EXPEDITED REQUEST: NASA social media/press contact

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.

-- REQUEST

I am seeking any and all records relating to instructions (orders, directives, memos, or communications) received by the National Aeronautics and Space Administration (“NASA”), regarding:

1) The NASA’s use of social media, including its official Twitter accounts (@NASA, @NASAclimate, etc.)
2) Communications by NASA 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 NASA records, including reports or fact sheets
5) The release of NASA data through the federal government’s data.gov portal.

Additionally:
1) Please include any internal memos generated by NASA pertaining to the use of social media.
2) Please include any internal memos generated by NASA pertaining to the Freedom of Information Act.

This includes:
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 NASA 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 NASA, 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.

For background:

1) The Associated Press ("AP") reported on January 24, 2017 that the Trump administration has “instituted a media blackout at the Environmental Protection Agency and barred 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 NASA 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.

-- CERTIFICATION

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: dell@dailydot.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.

Sincerely,

Dell Cameron

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 National Aeronautics and Space Administration (“NASA”)"

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.

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 National Aeronautics and Space Administration (“NASA”)"

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.

For clarification:

I am requesting any records pertaining to White House orders or decrees concerning 1) NASA’s use of social media; 2) the dissemination of press releases; 3) the publication of reports and fact sheets; 4) the release of records in response to FOIA requests; 5) and the release of NASA data through the government’s data.gov portal. Essentially, I am seeking access to any records that reveal instructions or decrees originating from the new White House administration pertaining to NASA releases information or data to the public. Please include any electronic records reflecting internal discussion about these White House instructions, not simply copies of the instructions themselves, if they exist.

At this time, you may limit your search for responsive documents on my behalf to records sent or received by 1) Acting Administrator Bob Jacobs of OCOM, and 2) NASA Acting Administrator Robert Lightfoot. Additionally, you may limit your search to records created or conveyed on or after January 20, 2017.

Sorry, typo: "Essentially, I am seeking access to any records that reveal instructions or decrees originating from the new White House administration pertaining to how* NASA releases information or data to the public."

Josephine,

No where in the CFR does it say "personal mailing address." It says "mailing address" and the MuckRock is my mailing address. I have a receipt to prove it is my mailing address.

The D.C. Circuit Court will agree. You cannot add language to the CFR because you're looking for ways to avoid filing my request.

I'm writing about these tactics. I was prepared to do so in February and your press office talked me down and promised you'd work with us. That's apparently not happening. I've asked them to comment and I'm reaching out to our FOIA attorney to dispute this internal policy which has no basis under the law.

Thanks for your time.

We're past that. I'm aware of NASA's reasoning for this, because you claim to require a billing address. This is not supported by your agencies regulations and it is certainly not supported by the federal statute. I know this has been appealed before and I know NASA has walked the decision back before. I'm filing an appeal. I'm filing a complaint. And if necessary, I will file a lawsuit.

Dear Sir or Madam,

This letter constitutes an appeal under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and is submitted on behalf of the Daily Dot to the National Aeronautics and Space Administration (“NASA”).

The FOIA tracking number for the request is 17-HQ-F-00308.

On Jan. 24, 2017, the Daily Dot filed a FOIA request seeking records related to any potential orders originating from the White House concerning NASA’s communications with the public. NASA has denied this request, according to a letter dated Mar. 15, on the basis that the Daily Dot employee who filed the request did not provide a “personal mailing address.”

BACKGROUND

In its request filed Jan. 24, the Daily Dot asked NASA to provide “records relating to instructions (orders, directives, memos, or communications)” involving its communications with the public and/or members of news media. (In a subsequent phone call with NASA’s FOIA officer, the Daily Dot specified that these instructions should have originated with the White House.) Specifically, the request pertains to: NASA’s social media accounts; interactions with members of the news media; the dissemination of press releases; the publication of reports and factsheets; and/or the release of data through the U.S. government's data.gov portal.

As described in the initial request, the Daily Dot’s request followed breaking news that the Trump administration had issued a “media gag order” at multiple federal agencies, including the Environmental Protection Agency and Departments of Interior, Agriculture, and Transportation.

