CAUSE 



Pursuing Freedom Opportunity through Justice 8r Accountability?

July 19, 2018
VIA FOIAonline

US. Environmental Protection Agency

National Freedom of Information Of?ce

Mr. Steve Fine, Acting Chief Information Of?cer
1200 Avenue, (2822T)

\V?ashington, DC. 20460

Re: Freedom of Information Act Request
Dear Mr. Fine:

I write on behalf of Cause of Action Institute Institute?), a nonpro?t strategic
oversight group committed to ensuring that government decision?making is open, honest, and fair.1
In carrying out its mission, Institute uses investigative and legal tools to educate the public
about the importance of government transparency and accountability.

Recent reports have revealed that the Environmental Protection Agency maintains
a so-called ?sensitive review? process for ?politically charged? Freedom of Information Act
requests.2 This particular type of FOIA politicization was the subject of a June 11, 2018
congressional records request from Ranking Member Elijah Cummings of the US. House of
Representatives Committee on Oversight and Government Reform It was also the
impetus for Ranking Member Cumming?s subsequent request for OGR Chairman Trey Gowdy to
issue a subpoena against the EPA to compel the disclosure of various records concerning the
agency?s FOIA procedures.4 Although ?sensitive review??including the heightened scrutiny of
FOIA requests from news media requesters and the pre-disclosure review of potentially
embarrassing records by political appointees?are not new phenomena,5 these practices continue to
raise questions of fundamental fairness and impartial administration of the OIA.

 

1 See CAUSE OF ACTION about (last visited July 19, 2018).

2 See EPA Cbiy' of ta? desm'be: ageag?: sensitive review pmceu for ?jbolilicalb' tbage FOLA requertt, COA INST. (July 16, 2018),
see alto Timothy Cama, Top Dem: EPA .rlolved polilically cbarged? FOIA realm-tr, THE HILL
(July 13, 2018), Alex Guill?n, EPA clam: down on document reqaem' linked to Pmi?, POLITICO
(May 6, 2018); see generally Politiar Cloading of tbe Heigbtenea' Semi?ve Review FOIA Pmcea'um, COA INST.
(hiay 14, 2018), coainst.org/ 2152x1q.

3 Letter from Hon.  E. Cummings,  Member, U.S. H.R. Oversight 8c Gov?t Reform Comm., to Hon. Scott
Pruitt, Adm?r, Envtl. Prot. Agency (June 11, 2018), available at http: bit.ly/ 2L61E61.

4 Letter from Hon. Elijah E. Cummings, Ranking lVIember, U.S. Oversight Gov?t Reform Comm., to Hon. Trey
Gowdy, Chairman, U.S. H.R. Oversight Gov?t Reform Comm. (July 13, 2018), available at 

5 See, eg., Eliana Johnson, Tbe Obama Adminicma?on?: Nev/b! Polilical A?p?pmarb to FOIAJ, REV. Oune 9, 2015),
http: 

1875 EYE STREET, NW 0 800 0 WASHINGTON, DC 20006 202.499.4232 0 

 

A 501(c)(3) NONPROFIT CORPORATION

EPA FOIA
July 19, 2018
Page 2
Pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), CoA Institute
requests access to following agency records6:
1. All records, including but not limited to communications, memoranda, guidelines,
procedures, processing metrics, and tracking tables, concerning “sensitive review” FOIA
processes, including any process for the handling of “politically charged” requests or those
submitted by representatives of the news media. The scope of this item includes records
defining or describing the sensitive review process. The time period for this item of the
request is January 20, 2009 to the present.7
2. All records concerning the establishment of the EPA’s “FOIA Expert Assistance Team”
(“FEAT”), including any internal directives or memoranda (including FEAT’s “Functional
Statement”), and related inter-governmental communications.8 The time period for this item
of the request is January 1, 2013 through December 31, 2013.
3. To the extent not already covered by Item One, all communications between any member of
FEAT and any senior EPA official concerning an incoming FOIA request or the review of
agency records responsive to a FOIA request. The time period for this item of the request is
January 2013 to the present.
4. All communications between (i) the EPA’s Office of Environmental Information and/or
Office of General Counsel, and (ii) the Office of the White House Counsel concerning the
processing of FOIA requests containing “White House equities.”9 The time period for this
item of the request is January 20, 2016 to the present. The scope of this item includes
FEAT records concerning White House FOIA consultation.
5. All communications between (i) the EPA Office of Environmental Information and/or
Office of General Counsel and (ii) the EPA Office of Inspector General concerning any
audit, investigation, inspection, evaluation, or inquiry into the involvement of non-career
officials in the FOIA process (e.g., reviewing or approving proposed FOIA productions, etc.).
The time period for this item of the request is September 1, 2015 to the present.

For purposes of this request, the term “record” means the entirety of the record any portion of which contains
responsive information. See Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667, 677
(D.C. Cir. 2016) (admonishing agency for withholding information as “non-responsive” because “nothing in the statute
suggests that the agency may parse a responsive record to redact specific information within it even if none of the
statutory exemptions shields that information from disclosure”).

