicitor (SOL), U.S. Department of Labor (DOL) is providing documents that have been
identified as responsive to your FOIA request.
In your letter, you requested records reflecting all communications between the Office of White
House Counsel (OWHC) and the U.S. Department of Labor, Office of the Solicitor concerning
OWHC review of agency records. You stated that the time period for your request is January 1,
2012 to present. You also stated that you do not seek access to the actual records that were
forwarded, but only to records that reflect that such consultations occurred.
In support of your request for a public interest fee waiver, you stated that Cause of Action
intends to use the information responsive to your request to educate the public about DOL's
FOIA policy and procedures for processing records with White House equities. Therefore, SOL
has interpreted your request to be limited to a request for records showing communications
between SOL and OWHC concerning OWHC review of DOL records that are responsive to a
FOIA request. You represent that Cause of Action is a non-profit organization with no
commercial interest in making the request. Accordingly, SOL has determined that a fee waiver
is justified under 5 U .S.C. 552(a)(4 )(A)(iii).
In response to your request, SOL is providing 57 pages of partially redacted documents
comprised of emails between OWHC and SOL. Information that is deliberative, subject to the
attorney/client privilege, and/or is attorney work product has been redacted under FOIA
Exemption (b)(5), 5 U.S.C. 552 (b)(5). Information about individuals has been redacted under
FOIA Exemption (b)(6), 5 U.S.C. 552 (b)(6), if its disclosure would constitute a clearly
unwarranted invasion of personal privacy.
SOL determined that additional information could have been withheld from these documents
pursuant to the deliberative process privilege under FOIA Exemption (b)(5). However, SOL is
making a discretionary disclosure of this material at this time. See President Obama's FOIA

COA-A140

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

COA-A141

COA-A142

COA-A143

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COA-A145

COA-A146

COA-A147

COA-A148

COA-A149

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COA-A151

COA-A152

COA-A153

COA-A154

COA-A155

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COA-A157

COA-A158

Case 1:12-cv-00850-EGS Document 1-1 Filed 05/25/12 Page 1 of 4

EXHIBIT 1

COA-A159

Case 1:12-cv-00850-EGS Document 1-1 Filed 05/25/12 Page 2 of 4

Freedom Through Justice Foundation


2111 Wilson

Blvd #700
Arlington, VA 22201
703.87s.862s

August 30, 2011

VIA CERTIFIED MAlL


Freedom of Information Act Request
Office of General Counsel
Federal Trade Commission
600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580

Re: Freedom of Information Act Request


Dear Ms. Engle,
We write on behalf of the Freedom Through Justice Foundation, a 501(c)(3) nonprofit
corporation that uses public policy and legal reform strategies to ensure greater transparency in
government, protect taxpayer interests and promote social and economic freedoms. It has come
to our attention the Federal Trade Commission ("FTC") has begun to initiate investigations and
enforcement actions against businesses or individual bloggers who may have violated the FTC's
Guides Concerning the Use of Endorsements and Testimonials in Advertising. Because
disclosure requirements put restrictions on the commercial speech of bloggers and other
marketers, the FTC's actions in this area justify close scrutiny.
Pursuant to the provisions of the Freedom oflnformation Act (FOIA), 5 U.S.C. 552, the
Freedom Through Justice Foundation hereby requests that your department produce the
following within twenty (20) business days:
1. All records relating to the drafting, f01mulation, and revision of the Guides Concerning
the Use ofEndorsements and Testimonials in Advertising.l
1

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.

