May 19, 2015

VIA E-MAIL
Hon. Jason Chaffetz, Chairman
Committee on Oversight & Government Reform
U.S. House of Representatives
2157 Rayburn House Office Building
Washington, D.C. 20515-6143
E-mail: foia@mail.house.gov
Re:

Response to May 8, 2015 Letter Obstacles with FOIA

Dear Chairman Chaffetz:

I write on behalf of Cause of Action, a non-profit, nonpartisan strategic oversight group
committed to ensuring that the regulatory process is transparent, fair, and accountable.1 Cause of
Action uses various investigative and legal tools to educate the public about the importance of
government transparency and accountability, including the Freedom of Information Act,
5 U.S.C. 552 (FOIA).
While Cause of Action has filed hundreds of FOIA requests and dozens of lawsuits against
the federal bureaucracy,2 our vigilant advocacy for greater transparency does not take for granted the
enormous power that the law provides to citizens and interest groups to hold their government
accountable. As congressional oversight scholars like Duke University law professor Mathew
McCubbins have argued, statutes, like FOIA, which provide members of the public with judicial
review of agency infractions against them, reflect Congresss preferred form of oversight:
empowering whistleblowers, constituents, and interest groups to engage in citizen oversight and to
share information with their elected representatives.3 For these scholars, agency violations of FOIA
1

CAUSE OF ACTION, http://www.causeofaction.org (last visited May 12, 2015).

Since Cause of Action was founded in 2011, it has filed over 250 FOIA requests seeking records and information from
over 75 different Federal agencies. In 2014 alone, Cause of Actions lawyers and investigators filed nearly 100 FOIA
requests on a myriad of topics of pressing public concern. Of the nearly 100 FOIA requests filed by Cause of Action in
2014, approximately fifteen (15) of them resulted in agency production(s) of responsive documents, eleven (11) were
closed as having no responsive records, sixty-two (62) have been acknowledged but are still pending or in litigation,
and five (5) resulted in a failure of the agency to respond or a refusal to comply due to Glomar, an unreasonable
description of records sought, or some alleged administrative flaw. In only a limited number of instances did agencies
produce further records on appeal or overturn initial determinations about fee status or public interest fee waivers. Cause
of Action is currently a party litigant in six (6) separate FOIA lawsuits pending in federal courts at the district and
appellate levels. These six lawsuits involve eighteen (18) separate FOIA requests filed with sixteen (16) agencies. (All
of these numbers are approximations as of a certain date, as the status of Cause of Actions pending FOIA requests
change on a regular basis.)
3
See generally Matthew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols
versus Fire Alarms, 28 AMER. J. POL. SCI. 165 (1984).
2

constitute infractions against Congress. I am therefore humbled by the invitation to share Cause
of Actions perspective on the obstacles it has faced when attempting to access agency records
pursuant to FOIA.
Cause of Action has experienced unwarranted delays,4 unreasonable searches,5 excessive
redactions,6 and inappropriate invocations of exemptions/exclusions/other purported privileges;7
the Appendix attached herein provides the administrative record for these and other such
obstacles imposed by agencies. However, I want to focus the Committees attention on two
novel problems in the FOIA process that raise issues central to divided government: White
House Equities8 and the intentional imposition of fees to foreclose access to records by
politically disfavored interest groups or media organizations.9
I.

The White Houses Cooptation of FOIA is Both Unconstitutional and a Statutory

Violation of FOIA.

On April 15, 2009, then-White House Counsel Gregory Craig sent a memorandum to all
Executive Department and Agency General Counsels reminding them that executive agencies
should consult with the White House Counsels Office on all document requests that may
involve documents with White House equities (the Craig Memo).10 The Craig Memo applied
to all documents and records, whether in oral, paper, or electronic form, that relate to
communications to and from the White House, including preparations for such
communications.11 Although the White House has never made the Craig Memo public,12 in
2011, during a hearing you chaired on politicization of FOIA at the Department of Homeland
Security, you became the first person to uncover and publicly question the practice of White
House equities:
4

