Attn: FOIA Appeals Officer
U.S. Department of the Interior
Office of the Solicitor
1849 C Street NW
MS6556 MIB
Washington, DC 20001
foia.appeals@sol.doi.gov
October 12, 2016
Delivery via email
Re: FOIA Appeal OS-2016-00331
Dear FOIA Appeals Officer:
I am writing on behalf of Joe Smyth of the Climate Investigations Center to appeal a decision by
the U.S. Department of the Interior (“DOI”) to deny, in part, a request for records under the
Freedom of Information Act (“FOIA”). The partial denial by the agency did not properly apply
FOIA Exemption 4,1 and is in contravention with the purpose of the Act.2
FACTS
On June 14, 2016, Joe Smyth, on behalf of Climate Investigations Center, filed a Freedom of
Information Act request to the Office of Natural Resource Revenue (“ONRR”), a component
agency of DOI, seeking “sales volume tonnage” by company, or, the amount of coal that was
mined and then sold (excluding any waste), for all federal coal mined in 2015 and between
January 1, 2016 and May 31, 2016. 3 Mr. Smyth specifically requested that royalty information
be excluded from any responsive records provided by the Department. Notably, Mr. Smyth has
previously requested and received the same information for other recent time periods,4 and has
effectively shared this information with the broader public.5
On September 12, 2016, Department of the Interior FOIA Officer, Clarice Julka sent Mr. Smyth
a response including a single page document containing sales volume data. Some, but not all of
the entries regarding sales volume tonnage for certain companies were redacted and marked
“b(4).”6 In its letter the Department concluded that these figures were “‘confidential commercial
1

5 U.S.C. § 552(b)(4).
FOIA exemptions including Exemption 4 "do not obscure the basic policy that disclosure, not secrecy, is the
dominant objective of the Act." Dep't of the Interior and Bur. of Indian Affairs v. Klamath Water Users Protective
Ass'n, 532 U.S. 1, 8 (2001) (citations omitted).
3
See Exhibit A-1.
4
See Exhibit C. A comparison with the present response data from DOI found at Exhibit B-4 with prior response
data found at Exhibit C-10 (Spring Creek); C-3 (Antelope); C-5 (Cordero); C-4 (Kiewit) shows inconsistent
disclosure practices for the identical type of information from the same companies.
5
Joe Smyth, Corporate Welfare for Coal, Greenpeace (March 2016) available at
http://www.greenpeace.org/usa/wp-content/uploads/2016/03/corporate-welfare-for-coal.pdf?f3025c.
6
For example, Cloud Peak Energy is the third largest US coal mining company, and data released under an earlier
FOIA request shows that Cloud Peak Energy mined over 75 million tons of federal coal in 2014, 88% of its coal
production and 18.5% of all federal coal mined that year. See Joe Smyth, Corporate Welfare for Coal, Greenpeace
2

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 or financial information obtained from a person’ and may be properly withheld, pursuant to
Exemption 4. . . .”7 The FOIA Officer concluded that under the test established in National Parks
& Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974), Exemption 4 allows the
withholding of information because “[p]ublic release of the withheld information could cause
harm to the submitter’s competitive position in the marketplace. It could be used by competitors
in negotiations against the submitter.”8 ONRR consulted companies regarding Mr. Smyth’s June
14th request prior to making its determination.9
ARGUMENT
As stated in the response letter from DOI, Exemption 4 protects those who voluntarily provide
and who are required to give information to the government, as is the case in providing federal
coal sales volume data, from harm due to disclosure.10 The Department has not properly applied
Exemption 4 which is to be a narrowly construed exception to the presumption of disclosure
under FOIA. The applicable standard set forth in National Parks is clear: “The exemption may
be invoked for the benefit of the person who has provided commercial or financial information if
it can be shown that public disclosure is likely to cause substantial harm to his competitive
position.”11
National Parks provides the only criteria for determining whether Exemption 4 applies, and no
other justification can be cited as grounds for withholding public information.12 For example,
Exemption 4 does not guard against mere embarrassment in the marketplace, nor is fear of
reverse FOIA relevant for an agency’s decision whether or not to withhold information under
Exemption 4. 13
I.

The Department of Interior Failed to Meet Its Burden In Showing
That Substantial Harm From Disclosure Is Likely.

