EPA Workforce Reduction Plans

Alexander Rony filed this request with the Environmental Protection Agency of the United States of America .
Tracking #

EPA-HQ-2017-011944

Status
Completed

Communications

From: Alexander Rony

To Whom It May Concern:

I. Description of Records Sought

This is a request under the Freedom of Information Act.

On April 12, 2017, Office of Management and Budget Director Mick Mulvaney sent a memorandum for heads of executive departments and agencies titled, "Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce." The memorandum is available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-22.pdf.

In the "OMB/Agency Reform Plan Meetings" section, Director Mulvaney's memorandum states that by June 30, 2017, agencies must provide OMB with (a) a high-level draft of their Agency Reform Plan that includes the areas the agency is developing for their reforms; (b) progress on near-term workforce reduction actions; and (c) a plan to maximize employee performance.

I am requesting these three items (Agency Reform Plan, progress report, and employee performance plan) that the Environmental Protection Agency sent to the OMB.

II. Request for a Fee Waiver

I respectfully request that you waive all fees in connection with this request as provided by 5 U.S.C. § 552(a)(4)(A)(iii). The Sierra Club is a national environmental nonprofit with no commercial interest in obtaining the requested information. Instead, our organization intends to analyze and disseminate the requested information free of charge so that the public can be better informed and meaningfully participate in the role of the government in protecting the nation's natural resources and public health.

The subject matter of the requested records is likely to contribute significantly to public understanding of the operations and activities of the government by disclosing how federal agencies are planning to reorganize their offices and what lines of work may be impacted. The Sierra Club and its supporters have demonstrated interest and expertise in the subject area, as the organization has made many recommendations on how the EPA should conduct its business to be better stewards of the environment and public health. We maintain policy experts who will be able to contextualize how these workforce reductions and agency reorganizations will affect the issues that our supporters care deeply about.

III. Media Requester Status

In addition to the public interest fee waiver, I ask to be properly categorized as a representative of the news media. The bulk of my professional duties at the Sierra Club entails planning and writing content about public policy, including composing mass communications to our followers, analyzing FOIA responses, and coordinating press outreach. Here are some examples that resulted from my work:

https://sierraclub.org/planet/2017/04/hiring-freeze-prevented-epa-filling-hundreds-jobs
https://www.washingtonpost.com/news/to-your-health/wp/2017/05/19/nearly-700-vacancies-at-cdc-because-of-trump-administration-hiring-freeze/
http://www.centerforfoodsafety.org/press-releases/4480/over-700000-people-tell-government-to-block-seed-mergers

The Sierra Club has the ability and intention to disseminate the information it receives through this request. The information may be shared through emails to an audience reaching into the millions, Facebook and Twitter posts reaching tens of thousands of followers, articles on our often-visited website, and analysis provided to the media.

IV. Exempt Records

Should you decide to invoke a FOIA exemption with regard to any of the requested records, please include in your response letter sufficient information for an appeal, including:

1. Basic factual material about each withheld item, including the originator, date, length, general subject matter, and location of each item.
2. Explanations and justifications for denial, including the identification of the category within the governing statutory provision under which the document (or portion thereof) was withheld and a full explanation of how each exemption fits the withheld material.

If you determine that portions of a requested record are exempt from disclosure, please redact the exempt portions and provide the remainder of the record.

V. Record Delivery

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

Please produce the records on a rolling basis; at no point should the search for – or deliberation concerning – certain records delay the production of others that the agency has already retrieved and elected to produce.

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,

Alexander Rony
Sierra Club

From: foia_hq@epa.gov

This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: (https://foiaonline.regulations.gov:443/foia/action/public/view/request?objectId=090004d28152e272)
* Tracking Number: EPA-HQ-2017-010712
* Requester Name: Alexander Rony
* Date Submitted: 08/22/2017
* Request Status: Submitted
* Description: Requesting these three items (Agency Reform Plan, progress report, and employee performance plan) that the Environmental Protection Agency sent to the OMB.