See Exhibit 1, CoA Bates No. COA-1001 COA-1005 (Cent. Intelligence Agency Request No. F-2013-01843
(May 30, 2013)) (delay of approximately two years).
5
Id. at COA-1006 COA-1011 (Dept of Justice Request No. OIP/13-04722(F) (Aug. 13, 2013)) (agency failed to
produce responsive document until Cause of Action specifically identified document); id. at COA-1012 COA1025 (Consumer Fin. Prot. Bureau Request No. 2014-303-F (Sept. 15, 2014)) (appeal granted on adequacy of search
where agency failed to identify or produce publicly-available responsive document).
6
Id. at COA-1026 COA-1030 (Dept of Ed. Request No. 14-00274-F (Nov. 26, 2013)) (excessive redactions under
Exemption 5, in conjunction with the deliberative process privilege, including full-page redactions); id. at COA1031 COA-1053 (Dept of Commerce Request No. OS-2014-001642 (Nov. 26, 2013)) (withholding all responsive
records under Exemption 5, in conjunction with the deliberative process, attorney-client, and attorney work-product
privileges).
7
Id. at COA-1054 COA-1065 (Fed. Trade Commn Request No. 2014-01217 (July 25, 2014)) (using non-agency
records designation to exclude attachments to communications from Congress); id. at COA-1066 COA-1098 (Fed.
Trade Commn Request No. 2015-00110 (Oct. 30, 2014)) (using Speech or Debate Clause and extensive
withholdings under Exemption 5, in conjunction with the deliberative process privilege).
8
Mark J. Rozell & Daniel Z. Epstein, White House Equities: The New Executive Privilege, 45 PRESIDENTIAL STUD.
Q. 382 (2015).
9
See generally Potential Reforms to the Freedom of Information Act (FOIA): Hearing before the H. Comm. on
Oversight & Govt Reform, 114th Cong. (Feb. 27, 2015) (statement of Daniel Z. Epstein), available at
http://causeofaction.org/assets/uploads/2015/05/Statement-for-the-Record_FOIA_Daniel-Z-Epstein.pdf.
10
Memorandum for All Executive Department and Agency General Counsels (Apr. 15, 2009), available at
http://causeofaction.org/assets/uploads/2013/06/White-House-memo-equities.pdf.
11
Id. (emphasis added).
12
See Presidential Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of
Information Act, 74 Fed. Reg. 4683 (Jan. 21, 2009), available at http://goo.gl/N9EJtL.

Hon. Jason Chaffetz

May 19, 2015
Page 2
Ms. Callahan. The calendars--anything that has White House equities would
require White House review. That is---Mr. Chaffetz. What is a White House equity? What does that mean?
Ms. Callahan. In the circumstances with the Secretarys calendar to the extent that
she was in the White House, or that was a--disclosing some sort of element. This
is a typical process of referring FOIA requests to different departments. It
may be their underlying records. That is a standard process throughout the-Mr. Chaffetz. The other part of that is under the $862 billion stimulus; is that
correct? Is that part of the White House equity? It says Two exceptions
required White House review. Request to see documents about spending
under the $862 billion stimulus law, is that correct?
Ms. Callahan. That is correct.
Mr. Chaffetz. Why? Why does that require a special White House review?
Ms. Callahan. Sir, Im the chief FOIA officer; Im not a policy person in this
area.13
As this testimony revealed, although the Craig Memo purportedly governed only
records relating to communications to or from the White House, the fact that, at one agency,
any request for documents about stimulus spending was subject to White House review
reveals the extent to which the White House Equities policy could be abused in ways
harmful to transparency.
The White House Equities Policy is Unconstitutional
At times, Executive Branch agencies obtain access to records from the other
constitutional branches, including the federal courts and Congress, as well as from the Office of
the President.14 Records of Congress, the President, and the judicial branch are not subject to
13