The Department of Interior’s reply to Mr. Smyth’s June 14, 2016 FOIA request failed to provide
sufficient explanation for withholding information under Exemption 4, stating, without any
specificity, that disclosure “could cause harm to the submitter’s competitive position.” This
explanation provided by the agency is merely a conclusory statement, and with no other
justification, DOI has failed meet its burden in showing that there are grounds to apply any
exemption to the presumption of disclosure under FOIA. 14
5 (March 2016). Withholding Cloud Peak Energy's more recent federal coal production would leave a major gap in
the public understanding of the management of our coal.
7
Exhibit B-1.
8
Id.
9
See Exhibit D.
10
See 5 U.S.C. § 522(b)(4).
11
Nat’l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 767-70 (D.C. Cir. 1974)(emphasis added).
12
See CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1151 (D.C. Cir. 1987) (declining to abandon National
Parks criteria when examining Exemption 4 withholdings).
13
The reviewing agency, in this case the DOI, not the submitter of information is responsible for the final
determination under FOIA, and the submitter’s perceived reputational damage from public dissemination of public
information is not valid grounds for objection to the release of public records under FOIA. See United Techs. Corp.,
Pratt & Whitney Div. v. DOD, 601 F.3d 557, 564 (D.C. Cir. 2010).
14
An agency opposing disclosure based on Exemption 4 need not provide a detailed economic analysis of the
competitive environment, but it must at least provide some level of detail that contain more than mere conclusory

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 II.

The Department of the Interior Failed to Apply the Proper Criteria In
Determining Whether Exemption 4 Applies.

The applicable standard set forth in National Parks is clear: “The exemption may be invoked for
the benefit of the person who has provided commercial or financial information if it can be
shown that public disclosure is likely to cause substantial harm to his competitive position.”15
DOI has decided to apply a less strict standard claiming that because disclosure “could cause
harm” to the submitter they are permitted to withhold information under Exemption 4.16 This
overly broad interpretation of Exemption 4 contradicts FOIA’s broad mandate of disclosure as
well as established precedent.17
III.

The Department of Interior Erroneously Withheld Information Under
Exemption 4.

Assuming arguendo that DOI used the proper test in determining whether Exemption 4 applied
to the information responsive to Mr. Smyth’s request, Exemption 4 cannot be used to withhold
federal coal sales volume data. Outside of the conclusory explanation provided by the agency,
Mr. Smyth’s past experience requesting identical information provides evidence that all
information responsive to his request should be disclosed under FOIA.
As part of a prior FOIA request, “sales volume data” from 2014 was publicly released by
ONRR.18 The records supplied to Mr. Smyth included sales volume data for some of the very
same companies whose information is redacted in the present request. After receiving the 2014
records along with records from other years, Mr. Smyth helped inform others about this
important public information through a report published by his former employer, Greenpeace.19
These facts raise questions about why previously disclosed information would be withheld in a
subsequent request filed approximately one year later. DOI fails to explain how identical
information for identical companies changed so much in nature that its release would now, after
publication of a Greenpeace report, likely cause substantial harm to the company and therefore
justify withholding under Exemption 4. In light of prior disclosures to Joe Smyth and wide
publication of that information, it would be expected that DOI would readily be able to provide a
specific explanation of alleged harm. DOI’s determination does not explain why disclosure of
sales volume data would hurt some companies that mine federal coal but not all.
CONCLUSION
For the foregoing reasons, the agency has acted arbitrarily and capriciously by improperly
denying portions of Mr. Smyth’s request. The management of federal coal has major impacts on
communities, energy economics, and the environment, and disclosure of such information fits
statements of competitive harm. See Niagara Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16, 18 (D.C.
Cir. 1999); Pac. Architects & Eng'rs, Inc. v. Renegotiation Bd., 505 F.2d 383, 384 (D.C.Cir.1974) (requiring
agencies to provide more than generalized assertions and conclusory allegations that competitive harm will result
from disclosure).
15
Nat’l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 767-70 (D.C. Cir. 1974) (emphasis added).
16
Exhibit B-1.
17
See Dep't of the Interior and Bur. of Indian Affairs v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001).
18
Exhibit C.
19
Joe Smyth, Corporate Welfare for Coal, Greenpeace (March 2016).

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 squarely within the purpose of FOIA. Withholding information requested by Mr. Smyth would
leave a major gap in the public understanding of the management of federal coal.
Along with the moratorium and comprehensive review of the federal coal program, in January
2016 Secretary Jewell announced that DOI would undertake “good government reforms to
improve transparency and administration of the federal coal program."20 Withholding Cloud
Peak Energy, Kiewit, and Murray Energy subsidiaries' federal coal production data is
inconsistent with this commitment to improve transparency of the federal coal program.
We respectfully request a reversal of the agency’s decision to partially deny Mr. Smyth’s FOIA
request. Within 20 days, and in the event this appeal is denied, please provide a written response
describing the reasons for the denial, the names and titles of each person responsible for the
denial, and the procedures required to invoke judicial review in this matter. If this appeal is
denied or the Agency’s response is not forthcoming within 20 working days, we reserve the right
under FOIA to seek judicial review, including the award of attorney’s fees. Thank you for your
consideration.
Sincerely,

Allison Kole
Senior Legal Fellow
Climate Investigations Center
allison@climateinvestigations.org

20

Department of Interior, Press Release, “Secretary Jewell Launches Comprehensive Review of Federal Coal
Program” (Jan. 15, 2016) available at https://www.doi.gov/pressreleases/secretary-jewell-launches-comprehensivereview-federal-coal-program.

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