Free Answer to Complaint - District Court of California - California

Case 3:07-cv-04997-MHP

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Filed 11/02/2007

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EXECUTIVE OFFICE OF THE PRESIDENT
O F F I C E OF MANAGEMENT AND B U D G E T
WASHIWGTDN. D C. 20503

January 26,2007 Mr. Justin Augustine Staff Attorney Center for Biological Diversity 1095 Market Street Suite 51 1 San Francisco, CA 941 03 [SENT VIA FACSIMILE (4 15) 436-9683 AND FIRST CLASS U.S. MAIL] Dear Mr. Augustine: This responds to your letter (which you have labeled as an appeal letter) dated November 7,2006, which was received on November 9,2006, concerning the Office of Managenlent and Budget's (OMB's) response of October 12,2006, to your organization's Freedom ofInfomation Act (FOIA) dated August 29,2006 which was receive by OMB's FOIA Ofice on September 14,2006.

In your FOIA request you askcd for:
"All documents relating to the development of the Final Rule setting average fuel economy standards for light trucks for themodel years 2008-201 1 (71 Fed. Reg. 1756617679, "rulemaking") that are not already posted on the internet in Docket No.s 200522223 and 2006-24509. This request includes communications among staff and with others that were created during the development of the Final Rule and the Proposed Rule (70 Fed. Reg. 51414-51466). This request includes, but is not limited to e-mail exchanges or other correspondence among agency staff and between agency staff and others, drafting documents internal reviews and critiques, inter-agency reviews, agency meeting notes, etc."

In our October 12, 2006 response letter, OMB stated:
"AAer a careful review of your request, we determined that your request was overly broad and, in order to respond to your request, you will need to narrow the scope of your search in order to enable OMB staff to appropriately respond. Accordingly, OMB is requesting that you refine the scope of your request to focus on the information that is of most interest to you." Whilc your letter is styled as an appeal, I do not consider your letter to constitute aproper appeal since OMB hasnot yet made a determination whether to grant or deny your FOIA request. Our October 12,2006, letter invited you to refine the scope of your search. However, your response letter did not refine your request, but instead stated your belidthat the FOlA

"XHIBIT 2 '

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Case 3:07-cv-04997-MHP

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Filed 11/02/2007

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request is detailed enough and furthcr statcd your belief that your request would not he too hroad or burdensome. In matters where overly broad FOIA requests are made, before making an inilial determination, OMB routinely contacts requesters to refine the range of their requests. Since you have not chosen to narrow the scope of your request, we will process your request by considering your request for a fec waiver. Under the FOIA statute and OMB's implementing regulations at 5 CFR 1303.70, fees otherwise chargeable in connection with a request for disclosure may be waived or reduced by the agency when OMB determines that: I.) disclosure is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government and 2.) is not primarily in the commercial interest of the requester.

In the matter at hand, your request specifically asked for documents that "are not alrcady
posted on the internet in Docket No.s 2005-22223 and 2006-24509." As a result, we anticipate that the documents we would locate would consist of pre-decisional opinions, discussions andlor draft versions of the proposed and final mIe which were being considered, commented upon and revised by Executive Branch staff. As such these documcnts would constitute intra-agency or inter-agency, pre-decisional, and deliberative communications, the disclosure of which would inhibit the frank and candid exchange of vicws necessary for effective government decision making. The release of such materials would chill the deliberative process, which would be contrary to the public interest. As a result, we anticipate that the vast majority ofthe documents that are the subject of your FOIA request would very likely be withheld from mandatory disclosure under FOIA exemption 5 (5 U.S.C. 5 552(b)(5)). Therefore, we would likely decline to release them. Moreover, we expect that the releasable portions of the potentially responsive documents will likely reveal only existing publicly known information. Furthermore, any documents would also containing attorney-client communications or confidential commercial informat~on be withheld from disclosure under FOIA exemptions 4 and 5. Moreover, as explained above, OMB would likely not release pre-decisional documents which would reveal government employees' deliberations on the corporate fuel average economy regulation. Consequently, such release would not contribute significantly to public understanding of the operations or activities o f the Government as required under OMB's implementing FOIA regulations at 5 CFR 1303.70. Therefore, your request for a fee waiver is denied. As provided under OMB's implementing POIA regulation at 5 CFR 1303, we have determined that your organization is a non-commercial requester. This means that your organization would be allowed two hours of search time at no cost and 100 copies at no cost. After that, your organization would be subject to costs including search costs based upon the salary (plus bencfits) of the individuals conducting the searches as well as photocopying fees of 15 cents per page. At this time, we estimate the cost of an electronic search alone (not including manual search time and not including photocopying costs) would be approximately $6,171 (six thousand one hundred and seventy-one dollars). Please notc that an electronic search is only one portion of a FOIA search and that the electronic search portion cost provided above is an estimate.

Case 3:07-cv-04997-MHP

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Filed 11/02/2007

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Please further note that OMB has not yet conducted a search (electronic or otherwise) of the records in responsc to your request. Consequently you are advised that the search costs estimated herein are preliminary approximate costs and will likely ultimately be significantly higher as our search progresses.

In addition, since your FOIA request would exceed $250, pursuant to OMB's FOIA regulations you are required to provide advance payment which we estimate, at this point, to be approximately $6,171. Please make your check or money order payable to the U.S. Treasury and mail it the attention ofMs. Dionne Hardy, OMB's FOLA Officer.
If you would like to reformulate your FOIA request in an effort to reduce the search and your request, please contact Ms. Hardy at (202) copying costs and to expedite our processing 01 395-7214 or via fax at (202) 395-3108. Please note that your FOIA request will not be processed by OMB until the FOIA fee issue is resolved. If we do not receive a response from your organization within 30 days of the dateof this letter, we will consider this FOIA request withdrawn and will close your request file.

1 am the official responsible for this denial of your fee waiver request and ilyou wish you may request reconsideration of this determination and submit an appeal in writing in accordance with OMB regulations at 5 CFR 1303.

Lauren Wright Deputy Assistant Director for Administration