MuckRock emails (Food and Drug Administration)

Emma Best filed this request with the Food and Drug Administration of the United States of America.

It is a clone of this request.

Tracking #

2018-4487

FDA1844264

Multi Request MuckRock emails
Est. Completion None
Status
Awaiting Appeal

Communications

From: Emma Best

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

Copies of all emails containing the terms "MuckRock", "Muck Rock" or "MuckRock.com", excluding emails sent to or from a MuckRock.com email address. Please include the complete email exchange for each email, including any emails that are being replied to as well as any subsequent replies.

I am a member of the news media and request classification as such. I have previously written about the government and its activities. I have a reasonable expectation of publication and my editorial and writing skills are well established. I discuss and comment on the files online and make them available through non-profits such as the Internet Archive and MuckRock, disseminating them to a large audience. While my research is not limited to this, a great deal of it, including this, focuses on the activities and attitudes of the government itself. As such, it is not necessary for me to demonstrate the relevance of this particular subject in advance.

Additionally, case law states that “proof of the ability to disseminate the released information to a broad cross- section of the public is not required.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); see Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814-15 (2d Cir. 1994). Further, courts have held that "qualified because it also had “firm” plans to “publish a number of . . . ‘document sets’” concerning United States foreign and national security policy." Under this criteria, as well, I qualify as a member of the news media.

Additionally, courts have held that the news media status "focuses on the nature of the requester, not its request. The provision requires that the request be “made by” a representative of the news media. Id. § 552(a)(4)(A)(ii)(II). A newspaper reporter, for example, is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information." As such, the details of the request itself are moot for the purposes of determining the appropriate fee category. As my primary purpose is to inform about government activities by reporting on it and making the raw data available, I request that fees be waived.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

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

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,

Emma Best

From: Food and Drug Administration

Good afternoon,

Please submit your request either by fax or through our online form. Please do not send requests by email.

Thank you,

Wilson M. Russ
Program Support Specialist
Office of the Executive Secretariat
Division of Freedom of Information
U.S. Food and Drug Administration
Tel: 301-796-8981
wilson.russ@fda.hhs.gov<mailto:wilson.russ@fda.hhs.gov>

[cid:image001.png@01D1C57E.DFA022A0]<http://www.fda.gov/>

[cid:image002.jpg@01D1C57E.DFA022A0]<https://www.facebook.com/FDA> [cid:image003.jpg@01D1C57E.DFA022A0] <https://twitter.com/US_FDA> [cid:image004.jpg@01D1C57E.DFA022A0] <http://www.youtube.com/user/USFoodandDrugAdmin> [cid:image005.jpg@01D1C57E.DFA022A0] <http://www.flickr.com/photos/fdaphotos/> [cid:image006.jpg@01D1C57E.DFA022A0] <http://www.fda.gov/AboutFDA/ContactFDA/StayInformed/RSSFeeds/default.htm>

From: Food and Drug Administration

Hi, please contact me regarding this request.

Thanks,

Sarah B. Kotler, J.D.
Director
Office of the Executive Secretariat
Division of Freedom of Information
U.S. Food and Drug Administration
Tel: 301-796-8976
Sarah.Kotler@fda.hhs.gov<mailto:Sarah.Kotler@fda.hhs.gov>

[cid:image001.png@01D1C57E.DFA022A0]<http://www.fda.gov/>

[cid:image002.jpg@01D1C57E.DFA022A0]<https://www.facebook.com/FDA> [cid:image003.jpg@01D1C57E.DFA022A0] <https://twitter.com/US_FDA> [cid:image004.jpg@01D1C57E.DFA022A0] <http://www.youtube.com/user/USFoodandDrugAdmin> [cid:image005.jpg@01D1C57E.DFA022A0] <http://www.flickr.com/photos/fdaphotos/> [cid:image006.jpg@01D1C57E.DFA022A0] <http://www.fda.gov/AboutFDA/ContactFDA/StayInformed/RSSFeeds/default.htm>

From: Emma Best

Sarah Kotler,

As requested in your email, I am emailing you about the request.

