From: Subject: Date: To: Cc: Ricker, Monique T. EOP/USTR Monique_T_Ricker@ustr.eop.gov USTR Final Response to an American Oversight FOIA Request: MULTI-18-0194-0219 (USTR FOIA No. FY18-121) August 20, 2018 at 11:45 AM 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. FY18-121 submitted on March 29, 2018 requesting “all communications by political appointees containing any of the following terms: Holdover*, Turncoat*, Leak*, Troublemaker*, “Deep state,” Embed*, Burrow*, “Clean* house,” Clean*, Loyal*, Purge*, Cheerleader*, Sabotage, “Obama person”, “Obama people”, Anti-Trump, Undermin*, Plant*, or Mole*.” The timeframe for the search was between January 20, 2017 and April 2, 2018. After a search of our files utilizing eDiscovery software, we have located two responsive emails totaling three pages which we are releasing in part. We redacted the contact information of non-USTR employees and personal email addresses pursuant to Exemption 6, which protects personal information the release of which would not shed light on the performance of the agency's statutory duties. We highlighted the relevant search terms for your reference. This constitutes a complete response to your request. You may contact me or my colleague Melissa Keppel by email at FOIA@ustr.eop.gov or 202-395-3419 for any 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 202-7415770; toll free at 1-877-684-6448; 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, GSD/RDF; ATTN: Janice Kaye, 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: American Oversight FOIA Sent: Thursday, March 29, 2018 12:38 PM To: FN-CEQ-efoia ; FN-OSTP-OSTPFOIA ; FN-USTR-FOIA Subject: [EXTERNAL] FOIA Request: MULTI-18-0194-0219 Dear FOIA Officers: Below please find the pasted text of a letter requesting information under the Freedom of Information Act. The original letter is also attached to this email. Sincerely, Sara Kaiser Creighton Counsel American Oversight foia@americanoversight.org 202.869.5245 >www.americanoversight.org< @weareoversight FOIA: MULTI-18-0194-0219 March 29, 2018 VIA ELECTRONIC MAIL AND ONLINE PORTALS Alexis Graves U.S. Department of Agriculture 1400 Independence Avenue SW Room 428-W, Whitten Building Washington, DC 20250-0706 USDAFOIA@ocio.usda.gov Michael Toland, Ph.D. Departmental FOIA Officer Office of Privacy and Open Government U.S. Department of Commerce 14th and Constitution Avenue NW Mail Stop 52010FB Washington, D.C. 20230 Via FOIAOnline Council on Environmental Quality Freedom of Information Officer 722 Jackson Place NW Washington, DC 20503 efoia@ceq.eop.gov --------- U.S. Citizenship and Immigration Services National Records Center FOIA/PA Office P.O. Box 648010 Lee’s Summit, MO 64064-8010 uscis.foia@uscis.dhs.gov OSD/JS FOIA Requester Service Center Chief, Ms. Stephanie Carr Office of Freedom of Information Office of Freedom of Information U.S. Department of Defense 1155 Defense Pentagon Washington, DC 20301-1155 whs.mc-alex.esd.mbx.osd-js-foia-requester-service-center@mail.mil U.S. Department of Education ATTN: FOIA Public Liaison Office of Management Office of the Chief Privacy Officer 400 Maryland Avenue SW, LBJ 2E320 Washington, DC 20202-4536 EDFOIAManager@ed.gov FOIA Requester Service Center U.S. Department of Energy 1000 Independence Avenue SW Mail Stop MA-46 Washington, DC 20585 foia-central@hq.doe.gov Records, FOIA, and Privacy Branch Office of Environmental Information U.S. Environmental Protection Agency 1200 Pennsylvania Avenue NW (2822T) Washington, DC 20460 Via FOIAOnline FEMA Information Management Division FOIA Request 500 C Street SW, Mailstop 3172 Washington, DC 20472 fema-foia@fema.dhs.gov U.S. General Services Administration FOIA Requester Service Center (H1F) 1800 F Street NW, Room 7308 Washington, DC 20405-0001 Via FOIAOnline Michael Marquis Freedom of Information Officer Department of Health and Human Services Hubert H. Humphrey Building, Room 729H 200 Independence Avenue SW Washington, DC 20201 FOIARequest@hhs.gov The Privacy Office U.S. Department of Homeland Security 245 Murray Lane SW STOP-0655 Washington, D.C. 20528-0655 foia@hq.dhs.gov Freedom of Information Act Office U.S. Department of Housing and Urban Development 451 7th Street SW, Room 10139 Washington, DC 20410-3000 Via Online Portal U.S. Immigration and Customs Enforcement Freedom of Information Act Office 500 12th Street SW, Stop 5009 Washington, DC 20536-5009 ICE-FOIA@dhs.gov Clarice Julka Office of the Secretary U.S. Department of the Interior MS-7328, MIB 1849 C Street, NW Washington, DC 20240 os_foia@ios.doi.gov FOIA/PA Mail Referral Unit U.S. Department of Justice Room 115 LOC Building Washington, DC 20530-0001 MRUFOIA.Requests@usdoj.gov Office of the Solicitor Division of Management and Administrative Legal Services U.S. Department of Labor 200 Constitution Avenue NW Room N-2420 Washington, DC 20210 foiarequests@dol.gov Kathy Ray U.S. Department of Transportation 1200 New Jersey Avenue SE W94-122 Washington, DC 20590 ost.foia@dot.gov FOIA Request FOIA Request Department of the Treasury Washington, DC 20220 treasfoia@treasury.gov U.S. Department of Veterans Affairs 810 Vermont Avenue NW (005R1C) VACO Washington, DC 20420 vacofoiaservice@va.gov FOIA Officer Office of Management and Budget 1800 G Street NW Washington, DC 20503 OMBFOIA@omb.eop.gov FOIA Officer Office of Science and Technology Policy 1650 Pennsylvania Avenue NW Washington, DC 20504 ostpfoia@ostp.eop.gov USTR FOIA Office, GSD/RDF Attn: Chief FOIA