6

The term “present” should be construed as the date on which the EPA begins its search for responsive records.
See Pub. Citizen v. Dep’t of State, 276 F.3d 634 (D.C. Cir. 2002).

7

See generally Letter from Kevin S. Minoli, Principal Deputy Gen. Counsel, Envtl. Prot. Agency, to Hon. Elijah E.
Cummings, Ranking Member, U.S. H.R. Oversight & Gov’t Reform Comm. (July 15, 2018), available at
http://bit.ly/2LmANiR.
8

9 See White House FOIA Obstruction, COA INST., http://bit.ly/2r0hBub (last visited July 19, 2018); see also Mem. from
Gregory Craig, Counsel to the President, The White House, to All Exec. Dep’t & Agency Gen. Counsels regarding
Document Requests (Apr. 15, 2009), available at https://coainst.org/2uz2NWT.

 EPA FOIA
July 19, 2018
Page 3
Request for a Public Interest Fee Waiver
CoA Institute requests a waiver of any and all applicable fees. The FOIA requires the EPA
to furnish the 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 understanding of the
operations or activities of the government and is not primarily in the commercial interest of the
requester.”10
In this case, the requested records will unquestionably shed light on the “operations or
activities of the government,” namely, the EPA’s policies for handling “sensitive” or “politically
charged” FOIA requests. Such “sensitive review” FOIA processes have led to impermissible
politicization at other agencies, and they have prompted multiple congressional investigations and
FOIA lawsuits.11 The public has a right to view these records. Disclosure is likely to “contribute
significantly” to public understanding because, to date, the records have not been made publicly
available. CoA Institute intends to educate the interested public about the processing of “sensitive”
FOIA requests at the EPA.
CoA Institute has the intent and ability to make the results of this request available to a
reasonably broad public audience through various media. CoA Institute staff has considerable
experience and expertise in other areas of government oversight, investigative reporting, and federal
public interest litigation. Its professionals will analyze the information responsive to this request,
use their editorial skills to turn raw materials into a distinct work, and intend to share the resulting
analysis with the public, whether through CoA Institute’s regularly published online newsletter,
memoranda, reports, or press releases.12 Additionally, CoA Institute is a non-profit organization as
defined under Section 501(c)(3) of the Internal Revenue Code and, accordingly, it has no
commercial interest in making this request.
Request to Be Classified as a Representative of the News Media
For fee purposes, CoA Institute also qualifies as a “representative of the news media.”13 As
the D.C. Circuit has held, the “representative of the news media” test is properly focused on the
requestor, not the specific request at issue. 14 CoA Institute satisfies this test because it 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. Although it is not required
5 U.S.C. § 552(a)(4)(A)(iii); 40 C.F.R. § 2.107(1)(l); see also Cause of Action v. Fed. Trade Comm’n, 799 F.3d 1108, 1115–19
(D.C. Cir. 2015) (discussing proper application of public-interest fee waiver test).

10

See, e.g., Johnson, supra note 5; COA INST., GRADING THE GOVERNMENT: HOW THE WHITE HOUSE TARGETS
DOCUMENT REQUESTERS (Mar. 18, 2014), available at http://coainst.org/2AEWiE2; see also DHS Watchdog Claims Political
Appointees No Longer Politicizing FOIA, COA INST. (Oct. 20, 2017), http://coainst.org/2j9dbT7; CIA too busy for
transparency, COA INST. (Aug. 11, 2016), http://coainst.org/2iDH0qO; White House and Treasury Department Politicize
FOIA, COA INST. (June 24, 2013), http://coainst.org/2A4igPr; FOIA Follies: HUD Flags Sensitive Freedom of Information
Act Requests for Extra Scrutiny; Political Appointees Involved, COA INST. (July 31, 2013), http://coainst.org/2kbV4Ix.
11

12 See Cause of Action, 799 F.3d at 1125–26 (holding that public interest advocacy organizations may partner with others to
disseminate their work).
13

5 U.S.C. § 552(a)(4)(A)(ii)(II); 40 C.F.R. § 2.107(b)(6).

14

See Cause of Action, 799 F.3d at 1121.

 EPA FOIA
July 19, 2018
Page 4
by the statute, CoA Institute gathers the news it regularly publishes from a variety of sources,
including FOIA requests, whistleblowers/insiders, and scholarly works. CoA Institute does not
merely make raw information available to the public, but rather distributes distinct work product,
including articles, blog posts, investigative reports, newsletters, and congressional testimony and
statements for the record. 15 These distinct works are distributed to the public through various
media, including CoA Institute’s website, Twitter, and Facebook. CoA Institute also provides news
updates to subscribers via e-mail.
The statutory definition of a “representative of the news media” contemplates that
organizations such as CoA Institute, which electronically disseminate information and publications
via “alternative media[,] shall be considered to be news-media entities.”16 In light of the foregoing,
numerous federal agencies have appropriately recognized CoA Institute’s news media status in
connection with its FOIA requests.17
Record Preservation Requirement
CoA Institute requests that the disclosure officer responsible for the processing of this
request issue an immediate hold on all records responsive, or potentially responsive, to this request,
so as to prevent their disposal until such time as a final determination has been issued on the request
and any administrative remedies for appeal have been exhausted. It is unlawful for an agency to
destroy or dispose of any record subject to a FOIA request.18

