Biden Transition

Carlos Gamez filed this request with the General Services Administration of the United States of America.
Tracking #

GSA-2021-000245

Status
Processing

Communications

From: Carlos Gamez

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

1. All emails sent to and from Emily Murphy that contains the following phrases: "ascertainment", "2020 election", "Joe Biden", and "President-elect". The date of search would be from October 3, 2020 to the present date.
2. All communications (electronic and physical) received by the White House that contains the following phrases: "ascertainment", "Joe Biden", "President-elect", and fraud". For communications that were received through email it would be from the domain of emails that come from the White House. The date of search would be from October 3, 2020 to the present date.
3. All phone records of Emily Murphy from November 3, 2020 to the present date. This will include all call logs and available transcripts.
4. All letters received by Congress from November 3, 2020 to the present date. This will include all letters received through electronic or physical means.
Fee Waiver
I hereby request a fee waiver for this FOIA request according to applicable law and for the reasons set out below.
I. Activities or operations of the Government
The documents requested relate to the ongoing operation of the federal government. It is known that the GSA will assist transition teams after a president is "likely" to be the elected president through the process enshrined by the U.S. Constitution (https://www.cbsnews.com/news/gsa-general-services-administration-presidential-transition/). The process of "ascertaining" an incoming president is an important process as it allows for the presidential transition team to connect with federal agencies with the GSA serving as a type of intermediate.
II. Likely to contribute to understanding
The documents requested are likely to contribute to the understanding of the activities and/or operations of the government. It was stated by the agency that the precedent established by the 2000 election would be followed closely. The precedent in the 2000 election was established as a result of a razor thin margin in one specific state. It is now reported that in the states contested by the current administration, President-elect Joe Biden is ahead by thousands of votes across multiple states (https://www.cbsnews.com/video/bidens-lead-grows-pennsylvania-georgia-trump-legal-challenges/). This leads to the questioning as to whether such a decision to not write a ascertainment letter could be forced by making legal arguments in court. The documents requested will allow for better insight as to why an ascertainment letter hasn't been written. This is since it will allow for the American public to determine whether there has been outside influence in making or not making such a determination. This has deprived the Biden presidential campaign of benefits of receiving an ascertainment by the GSA as well. This includes not receiving daily briefings and funding that is provided by law (https://www.washingtonexaminer.com/news/biden-deprived-of-presidential-daily-briefings-as-gsa-hasnt-recognized-a-2020-winner). From one source, it was reported that the current administrator is possibly being partisan in this case (https://www.forbes.com/sites/charlestiefer/2020/11/10/the-gsa-head-who-blocks-transition-to-biden-presidency-is-partisan-and-not-independent/?sh=3e8035955e52). There are currently no documents available to determine whether the statement made by Emily Murphy has been well-founded in independence as compared to partisan politics. It is important to note that the GSA was established in 1949 as an independent agency to exist outside the direct control of the executive branch. The documents provided will allow for the determination as to which the stated activities and operations were conducted without "the excessive entanglement of the political branch".
II. Public Understanding
The documents requested will contribute to the American public as a whole in these tumultuous times. This will affect the more than 70 million Americans that have voted for Joe Biden in the general election. This is since it will allow for the ease of tensions and a greater understanding of the different factors that involve ascertaining a president which is provided by law. The peaceful transfer of power has been one of the foundations of the American democracy that we now live in. By making the decision to ascertain or not ascertain the likely president-elect can lead to a lot of turmoil. This is since it causes for uncertainty as to who will be in charge on January 20th. Currently, there are cases in states where the validity of ballots are being challenged. Many legal scholars have stated that such challenges wouldn’t bear fruit significantly and alter the outcome of this election. Also, President Trump has stated previously that this election has been fraudulent. Such statements have the possibility of affecting the independence of agencies that exists outside the purview of the executive branch. There have also been news reports that a rocky transition can lead to issues in passing a stimulus package as well. The current pandemic has affected everyone throughout the United States where help is needed greatly. Overall, the peaceful transfer of the presidency plays a crucial in maintaining the vitality of America and the role of a democracy.
The plan is to have the requested documents readily available on Muckrock. Also, these documents will be readily available for any news outlets to disseminate to the American public.
III. Significance of contribution
There are currently no documents available that shows the process that has been made to ascertain or not ascertain one of the two presidential candidates. This would also allow for the American public to be ensured that all external factors didn’t have a negative impact on an independent decision. This also has value in regards to the current speculations as to whether an ascertainment could be pursued in court.
IV. Commercial Interest
There is no stated commercial interest in this request.
Expedited Processing
I. Primarily Engaged in Disseminating Information
I hereby request expedited processing for this request as well. I am not a member of the news media however I am submitting this request through a platform (Muckrock.com), whose primary purpose is to disseminate information. As such, the mode of disseminating information is valid as meeting the first prong for being “primarily engaged in disseminating information”.
II. There is a current urgency to inform the American public regarding the requested documents. The current subject matter regarding transitioning has been widely reported through various news outlets. This is also a matter of urgency to the American public as it pertains to the transition into a new administration with policies that will affect all Americans.
List:
https://www.npr.org/2020/11/10/933214639/trump-appointee-delays-biden-transition-process-citing-need-for-clear-winner
https://amp.usatoday.com/amp/6219432002
https://www.nbcnews.com/news/amp/ncna1247152
https://www.washingtonpost.com/politics/trump-gsa-letter-biden-transition/2020/11/08/07093acc-21e9-11eb-8672-c281c7a2c96e_story.html?outputType=amp
https://www.politico.com/amp/news/2020/11/08/general-services-administration-biden-win-435203
III. Compromise of a Significant Interest
This is currently a ongoing news story that has affected Americans in determining what would happen next in the White House. The interest is in determining whether or not there will be a peaceful transition and whether the bedrock of this democracy will stand firm. This is since it has been reported that President Trump will not concede and requests that all legal votes be counted. The extensive list of articles proves that such a significant harm exists.
IV. Operations and/or Activities of the Federal Government
The documents requested concerns the process of presidential transitions established by law and regulations of the GSA.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, 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,