The Daily Dot argued for expedited processing on the basis that any responsive records concern “a matter of widespread and exceptional media interest in which there exists possible questions about the government’s integrity which affect public confidence.”

We demonstrated this exceptional interest by citing articles by prominent news organizations, which describe the White-House-directed “media blackout.” Those articles were published by the New York Times, the Washington Post, the Boston Globe, and the Public Broadcasting Service (PBS).

NASA denied our request for expedited processing on Jan. 27, citing 14 CFR § 1206.400. NASA stated that expedited processing is granted when compelling need is adequately demonstrated.

NASA subsequently denied our whole request on Jan. 27 when it asserted that the language it contained was “overly broad.” NASA’s FOIA officers, the agency said, were not required to have “clairvoyant capabilities” or participate in “fishing expeditions.” (Retrieved from: http://bit.ly/2ng4Dt9)

In fact, the Daily Dot’s request was limited to responsive records created on or after Jan. 19; the request was made only five days after that date, and it pertains only to records — if they exist — acquired by or created within NASA’s Offices of Communications and the Administrator. The request was, therefore, not overly broad, as NASA once asserted.

NASA reconsidered its decision on Jan. 27, after the Daily Dot contacted its Office of Strategic Communications for a comment. The office was told the Daily Dot was publishing an article based on NASA’s handling of the request. An agency spokesperson acknowledged that the FOIA officer — Josephine Shibly — could have taken additional steps to help facilitate the request, if she truly believed the request was overly broad, before proceeding with a search for any responsive records.

In a conversation with NASA’s Office of Strategic Communications on Jan. 27, the Daily Dot said it would hold an article about NASA’s decision and await a phone call from Ms. Shibly or her supervisor, Miriam Brown-Lam. This conversation occurred on or around Jan. 30. After the conversation, in which the Daily Dot clarified its request to the FOIA officer’s satisfaction, the FOIA officer claimed that a search for responsive records would begin immediately.

During this conversation, the FOIA officer advised the Daily Dot not to appeal NASA’s decision to deny its expedited processing request. The FOIA officer said it would be a waste of time because the search for responsive documents would begin immediately in any case. On the advice of the FOIA officer, the Daily Dot did not appeal at that time.

On Feb. 27, NASA sent a letter requesting a 10-day extension to complete the request, citing 14 CFR § 1206.403. The letter also cited 14 CFR § 1206.300(a), but did not indicate why. In a subsequent email on Mar. 10, the FOIA officer (Shibly) wrote: “Please be advised, that everyone submitting a FOIA Request via Muckrock, who are not a staff members must provide their personal mailing address when submitting a requests. We are still waiting for your information, please provide us with your mailing address no later than noon March 13, 2017.”

On Mar. 15, NASA sent another letter stating that it was “unable to process” the request. The reason given was that the Daily Dot had “failed to provide your personal mailing address as required per our FOIA regulation.” “Therefore,” the letter said, “we have administratively closed this request.”

NASA’S DENIAL VIOLATED THE AGENCY’S LEGAL OBLIGATIONS

The FOIA statute provides that NASA must “determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall [1] immediately notify the person making such request of such determination and [2] the reasons therefor, and [3] of the right of such person to appeal to the head of the agency any adverse determination.” 5 U.S.C. 552(a)(6)(A)(i).

Similarly, NASA's regulations provide that “the requester shall be sent an initial determination letter within 20 working days after the receipt of the request, as required by 5 U.S.C. § 552(a)(6).” See: 14 CFR § 1206.401.

The D.C. Circuit has determined that “within [20 days], the agency must at least [1] inform the requester of the scope of the documents that the agency will produce, as well as [2] the scope of the documents that the agency plans to withhold under any FOIA exemptions.” See: Citizens for Responsibility & Ethics in Washington v. FEC, 711 F.3d 180, 186 (D.C. Cir. 2013) The Court further explained that “the agency must at least: 9i) gather and review the documents; (ii) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and (iii) inform the requester that it can appeal whatever portion of the ‘determination’ is adverse.” Id. at 188.

NASA’s determination — received by the Daily Dot on Mar. 15, 2017 — did not fall within the statutorily required twenty-day period, which passed on Feb. 24, 2017.

