From: Subject: Date: To: Cc: Ricker, Monique T. EOP/USTR Monique_T_Ricker@ustr.eop.gov RE: FOIA Request: USTR-17-0248 AND USTR-17-0249 August 28, 2017 at 5:03 PM American Oversight FOIA foia@americanoversight.org FN-USTR-FOIA FN-USTR-FOIA@ustr.eop.gov Ms. Creighton, This email is the final response of the Office of the United States Trade Representative (USTR) to Freedom of Information Act (FOIA) No. FY17-104 submitted on July 19, 2017 and perfected on July 27, 2017. After a search of our files, we did not locate records responsive to your request. This constitutes a complete response to your request. You may contact me or my colleague Melissa Keppel at FOIA@ustr.eop.gov or 202-395-3419 for further assistance and to discuss any aspect of your request. Additionally, you may contact the Office of Government Information Services (OGIS) at the National Archives and Records Administration to inquire about the FOIA mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-6846448; or facsimile at 202-741-5769. If you are not satisfied with the response to this request, you may also administratively appeal by writing to: FOIA Office, ATTN: Janice Kaye, Office of the US Trade Representative, Anacostia Naval Annex, Bldg. 410/Door 123, 250 Murray Lane, S.W., Washington, D.C. 20509. Your appeal must be postmarked or electronically transmitted within 90 days of the date of the response to your request. Both the letter and the envelope should be clearly marked: “Freedom of Information Act Appeal" and should include a reference to the FOIA Case File number listed above. Heightened security in force may delay mail delivery; therefore we suggest that you also email any such appeal to foia@ustr.eop.gov. In the event you are dissatisfied with the results of any such appeal, judicial review will thereafter be available to you in the United States District Court for the judicial district in which you reside or have your principal place of business, or in the District of Columbia, where we searched for the records you requested. Thank you, Monique Monique T. Ricker FOIA Program Manager/Attorney EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE WASHINGTON DC 20508 From: Ricker, Monique T. EOP/USTR From: Ricker, Monique T. EOP/USTR Sent: Thursday, August 24, 2017 10:26 AM To: American Oversight FOIA Cc: FN-USTR-FOIA Subject: RE: FOIA Request: USTR-17-0248 AND USTR-17-0249 Ms. Creighton, The USTR has begun to process your request for all USTR communications with Carrier Corp. or United Technologies Corp. and with Indiana Governor, Congress and the Trump Transition Team about eliminating jobs in the US from November 8, 2016 to July 27, 2017, the date we initiated the search. Because your request requires USTR to search for records from the prior administration, we will require an additional ten working days to process due to “unusual circumstances.” I will keep you posted on our progress. Thank you for your patience. Sincerely, Monique Monique T. Ricker FOIA Program Manager/Attorney EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE WASHINGTON DC 20508 From: Ricker, Monique T. EOP/USTR Sent: Thursday, July 27, 2017 2:14 PM To: American Oversight FOIA Cc: FN-USTR-FOIA Subject: RE: FOIA Request: USTR-17-0248 AND USTR-17-0249 Ms. Creighton, Thank you for the additional information. We have initiated the search and our office will provide you with a determination on or before August 24, 2017. If you have any questions, please do not hesitate to contact me or my colleague Melissa Keppel at FOIA@ustr.eop.gov or 202-395-3419. Sincerely, Monique Monique T. Ricker FOIA Program Manager/Attorney FOIA Program Manager/Attorney EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE WASHINGTON DC 20508 From: American Oversight FOIA [mailto:foia@americanoversight.org] Sent: Thursday, July 27, 2017 12:05 PM To: Ricker, Monique T. EOP/USTR Cc: FN-USTR-FOIA Subject: Re: FOIA Request: USTR-17-0248 AND USTR-17-0249 Dear Ms. Ricker, Thank you for your email. We can provide the following clarification about the categories in your email: (1) Please search the files of the following USTR officials, or anyone else who you know to have been involved in communications with the entities at issue in our request: - All political appointees or career SES staff who have been at USTR at any point during the date range of our request (even if they are no longer at USTR) - All employees in the Office of Western Hemispheres Affairs (2) With respect to Carrier/UTC, please search for communications to/from email addresses containing domain names carrier.com, carrier.utc.com, or utc.com. In