COA-A160

Case 1:12-cv-00850-EGS Document 1-1 Filed 05/25/12 Page 3 of 4


Ms. Mary K. Engle
August 30, 2011
Page2
2. AU records concerning the results of investigations into conduct by bloggers or social
media authors that allegedly violated the Guides Concerning the Use of Endorsements
and Testimonials in Advertising
3. All records concerning the results of investigations into conduct by companies that
related to alleged violations of the Guides Concerning the Use of Endorsements and
Testimonials in Advertising by bloggers or social media authors
4. Copies of any other requests for information made by outside groups though FOIA
during the last two years regarding revisions to Guides Concerning the Use of
Endorsements and Testimonials in Advertising.
We call your attention to President Obama's January 21,2009 Memorandum concerning
the Freedom of Information Act, in which he states:
All agencies should adopt a presumption in favor of disclosure, in order to
renew their commitment to the principles embodied in FOIA. . . . The
presumption of disclosure should be applied to all decisions involving
FOIA.2
The Freedom Through Justice Foundation is a 50l(c)(3), not-for-profit, educational
organization, and, by definition, has no commercial purpose. As such, Freedom Through Justice
Foundation is entitled to a complete waiver of both search fees and duplication fees pursuant to 5
U.S.C. 552(a)(4)(A)(iii).
In an effort to facilitate record production within the statutory time limit, the Freedom
Through Justice Foundation is willing to accept documents in electronic format (e.g. e-mail,
pdfs). When necessary, the Freedom Through Justice Foundation will also accept the "rolling
production" of documents.
If you do not understand this request or any portion thereof, or if you feel you require
clarification of this request or any portion thereof, please contact Amber Taylor at (703) 8758625. We look forward to receiving the requested documents and a waiver of both search and
duplication costs within twenty (20) business days. Thank you for your cooperation.

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).

COA-A161

Case 1:12-cv-00850-EGS Document 1-1 Filed 05/25/12 Page 4 of 4

Ms. Mary K. Engle


August 30, 2011
Page 3
Executive Director

COA-A162

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EXHIBIT 2

COA-A163

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COA-A164

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EXHIBIT 3

COA-A165

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COA-A166

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COA-A167

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EXHIBIT 4

COA-A168

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UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION


WASI-IINGTON, D.C. 20580

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

Dear Mr. Epstein:


This is in response to your September 26, 2011, asking the Commission to grant a fee
waiver for your request. We received your request in our FOIA office on September 27, 201 L
We are denymg yom request for a fee waiver because you do not qualify for a fee waiver.
See 5 U.S.C. 552 (a)(4)(A)(i) and (iii). You have not proven that disclosure of the requested
records to you will "be likely contribute significantly to the public understanding of the activities
and operations of govemment." Id. Specifically, you have not demonstrated your ability
disseminate information to the general public. Id; see also, FOIA Update, Vol. VII, No.I, at 7-8
("OIP Guidance: New Fee Waiver Policy Guidance"). Additionally, we have determined that
you are an "Other (General Public)" requestor under the FOIA and the Commission's rules of
Practice. See 5 U.S.C. 552(a)(4)(A)(ii)(III) and 16 C.P.R. 4.8(b). In accordance with the
Commission's Rules of Practice, 16 CFR 4.8(b)(6), we are providing you witb 100 pages of
records.
If you are not satisfied with our denial of your request for a fee waiver, you may appeal
by writing to Freedom ofinformation Act Appeal, Office of the General Counsel, Federal Trade
Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580, within 30 days oftbe
date of this letter. Please enclose a copy of your original request and a copy of this response.
If you have any questions about the way we are handling your request or about the FOIA
regulations or procedures, please contact Nathaniel Gray at (202) 326-3452.

Sarah M. Mathias
Associate General Counsel

COA-A169

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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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COA-A190

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COA-A191

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EXHIBIT 9

COA-A198

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COA-A199

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COA-A201

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EXHIBIT 10

COA-A202

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COA-A203

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EXHIBIT 11

COA-A204

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FTC FOIA-2012-00227

COA-A205

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FTC FOIA-2012-00227

COA-A206

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EXHIBIT 12

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EXHIBIT 13

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COA-A221

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EXHIBIT 14

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EXHIBIT 15

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EXHIBIT 16

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COA-A242

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COA-A243

COA-A244

COA-A245

COA-A246

COA-A247

COA-A248

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
Robyn.burrows@causeofaction.org

Re:

OIP/13-03483 (F)
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 Offices eFOIA portal at http://www.justice.gov/oip/efoiaportal.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 Staff
Enclosure

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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
CFPBs 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.

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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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 (FOIA@cfpb.gov) or fax (1-855-FAX-FOIA (329-3642)).

COA-A255

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 CFPBs FOIA Service Center
by email at FOIA@cfpb.gov or by telephone at 1-855-444-FOIA (3642).
Sincerely,

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:

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

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

COA-A260

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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

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

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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
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

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 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

consume rfina nce.gov

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