Exploding Toilet (GSA)

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

All records on, about, mentioning or concerning the event that took place at 7th and D SW in Washington, DC on or around September 26, 2011. The event is described in the media as an "exploding toilet" and resulted in a memo that said "DO NOT flush toilets or use any domestic water. Due to a mechanical failure, there is high air pressure in the domestic water system that resulted in damage to toilets. The engineering staff is working to correct the issue," and "There has been damage to flushed toilets that has resulted in injuries. We will announce when the issue is resolved."

Please include, but do not limit the responsive records to:
1) All memos about the event
2) Any "talking points" document about the event given to a person in the capacity of public relations or similar roles.
3) All signs made to be posted on bathrooms
4) All internal emails with the keyword "bathroom" or "toilet" sent to or from any employee working in the 7th and D SW building between the time of the event and the time this request is processed.
5) All records concerning any investigation launched due to this incident.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Jason Smathers

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Sept. 29, 2011. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

I agree, thank you!

Can you please provide me an estimated date of completion for this request?

Thanks!

Regards,
Jason Smathers

Hi,

That fee letter was never received. If you could resend, it would be appreciated.

Freedom of Information Act
Executive Secretariat Division (ADE)
General Services Administration
1800 F Street, NW, Room 3116
Washington, DC 20405-0001

Re: Freedom of Information Act (FOIA) Request No. 209887

Dear FOIA Appeals Officer:

On November 29, 2011, I requested all emails related to an incident where toilets exploded on GSA property. In a letter dated March 12, 2012, I was denied the majority of these records. I am told that 90 documents were withheld in their entirety because of a (b)(6) exemption. The letter cited multiple possible exemptions they believe could have been used.

I appeal.

Concerning the (b)(6) exemption, this material is concerning an incident on public property sent by government employees. Exemption (b)(6) is a narrow exemption that is being misused here, it requires a “clearly unwarranted” intrusion on personal privacy. See Nat’l Archives and Records Admin. v. Favish, 124 S.Ct. 1570 (2004). There is no invasion of privacy by releasing these records. Exemption (b)(6) applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," which the withheld records are clearly not. Further, the GSA cannot withhold records under various possible exemption based solely on the embarrassing the GSA may face if released, which seems to be the underlying issue. To invoke this exemption, agencies must first find that the information is “similar” to personnel and medical files. The mere location of a document in a government file labeled “personnel” or “medical” does not automatically make it exempt. Courts have been especially deferential to agencies when they attempt to show how documents containing information about any individual is “similar” to a personnel or medical file, finding, for instance, that tape recorded voice inflections are “similar files” that could block the release of a recording even when a transcript is available. See New York Times v. Nat’l Aeronautic and Space Ass’n, 920 F.2d 1002 (D.C. Cir. 1990)(en banc). If some privacy concern should arise, there is a clear public interest in the release of these records. The withheld files are emails from witnesses of a safety issue on public property. They reports of the incident are clearly in the public interest to be released. Their candid comments through email are exactly what this FOIA request was seeking and the public at large is interested in what they say. You can view the records already released to see the widespread news coverage of this event which proves a great public interest.

Next, the denial letter refers to the withheld records as "merely private conversations." The withheld records are emails sent using government computers, sent through a government network, and mention an incident on government property. These records are clearly not "merely private conversations." Whether or not their correspondence is embarrassing does not allow for their exemption.

Additionally, without citing an actual exemption, the letter states "In addition, these documents are being withheld as we have determined that disclosure will not contribute significantly to the public's understanding of the operations or activities of the Government. I respond first by disagreeing. As I have stated, these are eyewitness accounts to a safety concern on US government property or at minimum eyewitness accounts to the government's reaction to the safety issue. Second, I disagree with the premise. The GSA may not withhold records because in their opinion they do not contribute significantly to public understanding. You are citing language used to determine if a fee waiver is appropriate for the purpose of withholding records. It is true that in order for a member of the news media to receive a fee waiver for their FOIA request, the records must "contribute significantly to the public's understanding." The GSA has greatly erred by applying this test to the releasability of records. Particularly under the president's memo to agencies concerning the presumption of openness.

Finally, the letter states "these documents may also be viewed as non-responsive to your request." This is far from the truth. I requested emails that contain keywords about a specific incident and later agreed to narrow the request to emails sent within a narrow two day period. You found these records because you search a government email system for keywords concerning a government incident within a two day window of that incident. All the results are clearly responsive to my request. You state that "they are merely private communications and are, therefore, not agency records." Again, I disagree. How can records sent by government employees from government computers over a government network concerning a government issue be "not agency records"?

Please release all records responsive to my request.

Thank you.

Regards,
Jason Smathers