Carlos Gamez

From: General Services Administration

This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: (https://www.foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=GSA-2021-000245&type=request)

* Tracking Number: GSA-2021-000245
* Requester Name: Mr. Carlos Gamez
* Date Submitted: 11/16/2020
* Request Status: Submitted
* Description:
Pursuant to the Freedom of Information Act, I hereby request the following records:
1. All emails sent to and from Emily Murphy that contains the following phrases: "ascertainment", "2020 election", "Joe Biden", and "President-elect". The date of search would be from October 3, 2020 to the present date.
2. All communications (electronic and physical) received by the White House that contains the following phrases: "ascertainment", "Joe Biden", "President-elect", and fraud". For communications that were received through email it would be from the domain of emails that come from the White House. The date of search would be from October 3, 2020 to the present date.
3. All phone records of Emily Murphy from November 3, 2020 to the present date. This will include all call logs and available transcripts.
4. All letters received by Congress from November 3, 2020 to the present date. This will include all letters received through electronic or physical means.

SEE ATTACHED FOR THE COMPLETE INITIAL REQUEST.

From: General Services Administration

Dear Mr. Carlos Gamez:
We received your request in the U.S. General Services Administration (GSA) Freedom of Information Act (FOIA) Office and assigned control GSA-2021-000245. Please refer to this number in all future correspondence concerning this request. Based on this, we anticipate response on or prior to December 16, 2020.
We have twenty (20) workdays in which to respond (excluding weekends and Federal Holidays).   However, it may not always be possible to provide the documents within this time period. In some cases, we may take an extension and will advise you. Please be advised that your request may be subject to fees for search, review and reproduction costs. Should this be the case, you will be given an estimate of the costs. All estimates are developed in Good Faith and are based on our reasonable judgment. However, due to the unique nature of each request and complexity of documents involved, actual costs to search and review the material may vary. You will be notified of fees, time frames and any other issues prior to and throughout the process.
Additionally, please be advised that at any time, you can log into the FOIAonline, to access your original request and review the workflow associated with this-tracking number.   Should you have any further questions, feel free to contact this office at our Toll Free Number 1-855-675-FOIA or by email at gsa.foia@gsa.gov to inquire about the status of your request. If you have any concerns regarding the FOIA Requester Service Center, please contact Mr. Travis Lewis at (202) 219-3078 or by email at travi (mailto:gsa.foia@gsa.gov) s.lewis@gsa.gov. (mailto:audrey.brooks@gsa.gov)
Respectfully,
Freedom of Information Act Requester Service Center
U.S General Service Administration
1800 F Street, Northwest, Room 7300
Washington, DC 20405
Toll Free number: (855)-675- FOIA
Fax number: (202) 501-2727

  • U.S. General Services Administration (GSA) Acknowledgement Notice Letter

From: Carlos Gamez

Good afternoon,

I’m looking to see if I will get a decision on my request for expedited processing. Thank you.

Sincerely,

Carlos Gamez

From: General Services Administration

Your user account in the FOIAonline application has been reset. (https://www.foiaonline.gov/foiaonline/action/public/login)

Username: requests@muckrock.com
Temporary password: 5d489a5b-5494-4

After successfully logging in, you'll be asked to change this password before continuing.

From: General Services Administration

Dear Carlos Gamez <requests@muckrock.com>,
Your password has been updated per your request. You can change your password in the future from your
profile page.
If you believe you received this email in error or need additional assistance, please contact the FOIAonline Help Desk. (mailto:foia.help@epa.gov)
Thank you!
FOIAonline Team (mailto:foia.help@epa.gov)