addition, please search for communications to/from Krister Holladay, a registered lobbyist on behalf of Carrier/UTC. (3) With respect to the Indiana Governor’s staff, please search for communications to/from email addresses containing the domain name IN.gov (4) With respect to communications with Congress, please search for communications to/from email addresses containing the following domain names: - house.gov - senate.gov (5) With respect to communications from the Trump campaign, transition team, and White House, please search for communications to/from email addresses with the domain names ptt.gov or who.eop.gov. In addition, please search for communications to/from the following members of the Trump transition team: - Mike Pence - Gary D. Cohn - Reince Priebus - Jared Kushner - Dan DiMicco - Robert Lighthizer - Nova Daly - Jeff Gerrish - Lawrence Kogan - Rolf Lundberg - Stephen Vaughn - Peter Navarro Please let me know if you need additional clarification. Sincerely, Sara Creighton Counsel American Oversight foia@americanoversight.org 202-869-5245 >www.americanoversight.org< @weareoversight On Jul 20, 2017, at 2:18 PM, Ricker, Monique T. EOP/USTR wrote: Ms. Creighton, The Office of the United States Trade Representative (USTR) received your Freedom of Information Act (FOIA) requests USTR-17-0248 and USTR-170249 dated July 19, 2017, requesting USTR communications with the United Technologies and/or Carrier Corporations, and with Indiana Governors Mike Pence or Eric Holcomb, Congress and the Trump Transition Team about eliminating jobs in Indiana. The timeframe for these searches is from November 8, 2016 to present. We have aggregated these requests because they seek similar information (15 CFR 2004.6(c)(2)) and assigned it tracking number FY17-104. Please cite this number in any future communications with our office regarding your request. We are unable to begin processing your request at this time because we cannot determine precisely which records you are seeking. If you are still interested, we will need you to provide us with more specific information to reasonably describe the records sought so that they can be located with a reasonable amount of effort (15 CFR 2004.3(b)), e.g., 1. which USTR officials; 2. the names and contact information (preferably email address) of the United Technologies and/or Carrier Corporations’ employees; 3. the names and contact information (preferably email address) of Indiana Governors’ (Mike Pence or Eric Holcomb) staff; 4. which Congressmen and Congresswomen; and 5. the names and contact information (preferably email address) of specific employees apart of the Trump presidential campaign, Trump transition team, or the Trump White House. Please note: this is not an exhaustive list. Please note: this is not an exhaustive list. We cannot proceed further with your request until we receive additional written clarification from you. If we do not hear from you within 30 calendar days from the date of this email, we will assume that you are no longer interested in pursuing your request, and we will close our files on the request. If you have any questions or would like help refining your search, please contact me or my colleague Melissa Keppel at FOIA@ustr.eop.gov or 202395-3419. Thank you, Monique Monique T. Ricker FOIA Program Manager/Attorney EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE WASHINGTON DC 20508 From: American Oversight FOIA [mailto:foia@americanoversight.org] Sent: Wednesday, July 19, 2017 3:24 PM To: FN-USTR-FOIA Subject: FOIA Request: USTR-17-0248 Dear FOIA Officer: Below please find the pasted text of a letter requesting information under the Freedom of Information Act. Sincerely, Sara Creighton Counsel American Oversight foia@americanoversight.org 202-869-5246 >>www.americanoversight.org<< @weareoversight USTR-17-0248 July 19, 2017 VIA ELECTRONIC MAIL VIA ELECTRONIC MAIL Janice Kaye Chief FOIA Officer Office of the U.S. Trade Representative Anacostia Naval Annex, Building 410/Door 123 250 Murray Lane SW Washington, DC 20509 FOIA@ustr.eop.gov Re: Freedom of Information Act Request Dear Freedom of Information Officer: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. and the implementing regulations for the U.S. Trade Representative, 15 C.F.R. Part 2004, American Oversight makes the following request for records. In early 2016, heating and air conditioning manufacturer Carrier Corporation announced that it would move over 2,000 jobs from plants in Indiana to Mexico. Then, shortly after the 2016 presidential election, Carrier announced that it would keep more than 1,000 of those jobs in