From: sandfoss.kristina@epa.gov

08/29/2017 11:28 AM FOIA Request: EPA-HQ-2017-010712

From: sandfoss.kristina@epa.gov

Your request for Fee Waiver for the FOIA request EPA-HQ-2017-010712 has been determined to be not applicable as the request is not billable. Additional details for this request are as follows:
* Request Created on: 08/22/2017
* Fee Waiver Disposition Reason: N/A
* Request Long Description: Requesting these three items (Agency Reform Plan, progress report, and employee performance plan) that the Environmental Protection Agency sent to the OMB.

From: sandfoss.kristina@epa.gov

EPA-HQ-2017-010712 has been processed with the following final disposition: Partial grant/partial denial.
Records were released to the public as a result of this request. You may retrieve these records immediately using the following link: View Records.Over the next 2 hours, these records are also being added to FOIAonline's search pages, further enabling you to retrieve these documents associated with your FOIA request at any time. (https://foiaonline.regulations.gov:443/foia/action/public/view/request?objectId=090004d28152e272)

From: Alexander Rony

Re: FOIA Administrative Appeal -- Sierra Club FOIA Request, Tracking No. EPA-HQ-2017-010712

To Whom It May Concern:

I am writing to appeal the Environmental Protection Agency's ("EPA's") response to my August 22, 2017 Freedom of Information Act ("FOIA") request for documents provided to the Office of Management and Budget ("OMB") in response to OMB Memorandum M-17-22. EPA's September 7, 2017 response states that 395 out of 396 responsive pages will be withheld in their entirety pursuant to FOIA's Exemption 5, or 5 U.S.C. § 552(b)(5). EPA did not claim any other FOIA exemptions applied and thus has waived any other claims of exemption.

Under FOIA, the agency bears the burden of proof to show that documents are covered by this exemption. In other words, EPA must provide some explanation for withholding of documents under Exemption 5 beyond a bare "conclusory" assertion that the documents in question are predecisional and deliberative. Vaughn v. Rosen, 523 F.2d at 1146. See also SafeCard Serv. v. SEC, 926 F.2d 1197, 1204 (D.C. Cir. 1991). Here, EPA provided no more than this bare assertion. EPA cited to the language of Exemption 5, but provided no details that would explain why all but one page meets the Exemption 5 standard – i.e., is both deliberative and predecisional.

To be predecisional, the document must be "prepared 'to assist an agency decisionmaker in arriving at his decision, rather than to support a decision already made.'" Lurie v. Department of Army, 970 F. Supp. 19, 33 (D.D.C. 1997) (quoting Petroleum Information Corp. v. U.S. Dept. of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992). Further, "In order to qualify for the Exemption 5 privilege, a document must be...deliberative in the sense that it is actually...related to the process by which policies are formulated." 2 Fed. Info. Discl. § 15:18 (quoting Jordan v. U.S. Dept. of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978)). While certain of the withheld documents may meet these criteria, it is impossible to know from EPA's sparse response, and therefore EPA has not met its burden to justify withholding documents. Moreover, it is very likely that many of the documents are not properly withheld under Exemption 5.

While all the responsive documents should be released because EPA has not met its burden to justify disclosure, there are several categories of documents that seem to fall outside the bounds of Exemption 5 even without knowing the details of those documents. Neither the progress report on workforce reduction nor the plan to maximize employee performance should reflect ongoing deliberations on agency policy. Progress reports on workforce reduction are primarily, if not wholly, factual, and plans to maximize employee performance would seem to represent the final policies of the agency in response to OMB's request. Personnel management documents of a similar nature have been found to fall outside the scope Exemption 5 by a number of courts. In Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir. 1975) ("Vaughn II"), the court found that agency documents reporting on implementation of workforce reduction and employee performance measures were not covered by the deliberative process exemption:

"Those portions of the sample reports found not to be exempt from disclosure [under FOIA Exemption 5] cover a wide range of topics: labor-management relations...the merit promotion program, processing of personnel actions, incentive awards and the employee suggestion program, management's evaluation of employee performance...manpower planning...and implementation of reductions in force." 523 F.2d at 1140.