Why isnt the Department of Homeland Security Meeting the Presidents Standard on FOIA?: Hearing Before the
H. Comm. on Oversight & Govt Reform, 112th Cong. (2011) (emphasis added), available at http://goo.gl/Sup5WF.
14
Extending beyond the established practice of consulting prior to the release of White House-originated records,
the Craig Memo ostensibly requires consultation on all requests of interest to the President. See Exhibit 2, CoA
Bates No. COA-2001 (Request OS-2012-00080 (Dec. 14, 2012)) (regarding e-mails from the Department of the
Interior where criticism of GOP-opposition to the Obama Administration warranted White House review); id. at
COA-2004 (Dept of Treasury Request 2007-02-004 (Apr. 18, 2012)) (regarding records created by the President
before his election); id. at COA-2005 COA-2006 (Dept of Health & Human Servs. Request 2011-0756KG (Oct.
18, 2011)) and (Dept of Energy Request HQ-2012-01643-F (Jan. 11, 2013)) (where there were no responsive
records); id. at COA-2007 (Dept of Def. Request 10-F-0642 (June 19, 2012)) (regarding records without
equities); id. at COA-2008 (E-mail from Seth Greenfeld, Dept of Interior, to Jonathan Su, White House Counsel
(Apr. 12, 2013)) (regarding records from the General Services Administration concerning a controversial bathroom
renovation).

Hon. Jason Chaffetz

May 19, 2015
Page 3
FOIA.15 When these records are obtained by an Executive Branch agency and are requested
through FOIA, the agency either (1) consults with the non-agency owner of the record (who has
the equity) to determine whether that entity seeks to maintain its equities (ownership or
control) over portions of the record, or (2) determines that the record is excluded from FOIA
because it is not an agency record properly within the ownership or control of the FOIA-subject
entity.
However, for the White House to review a record in the ownership and control of a
federal agency (for instance, Department of Homeland Security records on stimulus spending),
and/or to instruct that agency on the applicability or appropriateness of withholdings, redactions,
exemptions and the like, suddenly removes the record from agency control and places it into the
control of the President, who, while not subject to FOIA, is nevertheless able to regulate what the
public (and Congress) is able to access about its government.16 This abuse of Presidential power
strikes at the heart of the Constitutions separation of powers.17
The White House Equities Policy Violates the FOIA Statute
The applicability of the Craig Memo has resulted in significant delay. Cause of Actions
investigation reveals that delays of months and, at times, years, has resulted from White House
review of requests.18 White House consultation also has resulted in delays in the processing of
administrative appeals including one pending for six years19 and productions scheduled as
part of litigation.20 Because White House review of agency records creates unauthorized delay,
agencies subject to such review necessarily violate the statutory requirement under FOIA, 5
U.S.C. 552(a)(3), which requires an agency to make records promptly available to any
person who makes a request for those records.21
15

5 U.S.C. 552 (a)(1), (f)(1).

The involvement of the White House in the release of records is highlighted by an e-mail from former Office of
Management and Budget (OMB) General Counsel Preeta Bansal, who reached out to over forty other agencies to
highlight the need for coordinated White House review of a request from Politico implicating records of ethics
waivers. See Ex. 2, CoA Bates No. COA-2010 (E-mail from Preeta Bansal, Gen. Counsel, Office of Mgmt. &
Budget (Aug. 6, 2009)); see also id. at COA-2012 COA-2013 (E-mails between Thomas Hitter, Office of Mgmt.
& Budget, to Jonathan Su, White House Counsel, showing OMB sought White House clearance on Judicial Watch
request concerning health care legislation); id. at COA-2014 (Dept of Def. Request 10-F-0716 (Oct. 6, 2011))
(Department of Defense apologized for releasing records prematurely).
17
One particularly pernicious aspect of White House equities review is the targeting of media requesters an
expansion of internal sensitive review processes. See, e.g., Cause of Action, FOIA Follies: HUD Flags Sensitive
Freedom of Information Act Requests for Extra Scrutiny; Political Appointees Involved (July 31, 2013),
http://causeofaction.org/hud-flags-sensitive-freedom-of-information-act-requests-for-extra-scrutiny-politicalappointees-involved/; Cause of Action, White House and Treasury Department Politicize FOIA (June 24, 2013),
http://causeofaction.org/white-house-and-treasury-department-politicize-foia/.
18
See Ex. 2, CoA Bates No. COA-2016 (Dept Homeland Sec. Requests 12-0066, 12-0260, 12-0297 (Aug. 14,
2012)) (showing White House delays of nearly six months); id. at COA-2018 COA-2021 (Dept of Justice Request
AG/10-R0095 (Sept. 23, 2013) & FOIA log, and Dept of Justice Request DAG/09-R1005 (Sept. 25, 20113) &
FOIA log)) (evidencing four year delay to coordinate with White House).
19
See id. at COA-2022 (E-mails between Dept of Def. and Mike Gottlieb, White House Counsel).
20
See id. at COA-2025 (E-mails concerning Dept of State production in FOIA lawsuit (Apr. 1-4, 2014)).
21
See, e.g., CAUSE OF ACTION, GRADING THE GOVERNMENT: HOW THE WHITE HOUSE TARGETS DOCUMENT
REQUESTERS (Mar. 18, 2014), available at http://causeofaction.org/assets/uploads/2014/03/Sunshine-Week-Project16