THE DAILY DOT RENEWS ITS REQUEST FOR EXPEDITED PROCESSING

According to the federal FOIA statute, expedited processing is to be granted when two conditions are met. First, the request must be made by an organization “primarily engaged in disseminating information.” See 5 U.S.C. § 552(a)(6)(E)(v)(II); See also: Al-Fayed v. CIA, 254 F.3d 300, 306 (D.C. Cir. 2001) (“Al-Fayed”). Second, the request must cover information about which there is an “urgency to inform the public about an actual or alleged federal government activity.” Id.

First, The Daily Dot is an organization “primarily engaged in disseminating information.” Am. Civil Liberties Union v. Department of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (“ACLU v. DOJ”) (finding that The Daily Dot is a “representative of the news media” because it “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into distinct work, and distributes that work to an audience.”)

The Daily Dot was founded as a news company in 2012. The news articles on its website (www.dailydot.com) and its homepage collectively received 22,769,612 unique page views in January 2017.

Second, the D.C. Circuit Court has asserted that in determining whether there is an urgency to inform the public about government activity, and thus a “compelling need” for exigent disclosure, three factors are relevant: “( 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; and (3) whether the request concerns federal government activity.” Al-Fayed at 306. See also: 14 CFR § 1206.400.

In 2013, a District Court in the D.C. Circuit noted that “courts have found a ‘compelling need’ to exist when the subject matter of the request was central to a pressing issue of the day.” The subject of that case, the Court found, was not a “matter of current exigency to the American public,” because the documents central to the claimaint’s case were related to a 2-year-old investigation and the media interest was limited. Wadelton v. Department of State, 13-0412 ESH, 2013 WL 1760853 (D.D.C. Apr. 25, 2013) (“Wadelton”).

In Wadelton, the Court cited three cases which it asserted exemplified a “pressing issue of the day,” including “renewal of the USA Patriot Act” (ACLU v. DOJ), “a breaking news story about domestic surveillance of anti-war protesters,” (ACLU of N Cal. v. DOD, No. C 06-1698, 2006 WL 1469418 (N.D.Cal. May 25, 2006)), and “and an active debate over the reauthorization of certain Voting Rights Act provisions” (Leadership Conference on Civil Rights v. Gonzales, 404 F.Supp.2d 246 (D.D.C.2005)). Id.

In Al-Fayed, the D.C. Circuit court found that the issue of news coverage is especially critical to courts in determining whether a “compelling need” exists for expedited FOIA processing; The Court asserted that the “ultimate conclusion” with regards to expedited processing relies on important underlying facts, such as “the credibility of a claimant’s allegations regarding government activity, the existence of a threat to physical safety, or whether an issue is the subject of news coverage.” Al-Fayed at 308. (emphasis added).

In Wadelton, the Court noted that “[i]n cases where compelling need was found, plaintiff’s “cited numerous articles and reporters, 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.”

In a different case, the D.C. Circuit court stated that “matters of wider public concern” had been indicated by “a flurry of articles and television coverage, which has continued at least until last month.” See: Edmonds v. FBI, CIV.A. 02-1294 (ESH), 2002 WL 32539613 (D.D.C. Dec. 3, 2002)

Notably, the records requested by the Daily Dot from NASA, should they exist, pertain to a “pressing issue of the day,” (i.e., the so-called “media blackout” imposed by the White House at multiple federal agencies.) Wadelton. The Daily Dot cited “numerous articles and reporters” in its initial request to support this assertion. Id. The request was, therefore, the “subject of news coverage” and the “subject of a currently unfolding story.” Al-Fayed at 308 and 310.

NASA’S DENIAL CONSTITUTES UNAUTHORIZED RULEMAKING

NASA’s decision to administratively close the Daily Dot’s request is based on an — seemingly intentional — misinterpretation of 14 CFR § 1206.300(a).

The regulation states, in full: “A requester submitting a request for records must include his/her name and mailing address, a description of the record(s) sought (see § 1206.301), and must address fees or provide justification for a fee waiver (see § 1206.302) as well as address the fee category in accordance with § 1206.507. It is also helpful to provide a telephone number and email address in case the FOIA office needs to contact you regarding your request; however, this information is optional when submitting a written request. If a requester chooses to submit a request online via the NASA FOIA Web site, the required information must be completed. Do not include a social security number on any correspondence with the FOIA office.”