Emma Best

From: Food and Drug Administration

Hi, it would probably be best to talk by phone. I was not able to call you as you did not provide a telephone number in your request.

Thanks,

Sarah B. Kotler, J.D.
Director
Office of the Executive Secretariat
Division of Freedom of Information
U.S. Food and Drug Administration
Tel: 301-796-8976
Sarah.Kotler@fda.hhs.gov<mailto:Sarah.Kotler@fda.hhs.gov>

[cid:image001.png@01D1C57E.DFA022A0]<http://www.fda.gov/>

[cid:image002.jpg@01D1C57E.DFA022A0]<https://www.facebook.com/FDA> [cid:image003.jpg@01D1C57E.DFA022A0] <https://twitter.com/US_FDA> [cid:image004.jpg@01D1C57E.DFA022A0] <http://www.youtube.com/user/USFoodandDrugAdmin> [cid:image005.jpg@01D1C57E.DFA022A0] <http://www.flickr.com/photos/fdaphotos/> [cid:image006.jpg@01D1C57E.DFA022A0] <http://www.fda.gov/AboutFDA/ContactFDA/StayInformed/RSSFeeds/default.htm>

From: Emma Best

Sorry, but I don't communicate by phone - especially not for FOIA requests.

From: Food and Drug Administration

Well, that is a shame, as I believe requesters and agencies can best discuss requests by telephone and then confirm in writing.

Therefore, as you are refusing to speak with me by telephone about a FOIA request that you submitted, I will do my best to explain here:

FDA does not have the technological capability to search all emails of any FDA employee for a particular search term (such as “MuckRock”). We can search particular custodians for records. So, for example, you could ask for any emails to/from Sarah Kotler with the terms listed in your request. In addition, we would need some kind of timeframe, such as 2010-present or whatever is applicable to your request.

Once you can provide us with specific custodians to search and a timeframe, we can log your request. I remain available to discuss by telephone at the number below.

Thanks!

Sarah B. Kotler, J.D.
Director
Office of the Executive Secretariat
Division of Freedom of Information
U.S. Food and Drug Administration
Tel: 301-796-8976
Sarah.Kotler@fda.hhs.gov<mailto:Sarah.Kotler@fda.hhs.gov>

[cid:image001.png@01D1C57E.DFA022A0]<http://www.fda.gov/>

[cid:image002.jpg@01D1C57E.DFA022A0]<https://www.facebook.com/FDA> [cid:image003.jpg@01D1C57E.DFA022A0] <https://twitter.com/US_FDA> [cid:image004.jpg@01D1C57E.DFA022A0] <http://www.youtube.com/user/USFoodandDrugAdmin> [cid:image005.jpg@01D1C57E.DFA022A0] <http://www.flickr.com/photos/fdaphotos/> [cid:image006.jpg@01D1C57E.DFA022A0] <http://www.fda.gov/AboutFDA/ContactFDA/StayInformed/RSSFeeds/default.htm>

From: Emma Best

Sarah Kotler,

I appreciate your position. While Exchange, which it appears your agency uses, does allow users to search individual mailboxes, there is nothing stopping them from searching each mailbox successively. While this would be time consuming, it would be more than feasible and quite simple to calculate the search. Presumably the task could even be automated with minimal effort.

For the sake of simplicity, perhaps we can agree to limit the search to emails sent to or from FDA email addresses within its FOIA, legal, and PR offices, excluding all emails sent to or from a MuckRock.com address. I believe this would limit the scope of the request to something more palatable, while excluding addresses which are far less likely to have such emails.

Would that be agreeable?

Thanks for your time.

