EPA Workforce Reduction Plans

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

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

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

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

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?

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

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