The D.C. Circuit affirmed the district court's finding that "the 'factual, investigative, and evaluative portions' of the documents 'reflect[ed] final objective analyses of agency performance under existing policy' and 'reveal whether the agencies' policies are being carried out,' rather than 'advisory opinions, position papers, policy recommendation, or other such intra-governmental documents concerned with the deliberative processes'" of the agency and were therefore not covered by Exemption 5. Id. at 1140. The court found that the affidavits relied on by the agency to justify invocation of Exemption 5 were "conclusory" and "fail[ed] to carry the Government's burden of proof...because at no place do they define, explain, or limit the 'deliberative process' which the Government seeks to protect." Id. at 1146. See also Cowdery, Ecker & Murphy, LLC v. U.S. Dept. of Interior, 511 F. Supp. 2d 215 (D. Conn. 2007); McGrady v. Mabus, 635 F. Supp. 2d 6 (D.D.C. 2009).

I respectfully request that the decision to withhold documents be reversed and remanded, and the full set of responsive documents be released.

Sincerely,
Alexander Rony
Sierra Club

From: Environmental Protection Agency

A letter stating that the request appeal has been received and is being processed.

From: Alexander Rony

Dear Ms. Blair,

Thank you for acknowledging receipt of my appeal (listed as Appeal Nos. EPA-HQ-2017-011944 and EPA-HQ-2017-011946 for Request No. EPA-HQ-2017-010712) on October 4, 2017. Do you have an update on your agency's review of my appeal?

Respectfully,
Alexander Rony

From: Environmental Protection Agency

Dear Mr. Rony:
Please see the attached appeal determination for the above-referenced appeal. Please note that this appeal determination also applies to FOIA Appeal no. EPA-HQ-2017-011944, which has been closed as a duplicate appeal. As noted in the determination, the appropriate program office will contact you within 10 business days to provide an update on the status of your request. If you have any questions concerning this determination, please contact Lynn Kelly, at 202-564-3266 or at kelly.lynn@epa.gov. (mailto:kelly.lynn@epa.gov)
Thank you.

From: Environmental Protection Agency

Dear Mr. Rony:
EPA-HQ-2017-011944 has been processed with the following final disposition: Closed for other reasons -- Duplicate request or appeal. Please see EPA-HQ-2017-011946 for EPA's determination on your appeal of EPA-HQ-2017-010712. If you have any questions, please contact Lynn Kelly at 202-564-3266 or kelly.lynn@epa.gov. (mailto:kelly.lynn@epa.gov)
Thank you.

From: Environmental Protection Agency

06/28/2018 01:47 PM FOIA Request: EPA-HQ-2017-010712

Good afternoon Mr. Rony,
The request mentioned above has been remanded to the Office of Administration and Resources Management (OARM) to conduct another search for records.  To ensure the thoroughness of the search, OARM is proposing search terms and custodians we have identified for responsive records.  Please review the terms and custodians below and contact me with confirmation of agreement, questions, or additional terms and custodians as soon as possible. Once we agree upon terms and custodians, the search will be conducted by the Agency's Office of Environmental Information and OARM will be able to determine a review timeline based on the volume of search results. Important for you to note, FOIAonline is going through an upgrade starting July 3rd and will be offline and unavailable to exchange communications via until July 9th, 2018.  If we do not hear from you within 14 days of this communication, the search will be conducted with the search terms and custodians as listed below. I can be reached at sandfoss.kristina@epa.gov or 202-564-7177. (mailto:sandfoss.kristina@epa.gov)
Thank you for your interest in the EPA and have a great day!
Kristina