From: Food and Drug Administration

There are well over 125 individuals working in FOIA at FDA (we have a decentralized program so many parts of FDA have their own FOIA Office). The central FOIA Office, where I work, has 14 employees. The Office of the Chief Counsel has over 100 attorneys. The Office of External Affairs is also a large office. You have not provided a timeframe, or any subject matter. What are you looking for? Again, it would be helpful to discuss by telephone so we can get you the records you need in a reasonable amount of time. Please note that ferreting out any emails that are to/from Muckrock would actually make this more time consuming.

Sarah B. Kotler, J.D.
Director
Office of the Executive Secretariat
Division of Freedom of Information
U.S. Food and Drug Administration
Tel: 301-796-8976
Sarah.Kotler@fda.hhs.gov<mailto:Sarah.Kotler@fda.hhs.gov>

[cid:image001.png@01D1C57E.DFA022A0]<http://www.fda.gov/>

[cid:image002.jpg@01D1C57E.DFA022A0]<https://www.facebook.com/FDA> [cid:image003.jpg@01D1C57E.DFA022A0] <https://twitter.com/US_FDA> [cid:image004.jpg@01D1C57E.DFA022A0] <http://www.youtube.com/user/USFoodandDrugAdmin> [cid:image005.jpg@01D1C57E.DFA022A0] <http://www.flickr.com/photos/fdaphotos/> [cid:image006.jpg@01D1C57E.DFA022A0] <http://www.fda.gov/AboutFDA/ContactFDA/StayInformed/RSSFeeds/default.htm>

From: Emma Best

"You have not provided a timeframe, or any subject matter."

The timeframe is unrestricted, and the subject matter is emails that mention MuckRock. I've stated quite clearly what I'm looking for and how to calculate the search. I'm sorry that it will be time consuming, but that's the way it works sometimes. FDA using a less efficient email server than other options is not a reason to not perform the search, though I am willing to wait however long it takes.

Thanks!

From: Food and Drug Administration

So to confirm:

(1) You are asking for any emails with the term “MuckRock,” “Muck Rock” or “MuckRock.com” from any FOIA staff, Office of Chief Counsel staff, or Office of External Affairs staff (approximately 300 employees);

(2) You are not limiting the search with any additional subject matter;

(3) You are not providing any date restriction;

(4) You are not willing to discuss this request by telephone.

Is this correct?

Sarah B. Kotler, J.D.
Director
Office of the Executive Secretariat
Division of Freedom of Information
U.S. Food and Drug Administration
Tel: 301-796-8976
Sarah.Kotler@fda.hhs.gov<mailto:Sarah.Kotler@fda.hhs.gov>

[cid:image001.png@01D1C57E.DFA022A0]<http://www.fda.gov/>

[cid:image002.jpg@01D1C57E.DFA022A0]<https://www.facebook.com/FDA> [cid:image003.jpg@01D1C57E.DFA022A0] <https://twitter.com/US_FDA> [cid:image004.jpg@01D1C57E.DFA022A0] <http://www.youtube.com/user/USFoodandDrugAdmin> [cid:image005.jpg@01D1C57E.DFA022A0] <http://www.flickr.com/photos/fdaphotos/> [cid:image006.jpg@01D1C57E.DFA022A0] <http://www.fda.gov/AboutFDA/ContactFDA/StayInformed/RSSFeeds/default.htm>

From: Emma Best

That is correct. I apologize for the inconvenience of not speaking by telephone, but I find speaking on the phone distressful. It's also helpful to have an exact record of what was said, which isn't able to eliminate the chances of a miscommunication, but it does greatly reduce the risk of misremembering.

Thanks again!

From: Food and Drug Administration

*** This is an automated message. Please do not reply to this email. ***

Reference: FDA1844264
Dear Requester,
This is to confirm that you submitted a request for record(s) from the Food and Drug Administrationpursuant to the Freedom of Information Act.
FOIA staff will review your request to determine whether it has sufficient information to be processed;if so, you will receive another email as a formal acknowledgement of your request, with a control number for your request. If your request is not sufficiently described,or if there are any other deficiencies with your submission, FOIA staff will contact you via telephone or email.