From: General Services Administration

Good Evening Mr. Carlos Gamez:
This is an update to your Freedom of Information Act request of 11/16/2020  (GSA-2021-000245), in which you requested “ Pursuant to the Freedom of Information Act, I hereby request the following records: 1. All emails sent to and from Emily Murphy that contains the following phrases: "ascertainment", "2020 election", "Joe Biden", and "President-elect". The date of search would be from October 3, 2020 to the present date. 2. All communications (electronic and physical) received by the White House that contains the following phrases: "ascertainment", "Joe Biden", "President-elect", and fraud". For communications that were received through email it would be from the domain of emails that come from the White House. The date of search would be from October 3, 2020 to the present date. 3. All phone records of Emily Murphy from November 3, 2020 to the present date. This will include all call logs and available transcripts. 4. All letters received by Congress from November 3, 2020 to the present date. This will include all letters received through electronic or physical means. SEE ATTACHED FOR THE COMPLETE INITIAL REQUEST. "
In order to properly respond to your request, it is necessary for us to take a 10 working day extension under 41 CFR 105-60.404(a)(1), the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request. You should expect a final reply on or before December 31, 2020.
If you have any concerns regarding the FOIA Requester Service Center, please contact Mr. Duane Smith, Public FOIA Liaison Officer at (202) 694-2934 or by email at duane.smith@gsa.gov.
We apologize for this delay and any inconvenience it may cause you.
Respectfully,
GSA FOIA Requester Service center
Washington DC Headquarter Office

  • 41 CFR 105-60.404(a)(1) - Need to Search for & Collect Information Letter

From: Carlos Gamez

Good afternoon,
I previously received an estimated completion date of December 31, 2020. As of this email, I have not received an update as to my request (GSA-2021-000245). Please let me know of any updates and when I may receive the requested records. Thank you.
Sincerely,
Carlos Gamez

From: General Services Administration

Good Morning Mr. Gamez,
Thank you for reaching out about the status of your FOIA request, GSA-2021-000245.
We are actively processing this item and anticipate an agency response to your request in the very near future. Please do not hesitate to contact me if you do not receive a response to your request within the next few weeks
Respectfully,
Travis Lewis
FOIA Program Manager
Office of General Counsel

From: General Services Administration

Good afternoon Mr. Gamez,

Please see GSA's FOIA request response for GSA FOIA request numbered
GSA-2021-000245. Due to the size of these responsive files, this FOIA
request will be distributed to you in two seperate emails. This is email 1
of 2.

U.S. General Services Administration

Travis Lewis

FOIA Program Manager

Office of General Counsel

General Services Administration

202-219-3078

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From: General Services Administration

Good afternoon Mr. Gamez,

Please see GSA's FOIA request response for GSA FOIA request numbered
GSA-2021-000245. Due to the size of these responsive files, this FOIA
request will be distributed to you in two seperate emails. This is email 2
of 2.

U.S. General Services Administration

Travis Lewis

FOIA Program Manager

Office of General Counsel

General Services Administration

202-219-3078

From: Carlos Gamez

Pursuant to the Freedom of Information Act, I appeal the partial denial of this FOIA request (GSA-2021-000245). I appeal this denial on the basis of the failure to complete an adequate search and the use of the fifth exemption of FOIA, 5 U.S.C. § 552(b)(5). Regarding the failure to complete an adequate search, it is based upon the initial request and the failure to include physical communications received from the White House and the non-inclusion of item 3. Item 3 specifically pertained to requesting, “All phone records of Emily Murphy from November 3, 2020 to the present date. This will include all call logs and available transcripts.” This item was not included in the final response and no indication was made as to whether a search for this item was conducted. In the acknowledgment email, it included this item in the description. I also appeal the adequate search of item 2 based on the fact that the search seemed to be limited to electronic communications sent from the White House. This failed to prove an adequate search as the request was for both electronic and physical communications received by the White House. A request for documents cannot be limited to one specific place because “search to only one or more places if there are additional sources that are likely to turn up the information requested.” Valencia-Lucenam 180 F.3d at 326 (citing Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)) (internal quotations omitted).
It is important to note that amendments made to the Freedom of Information Act in 2016 included the addition of a foreseeable harm standard. This required a two-step process in exempting material that included “withholding information if there would be a foreseeable harm to an interest protected by an exemption” and that the agency should “consider whether partial disclosure of information is possible” (5 U.S.C. § 552(a)(8)). This foreseeable harm standard means that for exemption 5 it must harm the deliberative process of the GSA. It is important to note that the deliberative process of the executive branch in this case was said to have “a chilling effect on discussions involving matters significant to the Executive Branch.” It was also stated that “the communications reflect the deliberative process of the Executive Branch,…”. Regarding the second statement, the mere reflection of the deliberative process does not show that such documents will provide harm to the deliberative process. Ecological Rights Foundation v. FEMA, No. 16-cv-05254-MEJ, 2017 WL 5972702 (N.D. Cal., Nov. 30, 2017). It was also held in another case that the agency must do more than “perfunctorily state that disclosure of all the withheld information – regardless of category or substance – would jeopardize the free exchange of information.” Judicial Watch, Inc. v. U.S. Dep't of Commerce, 375 F.Supp.3d 93 (D.D.C. 2019).
In order for documents to fall under the deliberative process they must be deemed as pre-decisional and deliberative in nature. Regarding fee attorney-client privilege invoked, it must Involve confidential communications between an attorney and his or her client. It must also be that secrecy was expected and such documents were not disclosed to a third party. Judicial Watch, Inc., 297 F.Supp.2d at 267. It also must be the solicitation of legal advice to the agency.

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