Hon. Jason Chaffetz

May 19, 2015
Page 4
II.

The Intentional Imposition of Fees to Foreclose Access to Records May Chill

Political Speech.

By playing with fee category determinations and public interest fee waivers, agencies
have crippled transparency and obstructed accountability by rewarding friends and punishing
critics. Cause of Actions litigation against the Federal Trade Commission (FTC) illustrates
this politicization of FOIA fee issues.22
On January 13, 2015, Cause of Action, supported by numerous amici from the
transparency community, argued before the United States Court of Appeals for the District of
Columbia Circuit that the FTC improperly denied Cause of Action a public interest fee waiver
and treatment as a news media requester.23 The litigation arose out of a number of FOIA
requests filed by Cause of Action with the FTC between 2011 and 2012 that sought information
on the FTCs new regulations pertaining to social media authors, which Cause of Action asserted
put restrictions on the commercial speech of bloggers.24
Despite this effort, the FTC continuously denied Cause of Action any sort of fee waiver
and refused to recognize it as a news media requestor. In contrast, at the same time, the FTC
granted fee waivers to a myriad of other nonprofit organizations, such as the AFL-CIO, the
Environmental Defense Fund, and the Marin Institute.25 Such unequal treatment can reasonably
be understood as an effort to chill criticism from those opposed to FTCs regulations.26 As
Senator Patrick Leahy once noted:
[E]xperience suggests that agencies are most resistant to granting fee waivers
when they suspect that the information sought may cast them in a less than
flattering light or may lead to proposals to reform their practices. Yet that is
precisely the type of information which the FOIA is supposed to disclose, and
agencies should not be allowed to use fees as an offensive weapon against
requesters seeking access to Government information[.]27

FINAL2.pdf; see also Letter from Cause of Action and 23 Transparency Community Organizations to President
Barack Obama (Sept. 29, 2014) (requesting withdrawal of Craig Memo or further guidance), available at
http://goo.gl/2Q3klT.
22
See generally Press Release, Cause of Action Challenges FTC in Court for Obstructing Transparency (Jan. 13,
2015), available at http://causeofaction.org/cause-action-challenges-ftc-court-obstructing-transparency/.
23
CJ Ciaramella, Watchdog Group Appeals Governments Definition of Media, FREE BEACON (Jan. 15, 2015),
http://goo.gl/r7gXLi.
24
See Exhibit 3, CoA Bates No. COA-3001 COA-3013 (Complaint, Cause of Action v. Fed. Trade Commn, No.
12-850, 2013 U.S. Dist. LEXIS 116791); see also Appendix at COA-A159 COA-A243 (administrative record for
FTC Requests Nos. 2011-01431, 2012-00227, 2012-00687 (Aug. 30, 2011)).
25
CJ Ciaramella, FOIA Follies: Watchdog group sues Federal Trade Commission over FOIA denials, FREE BEACON
(May 25, 2012), available at http://goo.gl/v0Iuen; see also, e.g., Ex. 3, CoA Bates No. COA-3014 COA-3024
(letters granting public interest fee waiver and original FTC Requests Nos. 2009-00778, 2011-00255, 2010-00529).
26
These issues with fee waiver and fee category determinations are not unique to the FTC. See, e.g., Michael
Bastasch, EPA makes information requests more difficult for conservatives, DAILY CALLER (May 14, 2013),
http://goo.gl/4oeZw1.
27
132 Cong. Rec. S14298 (daily ed. Sept. 29-30, 1986) (statement of Sen. Leahy).