From: Food and Drug Administration

The request has been rejected by the agency.

From: Food and Drug Administration

An acknowledgement letter, stating the request is being processed.

From: Food and Drug Administration

Note: Do NOT reply directly to this E-mail
MUCKROCK Emma Best
Re: Confirmation # FDA1844264
In Reply refer to: 2018-4717
The Food and Drug Administration (FDA) has received your Freedom of Information Act (FOIA) request for records regarding:
EMAILS WITH TERM MUCKROCK, MUCK ROCK, MUCKROCK.COM 06/11/2014 - 06/05/2018
Original Subject: Copies of all emails containing the terms "MuckRock", "Muck Rock" or "MuckRock.com", excluding emails sent to or from a MuckRock.com email address. Please include the complete email exchange for each email, including any emails that are being replied to as well as any subsequent replies. I am a member of the news media and request classification as such. I have previously written about the government and its activities. I have a reasonable expectation of publication and my editorial and writing...
We will respond as soon as possible and may charge you a fee for processing your request. If your informational needs change, and you no longer need the requested records, please contact us to cancel your request, as charges may be incurred once processing of your request has begun. For more information on processing fees, please see
http://www.fda.gov/RegulatoryInformation/FOI/FOIAFees/default.htm. If you have any questions about your request, please call Sarah B. Kotler, Director, Division Of Freedom Of Information at (301) 796-8976 or write to us at: (http://www.fda.gov/RegulatoryInformation/FOI/FOIAFees/default.htm)
Division of Freedom of Information, U.S. Food and Drug Administration
5630 Fishers Lane, Room 1035
Rockville, MD 20857
Fax:(301)827-9267
You also have the right to seek dispute resolution services from:
FDA FOIA Public Liaison
Office of the Executive Secretariat
5630 Fishers Lane, Room 1050
Rockville, MD 20857
E-Mail: FDAFOIA@fda.hhs.gov and/or:
Office of Government Information Services
National Archives and Administration
8601 Adelphi Road ? OGIS
College Park, MD 20740-6001
Telephone: 202-741-5770
Toll-Free: 1-877-684-6448
E-mail: ogis@nara.gov
Fax: 202-741-5769

From: Emma Best

I am appealing the rejection of my request as unreasonable and burdensome, as courts have held that just such a request is reasonable and compelled compliance (see attached).

Further, the assertion that the search cannot be performed centrally appears to be factually false, as most mail systems allow just such a thing - including those created by Microsoft, which (according to the headers for the FDA's emails) is used by the FDA. However, even granting the FDA's position on this for the sake of argument, the FDA's claim that the FOIA, legal and PR offices "would be forced to essentially shut down normal operations to complete the search for this request" is clearly and patently false, given that the amount of time required to perform email searches is a matter of seconds for each term - of which there are only three. Assuming, arguendo, no central search is possible (it is possible), most employees would find no responsive emails, and thus spend well under two minutes on the search. Even those employees who would find responsive materials would be able to export and forward them for review and release in a matter of moments, making each employee spend less time on the request than they would on a single trip to the restroom.

Additionally, several facts which the FDA cited (such as not restricting the search by date range) have no bearing on the complexity of the electronic search. According to the FDA's letter, this in particular is why the request is allegedly not reasonably described.

Further, a review of the decision for the case cited (Nation Magazine v. United States Customs Serv., 71 F.3d 885 (D.C. Cir. 1995)) does not support the FDA's decision.

Finally, the FDA's assertion that I refused to speak with them is patently false, as shown by the written record. I declined to speak by phone, instead using written communications only. I quite clearly was willing to communicate and answer questions, which I in fact did. The FDA's assertion to the contrary is not only factually false, it is blatantly made in bad faith.

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