Indiana, citing financial incentives from Indiana and the possibility of pro-business policies under the Trump administration. In May 2017, Carrier announced that it would begin laying off hundreds of workers from those same plants, and the layoffs are slated to begin as early as tomorrow. American Oversight seeks to understand what role the Trump administration played—if any—in Carrier’s series of decisions regarding whether to eliminate jobs from its facilities in Indiana. Requested Records American Oversight requests that your agency produce the following within twenty business days: 1) All communications with United Technologies Corporation, Carrier Corporation, or anyone acting on their behalf regarding (a) United Technologies Corp. or Carrier Corp.’s consideration of whether to shift jobs from Indiana to Mexico or any other location, or (b) any decision by either of those companies to move or not move jobs out of Indiana. 2) All communications with anyone in the office of the Indiana Governor (whether Mike Pence or Eric Holcomb) regarding (a) the possibility that United Technologies Corp. or Carrier Corp. might move jobs from Indiana to Mexico or any other location, or (b) any decision by either of those companies to move or not move jobs out of Indiana. 3) All communications with any member of Congress or congressional 3) All communications with any member of Congress or congressional staff regarding (a) the possibility that United Technologies Corp. or Carrier Corp. might move jobs from Indiana to Mexico or any other location, or (b) any decision by either of those companies to move or not move jobs out of Indiana. Please provide all responsive records from November 8, 2016, to the date the search is conducted. In addition to the records requested above, American Oversight also requests records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched and any tracking sheets used to track the processing of this request. If your agency uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they conducted searches, we also request any such records prepared in connection with the processing of this request. American Oversight seeks all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. Our request includes any attachments to these records. No category of material should be omitted from search, collection, and production. Please search all records regarding agency business. You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of official business conducted using unofficial systems or stored outside of official files is subject to the Federal Records Act and FOIA. It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; American Oversight has a right to records contained in those files even if material has not yet been moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations. In addition, please note that in conducting a “reasonable search” as required by law, you must employ the most up-to-date technologies and tools available, in addition to searches by individual custodians likely to have responsive information. Recent technology may have rendered your agency’s prior FOIA practices unreasonable. In light of the government-wide requirements to manage information electronically by the end of 2016, it is no longer reasonable to rely exclusively on custodian-driven searches.Furthermore, reasonable to rely exclusively on custodian-driven searches.Furthermore, agencies that have adopted the National Archives and Records Agency (NARA) Capstone program, or similar policies, now maintain emails in a form that is reasonably likely to be more complete than individual custodians’ files. For example, a custodian may have deleted a responsive email from his or her email program, but your agency’s archiving tools would capture that email under Capstone. Accordingly, American Oversight insists that your agency use the most up-to-date technologies to search for responsive information and take steps to ensure that the most complete repositories of information are searched. American Oversight is available to work with you to craft appropriate search terms. However, custodian searches are still required; agencies may not have direct access to files stored in .PST files, outside of network drives, in paper format, or in personal email accounts. Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information “only if . . . disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” If it is your position that any portion of the requested records is exempt from disclosure, American Oversight requests that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). As you are aware, a Vaughnindex must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.”Moreover, the Vaughn index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information.” Further, “the withholding agency must supply ‘a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’” In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. If it is your position that a document contains nonexempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release. You should institute a preservation hold on information responsive to this request. American Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including litigation if necessary. Accordingly, your agency is on notice that litigation is reasonably foreseeable. To ensure that this request is properly construed, that searches are conducted in an adequate but efficient manner, and that extraneous costs are not incurred, an adequate but efficient manner, and that extraneous costs are not incurred, American Oversight welcomes an opportunity to discuss its request with you before you undertake your search or incur search or duplication costs. By working together at the outset, we can decrease the likelihood of costly and time-consuming litigation in the future. Where possible, please provide responsive material in electronic format by email or in PDF or TIF format on a USB drive. Please send any responsive material being sent by mail to American Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of responsive records to American Oversight, please also provide responsive material on rolling basis. Fee Waiver Request In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 15 C.F.R. § 2004.9(h), American Oversight requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government, and the disclosures will likely contribute to a better understanding of relevant government procedures by the general public in a significant way. Moreover, the request is primarily and fundamentally for noncommercial purposes. American Oversight requests a waiver of fees because disclosure of the requested information is “in the public interest because it is likely to contribute significantly to public understanding” of the operations or activities of the government. The requested records would reveal what efforts the Trump administration has taken—if any—to keep Carrier’s valuable manufacturing jobs in this country, rather than being shifted abroad. The creation and maintenance of jobs in the U.S. market is one of the central drivers of the U.S. economy and a metric on which every administration is judged; the American people deserve to know what steps the Trump administration is taking to achieve that goal and whether (or not) those efforts have been effective. This request is primarily and fundamentally for non-commercial purposes. As a 501(c)(3) nonprofit, American Oversight does not have a commercial purpose and the release of the information requested is not in American Oversight’s financial interest. American Oversight’s mission is to promote transparency in government, to educate the public about government activities, and to ensure the accountability of government officials. American Oversight uses the information gathered, and its analysis of it, to educate the public through reports, press releases, or other media. American Oversight also makes materials it gathers available on its public website and promotes their availability on social media platforms, such as Facebook and Twitter. American Oversight has demonstrated its commitment to the public disclosure of documents and creation of editorial content. For example, after receiving records regarding an ethics waiver received by a senior DOJ attorney, American Oversight promptly posted the records to its website and published an analysis of what the records reflected about DOJ’s process for ethics waivers. As another example, American Oversight has a project called “Audit the Wall,” where the organization is gathering and analyzing information and commenting on public releases of information related to the administration’s proposed construction of a barrier along the U.S.