Executive Order 13777 - "Enforcing the Regulatory Reform Agenda" (Labor)

To Whom It May Concern:

I. Description of Records Sought

This is a request under the Freedom of Information Act for the following records:

1. Evaluations, recommendations, and progress reports from the Regulatory Reform Task Force to the agency head regarding the repeal, replacement, or modification of existing regulations, pursuant to 82 C.F.R. 12285 § 3(d) and 82 C.F.R. 12285 § 3(g).
2. Emails, memoranda, presentations, official correspondence, and meeting notes from the Regulatory Reform Officer, Regulatory Reform Task Force members, and agency head regarding compliance with and execution of Executive Order 13777. Please limit your search from February 20, 2017 to the date you process this request.

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 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 the agency regulations that are likely to be evaluated and changed. Due to the broad scope of Executive Order 13777, these regulations can apply to virtually every issue that the government works on, impacting people's lives in a variety of ways.

The Sierra Club and its supporters have demonstrated interest and expertise in the subject area, specifically the development of standards designed to limit pollution, safeguard public health, improve the economy, and conserve natural resources. In addition to our staff's formal recommendations, our supporters have filed millions of public comments to agencies related to regulations that are likely to be affected by this order.

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

Thank you very much, Mr. Yerxa, for the interim response (FOIA Request Number 832542). I may file an appeal soon on the redactions, but I wanted to let you know about the other component you are reviewing, as I imagine that part entails more work for your agency. You may narrow the scope to just the Regulatory Reform Officer and the agency head, removing the other Regulatory Reform Task Force members.

Regards,
Alexander Rony
Sierra Club

I am writing to appeal the Department of Labor's ("DOL's") interim response to my June 1, 2017 Freedom of Information Act ("FOIA") request (number 832542) for documents relating to the department's Regulatory Reform Task Force. DOL's September 26, 2017 response states that twelve pages (pages 159-170) were withheld pursuant to FOIA's Exemption 5 and one bullet point (page 5) was redacted, also pursuant to Exemption 5. The Department provides no information as to why these pages are "deliberative" or "predecisional," as required to be properly withheld. The decision to withhold these pages is contrary to FOIA and is wholly unsupported by the agency's denial letter.

The Department of Labor did not claim any other FOIA exemptions applied to these items 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, DOL must provide some explanation for withholding of documents under Exemption 5 beyond a bare, conclusory assertion that the pages 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, DOL cited the language of Exemption 5, but provided no details that would explain why each 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 sections of the withheld pages may meet these criteria, it is impossible to know from DOL's sparse response, and therefore DOL has not met its burden to justify withholding documents.

In Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir. 1975) ("Vaughn II"), 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).

The twelve withheld pages are agency reports described on page 4: "each RRTF [Regulatory Reform Task Force] member agency submitted a brief report on the initial actions they have taken in response to the EO [Executive Order], stakeholder outreach activities, and regulations that they have identified as possible candidates for modification, repeal, or replacement." Based on this description, much of the content of these plans should not reflect ongoing deliberations on agency policy. According to this document, the withheld pages include information on actions already taken by agencies, which would no longer be deliberative or predecisional and, therefore, should not be withheld in their entirety under Exemption 5. Portions of the reports that are indeed exempt may be redacted without withholding the entire page.

The redacted bullet point on page 5 is unusual, in that no other item in the progress report is redacted. In the context of the surrounding paragraphs, its redaction seems out of place. Once again, there is not enough explanation to warrant the bullet point's redaction.

I respectfully request that the denial of my request be reversed and remanded, and the full set of responsive documents be released.

Sincerely,

Alexander Rony
Sierra Club

Dear Ms. Neary,

Yes, I am still interested in my FOIA appeal (no. 180022).

Alexander Rony

Dear Ronetta Norris,

I am still interested in my FOIA appeal (#180022), but you may close the rest of the original FOIA request (#832542).

Alexander Rony

Dear Ms. Matthis,

Thanks for reaching out. You may close out my FOIA appeal (No. 180022).

Regards,
Alexander Rony