Hon. Jason Chaffetz

May 19, 2015
Page 5
III.

Conclusion

Thank you for the opportunity to share the results of Cause of Actions investigations in
the hope of ensuring greater transparency and accountability. If we can provide any additional
information, please feel free to contact me at (202) 499-4232.
Sincerely,

___________________________
DANIEL Z. EPSTEIN
EXECUTIVE DIRECTOR
cc:

Rep. Elijah E. Cummings

Ranking Minority Member

EXHIBIT 1

COA-1001

COA-1002

COA-1003

COA-1004

COA-1005

COA-1006

COA-1007

COA-1008

COA-1009

COA-1010

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

COA-1011

COA-1012

COA-1013

COA-1014

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-1015

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

COA-1016

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-1017

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

COA-1018

COA-1019

COA-1020

COA-1021

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-1022

i 7JO G

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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
2

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

available

at
2

COA-1023

E-..

17(

'

G St- t :\\\'. \\" hin<>t()n,

ac zn:.::2

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
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
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-1024

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

COA-1025

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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

COA-1029

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

COA-1030

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

COA-1031

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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

COA-1034

-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).

COA-1092

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

COA-1093

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-1094

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

COA-1095

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EXHIBIT 2

8/22113

DEPARTMENT OF THE INTERIOR Mail Fv.d: \Nhile House Equities in FOIA Request OS-2012-00080

Keable. Edward <edward.keable@sol-doi.gov>

Fwd: White House Equities in FOIA Request 0 -8 ..2012-00080

1 message
Sat, Apr 13, 2013 at 1:30PM

t<eable, Edward
io: "Dominguez. Daniel"

Forwarded message - - From: Keable, Edward <edward.keable@sol.doi.goV>

Date: Sat. Dec 15, 2012 at 2:22PM
Subject: Fwd: White House Equities in FOIA Request
To: "Green, Jason"

Jason,
This is the third FOIA DOl has with WH equities I referred to in my email to you earlier this week . We are
releasin some documents res
to this
that do not hal. WH
. Not sure of the \()IUme.

Let me know if you

any questions on this one or the two that I made reference to last week.

Thanks,

Ed
- - - Forwarded message - - - From: Clarice Julka <claricejulka@ios.doi.goV>
Date: Fri, Dec 14, 2012 at 1:57PM
Subject: White House Equities in FOIA Request OS-2012-00080
To: Edward Keable <edward.keable@sol.doi.gov.>
Cc: Richard Ha <richard_ha@ios.doi,gov.>

Hi Ed,
We are releasing a partial response to the FOIA request (2012-00080). Richard Ha, the FOIA processor, who
relliewed this one, prepared the below summary . Attached to this email are the six files containing the WH
equities.
Clarice
On December 5, 2011, Buster Johnson, Chairman of the Mohave County Board of Supel\isors, sent a FOIA
requesting seeking "[a]ll email records archived and retained by the DOl from or to the [54 listed] indi\4dual email
addresses dating from January 1, 2009 to the date of this letter and using the word 'withdrawal' in connection with
the words 'Arizona, uranium or Grand Canyon.' .. _This request should be interpreted to include all attachments
as well."
In response, the DOl OS FOIA office located and organized responsive electronic mail from 42 indi\4duals into 42
pdf files, one pdf file for each indi\1dual. Six pdf files had joint DOl-White House records that could be interpreted

COA-2001

1/3

8.122/13

DEPARTMENT OF IHffi

Milil F'Mi: White House Eq llitieS in f:OIA Request OS-201200000

as White House equities. These six pdf files either had electronic mctill sent to, from, or cc'ed White House
officials: or had some discussion of White House activities,

has electronic mall from and to Office of Science and Technology Policy. Executive
and

on uranium withdrawal.
preparation notes with White House officials.

Edward T. Keable

Deputy Solicitor-General Law

Office of the Solicitor

U.S. Department of the Interior

Phone: 202208--4423

Fax: 202-208-5584
edward.l<eable@sol.doi.gov
This e-mail (including attachments) is intended for the use of the individual or entity to vmich it is addressed. It may contain
information that is privileged. confidential, or othem1se protected by applicable law. If you are not the intended recipient, you are
hereby notified that any dissemination, distribution. copying or use of this e-mail or its contents Is strictly prohibited. If you receive
this e-mail in error, please notify the sender immediately and destroy alf copies. Thank you.