COA INST., EVADING OVERSIGHT: THE ORIGINS AND IMPLICATIONS OF THE IRM CLAIM THAT ITS RULES DO NOT
HAVE AN ECONOMIC IMPACT (2018), http://coainst.org/2mgpYAu; CoA Inst., Documents Reveal Special Interest Groups
Lobbied HUD for Mortgage Settlement Funds (Aug. 8, 2017), http://coainst.org/2yLaTyF; CoA Inst., The GSA Has No
Records on its New Policy for Congressional Oversight Requests (July 26, 2017), http://coainst.org/2eHooVq; COA INST.,
SENSITIVE CASE REPORTS: A HIDDEN CAUSE OF THE IRS TARGETING SCANDAL (2017), http://coainst.org/2y0fbOH;
COA INST., INVESTIGATIVE REPORT: PRESIDENTIAL ACCESS TO TAXPAYER INFORMATION (2016),
http://coainst.org/2d7qTRY; James Valvo, There is No Tenth Exemption (Aug. 17, 2016), http://coainst.org/2doJhBt;
CoA Inst., CIA too busy for transparency (Aug. 11, 2016), http://coainst.org/2mtzhhP; Hearing on Watchdogs Needed: Top
Government Investigator Positions Left Unfilled for Years Before the S. Comm. on Homeland Sec. & Gov’t Affairs, 114th Cong. (June
3, 2015) (statement of Daniel Z. Epstein, Cause of Action Inst.), http://coainst.org/2mrwHr1; COA INST., 2015
GRADING THE GOVERNMENT REPORT CARD (2015), http://coainst.org/2as088a; Hearing on Potential Reforms to the
Freedom of Information Act (FOIA) Before the H. Comm. on Oversight & Gov’t Reform, 114th Cong. (Feb. 27, 2015) (statement
of Daniel Z. Epstein, Exec. Dir., Cause of Action Inst.), http://coainst.org/2lLsph8; Cause of Action Launches Online
Resource: ExecutiveBranchEarmarks.com (Sept. 8, 2014), http://coainst.org/2aJ8sm5; COA INST., GRADING THE
GOVERNMENT: HOW THE WHITE HOUSE TARGETS DOCUMENT REQUESTERS (2014), http://coainst.org/2aFWxUZ; see
also CoA Institute, Newsletters, http://causeofaction.org/media/news/newsletter/.
15

16

5 U.S.C. § 552(a)(4)(A)(ii)(II).

See, e.g., FOIA Request F-133-18, U.S. Agency for Int’l Dev. (Apr. 11, 2018); FOIA Request 18-HQ-F-487, Nat’l
Aeronautics & Space Admin. (Apr. 11, 2018); FOIA Request 1403076-000, Fed. Bureau of Investigation (Apr. 11, 2018);
FOIA Request 201800050F, Exp.-Imp. Bank (Apr. 11, 2018); FOIA Request 2016-11-008, Dep’t of the Treasury (Nov.
7, 2016); FOIA Requests OS-2017-00057 & OS-2017-00060, Dep’t of Interior (Oct. 31, 2016); FOIA Request 201700497, Office of Personnel Mgmt. (Oct. 21, 2016); FOIA Request 092320167031, Ctrs. for Medicare & Medicaid Servs.
(Oct. 17, 2016); FOIA Request 17-00054-F, Dep’t of Educ. (Oct. 6, 2016); FOIA Request DOC-OS-2016-001753,
Dept. of Commerce (Sept. 27, 2016); FOIA Request 2016-366-F, Consumer Fin. Prot. Bureau (Aug. 11, 2016); FOIA
Request F-2016-09406, Dept. of State (Aug. 11, 2016).
17

See 36 C.F.R. § 1230.3(b) (“Unlawful or accidental destruction (also called unauthorized destruction) means . . .
disposal of a record subject to a FOIA request, litigation hold, or any other hold requirement to retain the records.”);

18

 EPA FOIA
July 19, 2018
Page 5
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 a certain portion of responsive records can be
produced more readily, CoA Institute requests that those records be produced first and 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) 4994232 or by e-mail at ryan.mulvey@causeofaction.org. Thank you for your attention to this matter.
Sincerely,
____________________________
RYAN P. MULVEY
COUNSEL

Chambers v. Dep’t of the Interior, 568 F.3d 998, 1004–05 (D.C. Cir. 2009) (“[A]n agency is not shielded from liability if it
intentionally transfers or destroys a document after it has been requested under the FOIA or the Privacy Act.”); Judicial
Watch, Inc. v. Dep’t of Commerce, 34 F. Supp. 2d 28, 41–44 (D.D.C. 1998).