-Mexico border. Accordingly, American Oversight qualifies for a fee waiver. Conclusion We share a common mission to promote transparency in government. American Oversight looks forward to working with your agency on this request. If you do not understand any part of this request, have any questions, or foresee any problems in fully releasing the requested records, please contact Sara Creighton at foia@americanoversight.org or (202) 869-5246. Also, if American Oversight’s request for a fee waiver is not granted in full, please contact us immediately upon making such a determination. Sincerely, Austin R. Evers Executive Director American Oversight Kris Turner, Carrier in Indy, UTEC in Huntington to Move Units to Mexico, Costing 2,100 Jobs, IndyStar (Feb. 12, 2016, 10:42 AM), >>http://www.indystar.com/story/money/2016/02/10/carrier-move-indy-unitmexico-eliminate-1400-jobs/80181804/<<;; Nick Carey, Anger, Resignation as Massive Pay Gap Prompts Carrier’s Mexico Move, Reuters (Feb. 16, 2016, 5:33 PM), >>http://www.reuters.com/article/us-carriercorp-layoffs-idUSKCN0VP2R6<<;. David Shepardson & Ginger Gibson, Carrier to Keep Jobs in U.S. After Trump Offers State Incentives, Huffington Post (Nov. 30, 2016, 7:28 PM), >>http://www.huffingtonpost.com/entry/carrier-jobstrump_us_583f6c49e4b09e21702cb21c<<;; Ted Mann, Carrier Will Receive $7 Million in Tax Breaks to Keep Jobs in Indiana, Wall St. J. (Dec. 2, 2016, 10:10 AM), >>https://www.wsj.com/articles/indiana-gives-7-million-in-tax-breaks-to-keepcarrier-jobs-1480608461<<;. Danielle Paquette, Trump Said He Would Save Jobs at Carrier. The Layoffs Start July 20., Wash. Post, May 24, 2017, >>https://www.washingtonpost.com/news/wonk/wp/2017/05/24/here-is-thenumber-of-jobs-carrier-is-moving-to-mexico-after-trump-said-hed-save-them/? utm_term=.f01b10db4495<<; Harriet Sinclair, Remember the Carrier Jobs Trump ‘Saved’? Company Announces 600 Layoffs Before Christmas, Newsweek (May 23, 2017, 4:11 PM), >>http://www.newsweek.com/carrier-company-where-trump- 2017, 4:11 PM), >>http://www.newsweek.com/carrier-company-where-trumprescued-800-jobs-now-announces-600-layoffs-ahead-614352<<;. Tony Cook & James Briggs, Carrier Lays Off First 300 Employees on Six-Month Anniversary of Trump’s Presidency, IndyStar (July 19, 2017, 2:22 PM), >>http://www.indystar.com/story/news/politics/2017/07/19/carrier-lays-off300-6-month-anniversary-trump-presidency/491205001/<<;. See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149—50 (D.C. Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955—56 (D.C. Cir. 2016). See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016) (“The Government argues that because the agency had a policy requiring [the official] to forward all of his emails from his [personal] account to his business email, the [personal] account only contains duplicate agency records at best. Therefore, the Government claims that any hypothetical deletion of the [personal account] emails would still leave a copy of those records intact in [the official’s] work email. However, policies are rarely followed to perfection by anyone. At this stage of the case, the Court cannot assume that each and every work-related email in the [personal] account was duplicated in [the official’s] work email account.” (citations omitted)). Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28, 2011), >>https://obamawhitehouse.archives.gov/the-pressoffice/2011/11/28/presidential-memorandum-managing-government-records<<;; Office of Mgmt. & Budget, Exec. Office of the President, Memorandum for the Heads of Executive Departments & Independent Agencies, “Managing Government Records Directive,” M-12-18 (Aug. 24, 2012), >>https://www.archives.gov/files/records-mgmt/m-12-18.pdf<<;. FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185). Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). King v. U.S. Dep’t of Justice, 830 F.2d 210, 223—24 (D.C. Cir. 1987) (emphasis in original). Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). Mead Data Central, 566 F.2d at 261. 15 C.F.R. § 2004.9(h)(1)(i)-(iii). See, e.g., John W. Schoen, FINAL REPORT CARD: Here’s How Many Jobs Were Created Under Obama, CNBC (Jan. 6, 2017, 4:17 PM), >>http://www.cnbc.com/2016/07/18/obamas-record-on-jobs-versus-fiveother-presidents.html<<;. 15 C.F.R. § 2004.9(h)(1)(iv). American Oversight currently has over 11,100 page likes on Facebook, and over 33,300 followers on Twitter. American 33,300 followers on Twitter. American Oversight, Facebook, >>https://www.facebook.com/weareoversight/<<; (last visited July 17, 2017); American Oversight (@weareoversight), Twitter, >>https://twitter.com/weareoversight<<; (last visited July 17, 2017). Vetting the Nominees: Solicitor General Nominee Noel Francisco, American Oversight, >>https://www.americanoversight.org/our-actions/vetting-nomineessolicitor-general-nominee-noel-francisco<<;. Francisco & the Travel Ban: What We Learned from the DOJ Documents, American Oversight, >>https://www.americanoversight.org/news/francisco-travel-banlearned-doj-documents<<;. Audit the Wall, American Oversight, >>www.auditthewall.org<<.