Edward T. Keable
Deputy Solicitor-General Law
Office of the Solicitor
U.S. Oepartrnentofthe Interior
Phone: 202-208-4423
Fax: 202-208-5584

edward .keable@sol.doi .gov

This e-mail (including attachments) is intended for tl1e use of the individual or entity to 11.-hich it is addressed. It may contaiiJ.
irlformation that is privileged. confidential. or other'lvise protected by applicable law. If you are not the intended recipient, 'j0$1'
hereby notified that any dissemination, distribution. copying or use of this e-mail or its contents is strictly prohibited. If you i.ijceive
tllis e-mail in error, please notify the sender immediately and destroy all copies. Thank you.

6 attachments

COA-2002

https:!/rnail.goog le.com'lleH/bi185AtiO/?ui=2&ik=c76d12958b&\iev.=pt&as_to= Daniel_J_Domng uez%4!Mho.aop.gooJ'Io2C&as_subset=all&as_date=tod3}&as_w.. .

213

DEPARTMENT OF THE INTERIOR

FYo<.1' White I louse Equities in FOIA Request 05-2012 00000

COA-2003
hl1ps::/mall.google.c01l'Vrmitft)'l85'u'QI?IJ1"'2&k-c76d 12958b&-.1ew=p!&as_to=Dnniel_J__Dorringuez%4CM.ho.eop.gov%2C&a:. subset=all&as_dale"'loda)&as_v...

3fJ

White

UST 000003

White House

COA-2004

HHS0033
COA-2005

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COA-2007
13-L-1252/DOD-OSD/150

GSA.govMall- RE: FOIA

12111/ 13

RE: FOIA
Su, Jonathan
To: Seth Greenfeld- LG <seth.greenfeld@gsa.goV>

Wed, Apr 17, 2013 at 6:27 PM

From: Seth Greenfeld- LG [mailto: seth.greenfeld@gsa.gov]

Sent: Friday, April12, 2013 5:23PM
To: Su, Jonathan
Subject: FOIA

Good afternoon. I was told by our Office of Administratiw Ser.1ces that you wanted to see the FOIA about the
renovations to a bathroom at the Department of Interior. Attached please find the incoming request, a proposed
response from our FOIA Office, and the proposed responslw documents (which are mar1<ed for redaction).

I was also told you wanted to see FOIAs about public affairs officers and West Wing renovations, but those were
already sent to you so I assume someone passing the message along here was confused. If you want to see
those again though, let me know and I can forward them.

Seth S . Greenfeld
Senior Assistant General Counsel
General Law

Office of General Counsel

U.S. General Ser.1ces Administration

(202) -

CONFIDENTIAUTY NOTICE:

This e-mail message and any attachments to this e-mail message may contain confidential information belonging
to the sender which is legally
The information is intended only for the use of the
or entity to

COA-2008

https://mall.google.comtmaillutOI?ui=2&ik=72ff141e2a&oJew=pt&as_from=jalathan_su%40v.tlo.eop.gO\&Is_subset=all&as_v.1 lhin= 1d&search=adv&th=13e1a1bd.. . 1/2

12/11/13

GSA.govMail- RE: FOIA

whom it is addressed. Please do not forward this message without permission. If you are not the intended
recipient or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified
that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this
transmission is strictly prohibited. If you have received this transmission in error, please notify me immediately
by telephone or return e-mail and delete and destroy the original e-mail message, any attachments thereto and
all copies thereof.

COA-2009
https://mail.google.com'mail/u!O/?ui=2&ik=72ff141e2a&\-iew=pt&as_from=jonathan_su%4C!.M10.eop.gov&as_subset=all&as_IMthin=1d&search=adv&th=13e1a1bcl...

2/2

COA-2010

COA-2011

Hitter, Thomas E.
From:
Sent:
To:
Subject:

Hitter, Thomas E.
Friday, July 20, 2012 9:52 AM
Su, Jonathan
FOIA re health care legislation

JonathanIwantedtocheckinonthestatusofthedocumentsresponsivetotheJudicialWatchFOIArequestfor
recordspertainingtothehealthcarelegislation.Doyouthinkwecouldbeinapositiontosendthatresponsesometime
nextweek?