NASA stated in its denial letter that the Daily Dot “failed to provide [a] personal mailing address as required per our FOIA regulation.” The regulation does not state that a requester must provide a “personal mailing address,” it merely states that a “mailing address” must be provided. (Retrieved from: http://bit.ly/2n1OW6L)

The following address was provided to NASA in the Daily Dot’s initial request letter: MuckRock, DEPT MR 32658, 411A Highland Ave., Somerville, MA 02144-2516.

In this instance, the Daily Dot has given MuckRock written permission to receive any mail addressed to the Daily Dot, or any of its employees. (MuckRock being an organization founded in 2010 which has helped its members, including the Daily Dot, file more than 28,000 federal, state, and local FOIA requests.) Insofar as NASA should be concerned, MuckRock’s address is the Daily Dot’s mailing address.

In an email on Mar. 20, Miriam Brown-Lam wrote that the “mailing address” requirement is for “invoicing purposes.” She continued: “In your capacity as a staff writing for dailydot.com, you could provide that mailing address if they were responsible for any fees. If you are a staff writer for Muckrock and submitting a request in that capacity, you would use their mailing address. However, if you are using their service to submit a FOIA request, we need your mailing address (not theirs) in order to properly invoice.”

NASA previously detailed its issue with journalists using MuckRock’s address in a Jan. 31, 2017, email to FOIA researcher Michael Best: “We are required to have your personal address for billing purposes,” NASA wrote. (Retrieved from: http://bit.ly/2mJ9vDi).

This justification seems both illogical and unnecessary: If NASA is able to mail responsive records to the Daily Dot care of MuckRock, then any invoice NASA needs to submit could also be delivered in this matter. NASA appears to be setting a higher standard — or at least a different one — for receiving a payment than it is for ensuring that responsive records reach the requester.

This critique of NASA’s demands is, however, ultimately irrelevant: The fact of the matter is, nowhere in the Code of Federal Regulations section pertaining to NASA’s handling of public records requests does it state that a “mailing address” is specifically required for “invoicing purposes”—not in the CFR section cited by Brown-Lam, nor under 14 CFR 1206.507, which defines the “categories of requesters” and determines which requesters are eligible for fee waivers in regards to the search, review, and duplication of responsive records.

Furthermore, by injecting the word “personal” into the justification for its denial of the Daily Dot’s request, NASA’s FOIA program appears to be unilaterally engaged in unauthorized rulemaking—a process itself regulated by the Administrative Procedures Act. See: 5 U.S.C. § 553. (Insofar as we can tell, the phrase “personal mailing address” does not appear anywhere in the United States Code or in the Code of Federal Regulations.)

THE DAILY DOT RENEWS ITS REQUEST FOR A FEE WAIVER

The Daily Dot is an online news organization. Under 5 U.S.C. § 552(a)(4)(A)(iii), we are entitled to a fee waiver on the grounds that disclosure of the information sought is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

The Daily Dot is willing to pay fees for this request up to $50 without prior approval.

CERTIFICATION

The above information is true and correct to the best of our knowledge.

ELECTRONIC RECORDS

If this appeal is accepted, we renew our request for NASA to please furnish all responsive records in electronic format.

FURTHER CORRESPONDENCE

All correspondence regarding this request can be directed to me at foiaquery@gmail.com.

Please be aware that under 14 CFR § 1206.701(a), NASA “shall make a final determination on an appeal and notify the appellant thereof, within 20 working days after the receipt of the appeal by the Administrator's Office.” After 20 working days, the Daily Dot will consider this appeal constructively denied. Inaction after the time period allotted NASA under the CFR may result in litigation against the agency.

Furthermore, if it is determined through this appeal that NASA improperly denied the Daily Dot’s request, I ask that NASA’s FOIA officer justify all deletions to any responsive records by reference to specific exemptions of the act. As the law requires, we also expect you to release all segregable portions of otherwise exempt material. Finally, we request rolling production of these records as they are located and reviewed.

If you have any questions, do not hesitate to contact me at (469)387-1810.

Sincerely,

Dell Cameron
(on behalf of The Daily Dot)