|Submitted||Jan. 24, 2017|
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To Whom It May Concern:
I am a journalist working for The Daily Dot (www.dailydot.com), an online news publication. I am requesting records under the provisions of the Freedom of Information Act (“FOIA”). 5 U.S.C.§ 552.
Additionally, I am seeking expedited processing of my request pursuant to 5 U.S.C.§ 552(a)(6)(E), as the subject of my request concerns a matter of current exigency to the American public, for reasons I will detail below.
I am seeking any and all records relating to instructions (orders, directives, memos, or communications) received by the U.S. Department of Energy (“DOE”), regarding:
1) The DOE’s use of social media, including its official Twitter accounts (@ENERGY etc.)
2) Communications by DOE employees with reporters and/or other members of the news media (via phone, email, press release, or any other method.)
3) The dissemination of press releases to the public.
4) The publication of any agency DOE records, including reports or fact sheets
5) The release of DOE data through the federal government’s data.gov portal.
1) Please include any internal memos generated by DOE pertaining to the use of social media.
2) Please include any internal memos generated by DOE pertaining to the Freedom of Information Act.
1) Any agency communications, including emails, text messages, and written correspondence.
2) Any physical documents, including memos, briefs and reports.
3) Any legal opinions related to the topics in the itemized lists above.
-- SEARCH PARAMETERS
1) Please limit your search to records created on or after FRIDAY, JANUARY 20, 2017, up to the date/time the search for responsive records begins. Including any records created before this time frame that have been circulated or shared among DOE employees.
2) Include any publicly available records.
3) Search for, and disclose, releasable records even if they are available publicly through other sources outside the DOE, such as the National Archives and Records Administration.
4) If any records responsive or potentially responsive to my request have been destroyed, my request includes, but is not limited to, any and all records relating or referring to the destruction of those records. This includes, but is not limited to, any and all records relating or referring to the events leading to the destruction of those records.
-- REASONING FOR EXPEDITED PROCESSING
I have requested expedited processing because I believe my request concerns a matter of widespread and exceptional media interest in which there exists possible questions about the government’s integrity which affect public confidence.
1) The Associated Press ("AP") reported on January 24, 2017 that the Trump administration has “instituted a media blackout at the Environmental Protection Agency,” among other agencies, while barring “staff from awarding any new contracts or grants, part of a broader communications clampdown within the executive branch.” [New York Times: http://nyti.ms/2jcqKLq]
2) According to AP: “Emails sent to EPA staff… also detailed specific prohibitions banning press releases, blog updates or posts to the agency’s social media accounts.”
3) According to AP: One directive from the Trump administration warned EPA employees to carefully screen incoming media requests, because “messages can be shared broadly and end up in the press.”
4) According to AP: orders similar to those received by the EPA have been “issued in recent days by the Trump administration at other federal agencies, including the departments of Transportation, Agriculture, and Interior.”
5) AP's report, if accurate, demonstrates there is a concerted effort by federal government officials to prevent the public dissemination of information from an agency funded by federal tax dollars.
6) AP's report provoked an exceptional media and public interest, as demonstrated by similar reports from the Public Broadcasting Service (http://to.pbs.org/2jtJdE3), the Boston Globe (http://bit.ly/2kpSkpB), Washington Post (http://wapo.st/2jLBwda), among at least dozens of others news outlets.
-- FEE WAIVER
As I am making this request in my capacity as member of the news media, I ask that the DOE waive all fees associated with the search, review and duplication of any responsive records.
1) I am full-time staff reporter employed by the Daily Dot, a news company headquartered in Austin, Texas, since 2013.
2) My reporting on government affairs has been recognized by:
> a) The Electronic Frontier Foundation (http://bit.ly/1zBNhHk);
> b) Reporter Eric Lipton of The New York Times (http://bit.ly/2jnW64O);
> c) Senate Minority Leader Chuck Schumer, Democrat of New York (http://bit.ly/2jXDf1f).
3) Additionally, I can provide a letter from my editor and my company’s CEO by request attesting to my status as full-time reporter.
The above information is true and correct to the best of my knowledge.
-- FURNISHING OF ELECTRONIC RECORDS
Please furnish all responsive records in electronic format.