Thanksagainforthehelp.

Tom

COA-2012

Hitter, Thomas E.
From:
Sent:
To:
c:
Subject:
ttachments:

Hitter, Thomas E.
Tuesday, August 0 , 2012 1:22 M
Su, Jonathan
right, Andre
E: Health are FOIA
Judicial atch etter re ised
.doc

JustanFYI.Werescheduledtomakethisproductionlaterthisweek(mostlikelyonThursday).Thedocumentswillbe
sentbyregularmail.Attachedisthecoverletterthatwillaccompanythedocuments.

Pleaseletmeknowifyouhaveanyquestions.

Tom

From: Su, Jonathan

Sent: Thursday, July 26, 2012 8:55 PM
To: Hitter, Thomas E.
Cc: Wright, Andrew
Subject: Health Care FOIA

Hi Tom: We're clear on the health care FOIA. Thanks so much for working with us.
Jonathan

COA-2013

COA-2014
13-L-1252/DOD-OSD/26

COA-2015
13-L-1252/DOD-OSD/27

DHS-001-000041

COA-2016

DHS-001-000042

COA-2017

COA-2018

10-00850

I
Susan Long__

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iJustin Blum

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Transactional Records i
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ALL RECORDS RELATED TO THE JUSTICE DEPARTMENT

REQUEST FbR THE EXTRADITION OF ROMAN POLANSKI
TO THE UNITED STATES

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Requesting a copy ot--=o=Jp"'"s""""'F=o=IA.--counselor logs from February

1, 2007 TO Present

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of any correspondence from members of Congress from

January 20, 2009 to the present regarding the American

iRecovery and Reinvestment Act (the "Stimulus")

--

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oF THE ITINERARY--FOR THE UNITE=D-=s:-::T::-:AT=E=-=s

ATIORNEY GENERAL FOR THE PERIOD OF NOVEMBER 2,
2009 THROUGH NOVEMBER 13, 2009

RECORDS PERTAINING TO THE DETENTION AND

INTERROGATION OF ENEMY COMBATANTS AT
CHARLESTON BRIG

TO 'TiiE PRESENT.

REGARDING THE NUMBER OF REQUESTS TO CLOSE

PROCEEDINGS FROM DOJ OR U.S. ATTORNEYS OFFICE
ATIORNEYS UNDER 28 C.F.R. 50.9 FROM JANUARY 1, 2004

REQUESTING ALL APPOINTMENT CALENDARS AND OTHER

RECORDS REFLECTING PERSONAL VISITS, MEETINGS
AND OTHER CORRESPONDENCE FROM JANUARY 21, 2009
TO THE PRESENT FOR ATIORNEY GENERAL ERIC
i HOLDER, CHIEF OF STAFF KEVIN OHLSON & DEPUTY
. TIORNEY GENERAL DAVID OGDEN

.REQUESTING ALL APPOINTMENT CALENDARS AND OTHER

,RECORDS REFLECTING PERSONAL VISITS, MEETINGS
; AND OTHER CORRESPONDENCE FROM JANUARY 21, 2009
TO THE PRESENT FOR ATIORNEY GENERAL ERIC
I
HOLDER, CHIEF OF STAFF KEVIN OHLSON, & DEPUTY
Devlin Barrett _ _ _ ,Associated_ P_re_ss
_ _ 11/6/2009 0:00---+-Co_m_ple_x__ --+A_TI_ORNEY GENERAL DAVID OGDEN
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Lucy Dalglish

IAG/10R0168 (I<AS)

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A0001241_1.000012

COA-2019

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iAFFAIRS FROM 111/2009. ALSO SEEKS LOGS OF FOIA
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__s___________ _

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- .-----ETHICS WAIVERS O""'R=c=ET""H"""ICS"""AD""VICE REGARDING_----!