Kristina Sandfoss
OARM FOIA Coordinator
Custodians:
Darwin, Henry
Vizian, Donna
Bloom, David
Kenny, Shannon
Dravis, Samantha
Greaves, Holly
Brown, Byron
Osborne, Howard
Pirzadeh, Michelle
Jackson, Ryan
Showman, John
Flynn, Mike
Fine, Steven
Hitchens, Lynnann
Dawes, Katherine
Bell, Matthew
Search Terms:
“EO Discussion”
“Reform Plan”
“Reform Ideas”
“Executive Order on a Comprehensive Plan for Reorganizing the Executive Branch”
“Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce”
“M-17-22”
“Priority Area”
“Reform Analysis”
“Deliberative and Pre-decisional”

From: Alexander Rony

Dear Ms. Sandfoss,

Thank you for your email. Could you prioritize reviewing and returning the 395 records that were withheld before conducting the search?

Regards,
Alexander Rony

From: Environmental Protection Agency

Good morning Mr. Rony,
As stated in the Appeal Determination letter from the Office of General Counsel, OARM categorically asserted Exemption b5, and that was on an estimated number of documents. To conduct a proper search and response to your request for information, OARM will need to submit a search through the eDiscovery Division of the Office of Environmental Information (OEI). Please let me know if you agree to the search terms and custodians and that search request will be submitted today.
Thank you,
Kristina

From: Alexander Rony

I'm confused -- I don't see anywhere in the 9/7/17 final disposition letter or the appeal determination letter that says the 395 withheld documents were an estimate. OARM stated that it had "found three hundred ninety-six (396) records responsive to" my request. Does the EPA not have 395 withheld documents available at hand? What search parameters were previously used?

From: Environmental Protection Agency

Good afternoon Mr. Rony,
Apologies for the delayed response as the holidays interrupted the determination of answers to your questions. The documents were not collected and there was no standardized search implemented, so there are no documents on hand to review. As OGC determined, the search and categorical assertion of Exemption b5 were improperly conducted and applied, and OARM appreciates the opportunity to provide a thorough and proper search and review of responsive documents. We are willing to update the search timeline to include from April 12, 2017 to the date the search is submitted to our eDiscovery Division. Please let me know if there are any additional custodians or terms you want to be included and if the timeline 4/12/2017 to 7/12/2018 is agreeable. I can be reached at 202-564-7177 or sandfoss.kristina@epa.gov. Once again, sincerest apologies for any inconvenience.
Thank you and have a terrific Thursday!
Kristina

From: Alexander Rony

Dear Ms. Sandfoss,

I appreciate the eagerness to conduct this search, though I feel the number of email custodians and search terms would make the search and review process quite timely for your office. My initial FOIA request was only for three specific documents, though I'll happily take relevant emails you are reviewing anyway.

I'll have to defer to you on the list of email custodians, though I would like to know how quickly you can run searches across so many people. Each agency has a different email search process.

For the search terms, please add "workforce reducation" and remove the following:
“EO Discussion”
“Reform Ideas”
“Priority Area”
“Reform Analysis”
“Deliberative and Pre-decisional”

As for the timeline, you can end it at December 31, 2017.

Hopefully that will make your office's workload more manageable for this request. If you have any other ideas to rein in the scope to look for the three specific documents I am requesting, I am willing to adjust the search procedure accordingly.

Best,
Alexander Rony

From: Alexander Rony

Please note that "workforce reducation" should read "workforce reduction." Sorry for the typo. This is regarding my last email on FOIA #EPA-HQ-2017-011944.

Best,
Alexander

From: Environmental Protection Agency

Good afternoon,
I deeply apologize for the delay in responding to your requests for an estimated completion date. The 3 documents you initially requested are undergoing review by the offices that ‘own’ them. Taking workload and upcoming holidays into account, I am extremely hopeful that OARM will have this request processed by Friday, December 7th, 2018. Once again, I am sorry for the lack of responsiveness and the review time, but please know that we are doing our best to complete this request as expeditiously as possible. Please feel free to contact me at 202-564-7177 if you have any questions.
Thank you and have a great day!
Kristina

From: Environmental Protection Agency

EPA-HQ-2017-010712 has been processed with the following final disposition: Partial Grant/Partial Denial

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