-- FURTHER CORRESPONDENCE
All future correspondence can be directed to me at the email address from which this request originates. Alternatively, you may contact me at the following email address: email@example.com.
If you have any questions, do not hesitate to contact me at: (469)387-1810.
Please be aware that under 5 U.S.C. § 552(a)(6)(A), a FOIA request is considered constructively denied after twenty business days and is subject to an appeal on that basis.
Thank you in advance for your anticipated cooperation in this matter.
I'm writing to clarify a portion of my FOIA request.
I wrote: I am seeking any and all records relating to instructions (orders, directives, memos, or communications) received by the U.S. Department of Energy (“DOE”)
I am referring to instructions that originate from the White House, which may have been relayed through another federal agency. Please account for that in your search.
I very much appreciate your time.
Please see the attached acknowledgment letter regarding your Department of Energy FOIA request, HQ-2017-00461-F.
Allow me to emphasize I am seeking expedited processing of my request as the subject concerns a matter of current exigency to the American public in which questions have been raised about the government’s integrity. 5 U.S.C.§ 552(a)(6)(E). See also: 28 C.F.R. § 16.5(d)(1)(iv).
Furthermore, the requested documents are integral to a breaking news story concerning a matter of widespread and exceptional media interest, the delayed release of these records would compromise a significant recognized interest. See: Am. Civil Liberties Union v. Dept. of Def. 2006 WL 1469418 at 6* (“ACLU v. DOD”) See also: Al-Fayed v. CIA, 254 F.3d at *306 (D.C. Cir. 2001) (“Al-Fayed”).
Please see the attached interim response regarding your Department of Energy FOIA request, HQ-2017-00461-F.
A COPY OF THIS APPEAL WILL BE FORWARDED TO "OHA.FILINGS@HQ.DOE.GOV" AS REQUESTED.
This letter serves as notice that I have decide to appeal the decision of the U.S. Department of Energy (“DOE”) to deny my request for expedited processing under the Freedom of Information Act (“FOIA”) request. 5 U.S.C.§ 552.
I was provided the following reference number for my request: HQ-2017-00461-F.
First, DOE wrote in a letter that my request was being denied because I had not “provided material that establishes that there is any threat to the life or safety of an individual that would justify expeditious processing of the request.” My request for the expedited release of records, if they exist, is not continent on this section of the federal statute.
Under 5 U.S.C.§ 552(a)(6)(E)(v), subparagraph (I) acknowledges situations in which there is an “imminent threat to the life or physical safety of an individual.” As evident by the use of the word “or,” this requirement need not be met if “compelling need” is demonstrated by one “primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.”
DOE has recognized “the ability and intent of (my) organization [The Daily Dot] to disseminate the information to the public in a form that can further understanding of the subject matter.”
DOE’s argument for denying expedited processing is based on the assertion that the information I have request is not of urgent concern to the public. Nothing could be farther from the truth. The American public has taken a deep interest in President Donald Trump’s transition to power. As evidence of this, I would point to the massive public protests — one on Jan. 20, may have been the largest in U.S. history, according for various august news publications (“Perhaps the Largest Protest in U.S. History Was Brought To You By Trump” - Time Magazine: http://time.com/4649891/protest-donald-trump/)
Furthermore, my request, as I relayed to DOE in my initial letter, pertains to federal government activities during a so-called “media blackout” ordered by the White House which extended to at least three agencies the public is aware of. The intent of my request — combined with other similar requests I have filed at multiple federal agencies — is to identify other types of restrictions that may have been placed on other government agencies besides EPA that limits the release of information to the federal taxpayer. (I have not requested access to any records that should be considered sensitive, classified, or secret, or would be related in any way to an ongoing law enforcement investigation.)