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--

;POUTICAL APPOINTEES
COPIESOFATTORNEYGENERALERICHOL"""D""Ec;;R"''S;:--- --

CALENDARS SINCE MAY 11, 2009

--

Records of communications related to the July 28, 2009 press

conference at Philadelphia City Hall, attended by the Attorney
General, the Vice President and others, regarding the
announcement of COPS Grant Awards

-+-------

Records of communications related to the July 28, 2009 press

conference at Philadelphia City Hall, attended by the Attorney
General, the Vice President and others, regarding the
announcement of COPS Grant Awards

----+-----

Records of communications related to the July 28, 2009 press

conference at Philadelphia City Hall, attended by the Attorney
tGeneral, the Vice President and others, regarding the
announcement of COPS Grant Awards

RESUMES FOR PERSONS-APPOINTED AND CONSIDERED FOR APPOINTMENT TO SCHEDULE C POSITIONS, SES

!APPOINTMENTS BACK TO JANUARY 20, 2001

i POSITIONS, AND SENATE CONFIRMED PRESIDENTIAL

REGULATIONS, POLICIES AND GUIDELINES

'A COPY OF THE ATTORNEY GENERAL ERIC-HOLDER'S

CALENDAR FROM JULY 2009
---+R"'"ECORDS CONCERNING STATE SECRETS PRIVILEGE - - -

RECORDS cONCERNING STATE SECRETS PRIVILEGE

REGULATIONS, POLICIES AND GUIDELINES

_ _________ _

:copies of "all internal Department of Justice documents

;pertaining to regulations, policies, and guidelines governing the
of the State Secrets Privilege by the Attorney General
(or his designee) in ongoing federal cases

Comp_le_x_ _ _ _ iPO
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1012112009 0:00

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-- - - - - --- :

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-----

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Michael Scarcella

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Joe Palazzolo

---'---1- --

ASG/09-R1012 (KAS)

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FOIA-201 0-00688
FOIA-2010-00689

----

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-- ---- ---- - - --

FOIA-201 0-00292

FOIA-2010-00544

Joe Palazzolo

! 91312009

0:00
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University of Kentucky 912112009 0:00

10/1/2009 0:00

---+.Nat"'"io-n-a"lSe..-cu---,rit,-y - + - - - - - --- --------'------.

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.Mark Zaid

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, 10/1512009 0:00
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- - - - - ----+---- ..

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AG/10-R0049 (SBL)

PA0/10-R0070

DAG/10-R0050 (SBL)

--+---

;AGI10-R0015 (KAS)

AGI09-R1138 (SBL)

Joe Palazzolo
11\SG/09-RI 076 [JBG)
--'--+--

:OAG/09-R1075 (JBG)

- - - - - --+-

FOIA-2010-00545

FOIA-2010-00777

r-- - - FOIA-2010-00789

---

FOIA-2010-{)0360

FOIA-2010-00361
FoiA-2o10-00844

IAG/10-R0078 (NCJ)

111

- - - - - -r------- - -

FOIA-2010-00563

A0001240_1-000011

COA-2021

COA-2022
13-L-1252/DOD-OSD/84

COA-2023
13-L-1252/DOD-OSD/85

COA-2024
13-L-1252/DOD-OSD/86

COA-2025

COA-2026

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COA-2028

EXHIBIT 3

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 1 of 13

COA-3001

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 2 of 13

COA-3002

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 3 of 13

COA-3003

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 4 of 13

COA-3004

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COA-3005

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 6 of 13

COA-3006

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 7 of 13

COA-3007

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 8 of 13

COA-3008

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 9 of 13

COA-3009

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 10 of 13

COA-3010

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 11 of 13

COA-3011

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 12 of 13

COA-3012

Case 1:12-cv-00850-EGS Document 1 Filed 05/25/12 Page 13 of 13

COA-3013

FTC FOIA-2012-00227

81

COA-3014

FTC FOIA-2012-00227

11

COA-3015

FTC FOIA-2012-00227

12

COA-3016

FTC FOIA-2012-00227

13

COA-3017

FTC FOIA-2012-00227

90

COA-3018

FTC FOIA-2012-00227

91

COA-3019

FTC FOIA-2012-00227

46

COA-3020

FTC FOIA-2012-00227

47

COA-3021

FTC FOIA-2012-00227

87

COA-3022

FTC FOIA-2012-00227

32

COA-3023

FTC FOIA-2012-00227

33

COA-3024