Officer, Janice Kaye Office of the U.S. Trade Representative Anacostia Naval Annex, Bldg. 410/Door 123, 250 Murray Lane SW Washington, DC 20509 FOIA@ustr.eop.gov Office of FOIA Services Securities and Exchange Commission 100 F Street NE Washington, DC 20549-2736 Via Online form Chief, FOIA/Privacy Act Office U.S. Small Business Administration 409 3rd Street SW, 8th Floor Washington, DC 20416 Via FOIAOnline U.S. Department of State Office of Information Programs and Services A/GIS/IPS/RL SA-2, Suite 8100 Washington, DC 20522-0208 FOIArequest@state.gov Re: Freedom of Information Act Request Re: Freedom of Information Act Request Dear Freedom of Information Officers: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and your agency’s implementing regulations, American Oversight makes the following request for records. The records requested herein may reside in multiple components or offices within your agency. We ask that you coordinate this request across your agency in your role as the agency’s FOIA contact. Politico recently reported that conservative activists and high-level Trump administration officials expressed concern about the “loyalty” of career civil servants at the State Department, and even explored ways to “purge” some of those career employees from their positions.[1] American Oversight seeks to determine whether similar conversations occurred at other agencies. Requested Records American Oversight requests that your agency produce the following within twenty business days: All communications by political appointees containing any of the following terms: 1) Holdover(s) 2) Turncoat(s) 3) Leak* 4) Troublemaker(s) 5) “Deep state” 6) Embed* 7) Burrow* 8) “Clean* house” 9) Cleans* 10) Cleaning 11) Loyal* 12) Purge* 13) Cheerleader(s) 14) Sabotage 15) “Obama person” 16) “Obama people” 17) Anti-Trump 18) Undermin* 19) Plant* 20) Mole* The use of the * symbol is intended to indicate that the agency will search for variations on that word containing any subsequent combination of letters, such that the search for “leak*” would return instances of leak, leaks, leaker, leaked, leaking, etc. American Oversight seeks all records from January 20, 2017, 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 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.[2] 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.[3] 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.[4] 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.”[5] 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 Vaughn index 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.”[6] 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.”[7] 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.’”[8] 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 non-exempt 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.[9] 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. 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, you are 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, 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, American Oversight hopes to decrease the likelihood of costly and timeconsuming 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 a rolling basis. Fee Waiver Request In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and your agency’s implementing regulations, 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 public understanding of those operations. Moreover, the request is primarily and fundamentally for non-commercial 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 activities of the government. The disclosure of the information sought under this request will document and reveal the operations of the federal government, including how officials conduct the public’s business. An independent civil service is vital to the functioning of our democratic system, in which leadership changes hands as often as every four years, but the work of the people must continue unabated throughout those transitions of power. The prospect of politically motivated firings of career employees is very troubling. Indeed, the recent reporting by Politico described above resulted in an inquiry by Elijah Cummings, the Ranking Member of the House Committee on Oversight and Government Reform, to evaluate the scope of this problem.[10] The public deserves to know the extent to which the Trump administration is politicizing even career civil service jobs. This request is primarily and fundamentally not for commercial purposes, but rather the primary interest is in public disclosure of responsive records. As a 501(c)(3) nonprofit, American Oversight does not is in public disclosure of responsive records. 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.[11] 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,[12] 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. [13] 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.[14] 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 me at foia@americanoversight.org or (202) 869-5245. 