Courts have held that “compelling need” to disclose records exists if the subject matter (in this case, the so-called “media blackout”) is “central to a pressing issue of the day.” See: Wadelton v. Department of State, 13-0412 ash, 2014 WL 1760853 (D.D.C. Apr. 25, 2013) (“Wadelton”). In one case, the court found that “compelling need” was demonstrated because the nature of the request concerned a “breaking news story,” which in that case involved the domestic surveillance of anti-war protesters. See: ACLU of N. Cal. v DOD 2006, WL 1469418 (“ACLU”)
In its letter, the DOE cited Al-Fayed v. CIA, 245 F. 3d 300, 310 (D.C. Cir. 2001) (“Al-Fayed”), stating that my request did not adequately address two of three factors required to demonstrate an “urgency to inform” based on a “compelling need;” those factors are: 1) whether the request concerns a matter of current exigency to the American public; 2) whether the consequences of delaying a response would compromise a significant recognized interest. However, the D.C. Circuit court also stated that in Al-Fayed that “the conclusion will often rest on important underlying facts: for example, the credibility of a claimant’s allegation regarding government activity…” — DOE has stipulated my request meets this requirement — as well as “…the existence of a threat to physical safety, OR whether an issue is the subject of current news coverage.” Al-Fayed at 308 (emphasis added)
In Wadelton, the court noted that “[I]n cases where compelling need was found, plaintiffs “cited numerous articles and reports, including many in mainstream news sources such as the New York Times, the Washington Post, the Los Angeles Times, and/or the San Francisco Chronicle.” (I did the same in my request.) In addition, courts have found “matters of wider public concern” is indicated by a “flurry of articles and television coverage…” See: Edmonds v FBI, CIV .A. 02-1294 (ESH), 2002 WL 32539613 (D.D.C Dec. 3, 2002)
In the case of ACLU, “breaking news” was defined as one that “conveys information the public wants quickly,” and “[i]f the story would lose value if it were delayed, it is a breaking news story.” ACLU at *6.
In my initial letter I provided several examples of breaking news coverage, including the following links:
1) “Trump Admin Orders EPA Contract Freeze and Media Blackout” - New York Times: https://www.nytimes.com/aponline/2017/01/24/us/politics/ap-us-trump-agencies-crackdown.html (Key to my argument: This article, authored by an Associated Press reporter, indicates that the blackout extended beyond the Environmental Protection Agency, and included, among other agencies, the Departments of Transportation, Agriculture and Interior.)
2) “Trump issues EPA media blackout and suspends agency’s grants” - Public Broadcasting Service (PBS): http://www.pbs.org/newshour/rundown/trump-issues-epa-media-blackout-suspends-agencys-grants/
3) “President Trump institutes media blackout at EPA” - The Boston Globe: https://www.bostonglobe.com/news/politics/2017/01/24/trump-bans-epa-employees-from-updating-public-via-press-social-media/Anr90pkwhavC2kzK8pwsyK/story.html
4) “Trump admin institutes media blackout for EPA, suspends social media activity” - Fox News: http://www.foxnews.com/politics/2017/01/25/source-trump-admin-institutes-media-black-out-for-epa-suspends-social-media-activity.html (“Similar orders barring external communications have been issued in recent days by the Trump administration at other federal agencies…”)
As DOE has accepted that my request does concern government activity of interest to the public, I am appealing its decision to deny my extradited processing on the basis that my request meets the requirement of “compelling need” based on the court decisions I have outlined above, and on the basis that this matter constitutes a matter of urgency due to the fact that delaying the process would harm “the media’s interest in quickly disseminating breaking, general-interest news” ACLU at *8.
If the White House has curtailed DOE’s ability to convey information to the public by issuing orders restricting its social media activity, publish studies or reporters on its website, or release data through the data.gov portal, the public, which pays for the generation this information and data, has a right to know that it is being withheld.
Sorry, there was (at least one) typo* in this letter in the 3rd paragraph.
It should read instead: "First, DOE wrote in a letter that my request was being denied because I had not “provided material that establishes that there is any threat to the life or safety of an individual that would justify expeditious processing of the request.” My request for the expedited release of records, if they exist, is not contingent* on this section of the federal statute."
Dear Mr. Cameron,
Please see the attached letter acknowledging receipt of your FOIA Appeal.
James P. Thompson, III
Office of Hearings and Appeals
U.S. Department of Energy
1000 Independence Ave, S.W.
Washington, D.C. 20585-1615
Phone: (202) 287-6954
The request has been rejected by the agency.