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, ·. , y . Sara Kaiser Creighton Counsel American Oversight [1] Nahal Toosi, Emails Reveal Conservative Alarm Over ‘Obama Holdovers’ in Trump Administration, POLITICO (Mar. 15, 2018, 12:28 PM), >https://www.politico.com/story/2018/03/15/emails-trump-administration-alarm-over-obamaholdovers-465528<. [2] 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). [3] 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)). [4] Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28, 2011), >https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidentialmemorandum-managing-government-records<; Office of Mgmt. & Budget, Exec. Office of the 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<. [5] FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185). [6] Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). [7] King v. U.S. Dep’t of Justice, 830 F.2d 210, 223–24 (D.C. Cir. 1987) (emphasis in original). [8] 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)). [9] Mead Data Central, 566 F.2d at 261. [10] See Letter from Elijah E. Cummings, Ranking Member, Comm. on Oversight and Gov’t Reform et al., to John F. Kelly, Chief of Staff, White House, et al. (Mar. 15, 2018), >https://democratsoversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2018-0315.EEC%20EEngel%20to%20WH%20%26%20State.pdf<. [11] American Oversight currently has approximately 11,800 page likes on Facebook and 41,600 followers on Twitter. American Oversight, FACEBOOK, >https://www.facebook.com/weareoversight/< (last visited Mar. 27, 2018); American Oversight (@weareoversight), TWITTER, >https://twitter.com/weareoversight< (last visited Mar. 27, 2018). [12] DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT, >https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance<. [13] Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN OVERSIGHT, >https://www.americanoversight.org/francisco-the-travel-ban-what-we-learnedfrom-the-doj-documents<. [14] Audit the Wall, AMERICAN OVERSIGHT, >https://www.americanoversight.org/investigation/audit-the-wall<. USTR FOIA No. FY18-1…ted.pdf AMERICAN OPIC Boardof DirectorsMeeting From: (b) (6) "Roberts, Karen" ~@opic.gov> To: "Vaughn, Stephen P. EOP/USTR" Date: Tue, 07 Feb 201714:28:53 -0500 Hi Stephen, It is nice to make your acquaintance . I'm Karen Roberts - White House Senior Advisor and White House Liaison for the Overseas Private Investment Corporation . I'm writing to see if we can touch base about OPIC's upcoming Board of Directors meeting . OPIC is a government corporation with a governing board and USTR holds one of the three statutory positions on that board. The Board consists of 8 private sector appointees (holdover appointees from the last Administration) and 7 public sector appointees (currently from USAID, USTR, DOL, State, Commerce, and Treasury) . OPIC's next Board Meeting will be held March 16 from 2-4pm here at OPIC (1100 New York Avenue, NW, Washington, DC) and we want to ensure that the Acting US Trade Rep has the meeting on his/her calendar and receives background information on the projects being presented to the Board for approval. Your Acting US Trade Rep can designate someone else in the agency if March 16 does not work for them. Can you please help me identify the name and contact information for the current Acting U.S. Trade Representative and his/her Acting Chief of Staff? As well, can you please send me your cell phone number? I'd be happy to speak with you to provide you with additional background information the upcoming Board Meeting. on OPIC and/or Thank you very much for your assistance. Karen Karen Jones Roberts Senior Advisor, Office of the President OVERSEAS PRIVATE INVESTMENT CORPORATION (OPIC) The U.S. Government'sDevelopmentRnanceInstitution 1100 New York Ave, NW I Washington DC 20527 (b) (6) ~ (b) (6) (b) (6) I~ I~ I www.opic.gov I twitter.com/opicgov OPlCopicgov USTR-18-0216-A-000001 FW: ScheduleC employeesmay be out of workthisweek, do you have a comment? From (b) (6) To: (b) (6) "Strom, Natalie M. EOP/WHO" ~@who.eop.gov> Date: Mon, 22 May 2017 12:31:06-0400 Fyi , for whomever in your office is handling this topic. Although it appears this guy already posted something on May 17 before contacting Payne: https ://medium. com/ @Cemovich /may-massacre-johnny-destefano-to-purge-trump-supporters-on-may-22nd2c00b57 e4 l 8c -----Original Message----From: Griffin , Payne P. EOP/USTR Sent: Monday , May 22, 2017 11:57 AM To: Davis , Emily K. EOP/USTR Subject: FW: Schedule C employees may be out of work this week , do you have a comment? FYI , Sent to my personal. I am not replying From: Payne Griffin [mailto:~gmail.com] (b) (6) Sent: Monday , May 22, 2017 11 :55 AM To: Griffin , Payne P. EOP/USTR Subject: Fwd: Schedule C employees may be out of work this week , do you have a comment? ---------- Forwarded message ---------From: "Michael Cemovich" ~(b) (6) @gmail.com > Date: May 18, 2017 8:58 PM Subject: Schedule C employees may be out of work this week , do you have a comment ? To: "Cemovich" <-(b) (6) @gmail.com > Cc: Hi , I'm writing a story about personnel policies in the Trump administration , and in particular how the director of presidential personnel , Johnny DeStefano , is handling personnel and staffing. It has come to my attention that as few as 15% of Schedule C employees will be given permanent positions. Over thirty people have expressed their concerns with me. They don't know if they will have a job next week. The mainstream media hasn't reported on this development , which should be huge , and some believe this is because DeStefano is deliberately stalling the hiring process in order to favor "Never Trumpers. " We want figure out what is happening for my upcoming story on hiring within the Trump administration. You may offer your comments anonymously via this Google fonn: USTR-18-0216-A-000002 >https://goo.gl/fonns /