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JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division MICHAEL T. PYLE (CSBN 172954 ) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7322 FAX: (415) 436-6748 e-mail: [email protected] Attorneys for Defendant Office of Management and Budget

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION NO. C 07-4997 MHP

DEFENDANT OFFICE OF MANAGEMENT AND BUDGET'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION OF FEE WAIVER ISSUE Date: February 25,2008 Time: 2:00 p.m. Judge: Honorable Marilyn Hall Patel Courtroom 15

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TABLE OF CONTENTS

I.
11.

INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS A. OMB. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. C. The NHTSA Rulemaking and OMB's Role in the Rulemaking. . . . . . . . . 3 CBD's FOIA Request and the Administrative Record Leading.to OMB's Denial of CBD's Fee Waiver Request. . . . . . . . . . . . . 5

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ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 . A. CBD's Motion Relies on Improper Material and Overstates The Policy and Standard of Review for Fee Waivers. . . . . . . . . . . . . . . . . . . . . . . 6 B. C. D. CBD Fails to Meet Its Burden of Establishing an Entitlement to a Fee Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Testing Compliance With Federal Statutes Does Not "Contribute Significantly to Public Understanding." . . . . . . . . . . . . . . . . . . . . . . . . . . 9 OMB is Unlikely to Release Information Not Already in the Public Domain So Further Disclosure Would Not "Contribute Significantly to Public Understanding." . . . . . . . . . . . . . . . . 11 NHTSA, the Rulemaking Agency, Has Disclosed Information About its Rulemaking So Further Disclosure From OMB Would Not "Contribute Significantly to Public Understanding." . . . . . . . . . . . . . . . . 14 CBD's Requested Relief is Inappropriate Because OMB Has Not Begun to Process CBD's Exceedingly Broad FOIA Request. . . . . . . . . . . . . . . 16

E.

F.
IV.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 .

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TABLE OF AUTHORITIES FEDERAL CASES

AFGE v. U.S. Department of Commerce, 632 F. Supp. 1272 (D.D.C. 1986), aff d , 907 F.2d 203 (D.C. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Carnev v. U.S. Department of Justice, 19 F.3d 807 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12,15 Carter v. U.S. Department of Commerce, 307 F.3d 1084 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Center for Biological Diversitv v. National Highwav Traffic Safetv Administration, 508 F.3d 508 (9th Cir. 2007) . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,16 Coastal States Gas Corn. v. Department of Enerq, 617F.2d854(D.C.Cir.1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Edmonds Institute v. U.S. Department of Interior, 460F.Supp.2d63(D.D.C.2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Irons v. FBI, 571 F. Supp. 1241 (D. Mass. 1983), rev'd on other grounds, 81 1 F.2d 681 (1st Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Judicial Watch. Inc. v. Department of Justice, 122 F. Supp. 2d 5 (D.D.C. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Judicial Watch, Inc. v. Department of Justice, [email protected]) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Judicial Watch. Inc. v. Rossotti, 326F.3d1309(D.C.Cir.2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Judicial Watch. Inc. v. United States Department of Ener~v, 310 F. Supp. 2d 271 (D.D.C. 2004), reversed in part on other grounds, 412 F.3d 125 (D.C. Cir. 2005) . . . . . . . . . . . . . . . . 12 Judicial Watch. Inc. v. Department of Justice, 2000WL33724693 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Judicial Watch. Inc. v. Department of Justice, Civ. No. 99-23 15,2000 WL 33724693 (D.D.C. Aug. 17,2000) . . . . . . . . . . . . . . . . . 11 Larson v. C.I.A., 843F.2d1481(D.C.Cir.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S Maricopa Audubon Societvv. U.S. Forest Sew., , 108 F.3d 1089 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,lL McClain v. United States Department of Justice, 13 F.3d 220 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
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Media Access Proiect v. FCC, 883 F.2d 1063 (D.C. Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 National Labor Rel. Board v. Sears. Robuck & Co., 421 U.S. 132 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

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National Treasuw Emplovees Union v. Griffin, 811 F.2d644(D.C.Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,10 National Wildlife Federation v. U.S. Forest Sew., 861 F.2d 1114 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 Pederson v. Resolution Trust Corn., 847 F. Supp. 851 (D. Colo. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Pollack v. Department of Justice, 49 F.3d 115 (4th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Securitv Archive v. Department of Defense, 880F.2d1381 (D.C.Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 United States Department of Defense v. Federal Labor Relations Authority, 510 U.S. 487 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,lO

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9

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1 6 Vaughn v. Rosen, 523 F.2d 11 136 (D.C. Cir. 1975) . . . . . . . . . . . . . . . . . . 17 VoteHemp. Inc. v. Drug Enforcement Admin., 237 F. Supp. 2d 55 (D.D.C. 2002) . . . . 18
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Van F r i ~ p Parks, v. Civ. No. 97-159,2000 U.S. Dist. LEXIS 20158 (D.D.C. March 16,2000) . . . . . . . . . 12

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DOCKETED CASES

People of the State of California ex rel. Edmund G. Brown, Attomev General of the State of California v. NHTSA et al., Case No. C 06-2654 SC (N.D. Cal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People of the State of California v. EPA et al., Case No. C 07-2055 JSW (N.D. Cal) . . . . . . . .
FEDERAL STATUTES

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5U.S.C.§552(A)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 . 5 U.S.C. §552(a)(4)(A)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.7 5 U.S.C. §552(a)(4)(A)(vii)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6

5 U.S.C. §552(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,11 5 U.S.C. $5701 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
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FEDERAL REGULATIONS
5 C.F.R. $1303.6O(d)(l). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5 C.F.R. $1303.70

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68 Fed. Reg. 74,908 (Dec. 29,2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 70Fed.Reg.51,414-51,466(Aug.30,2005) . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 , 5 71 Fed. Reg. 17,566-17679 (Apr. 6, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 , s 71 Fed. Reg. 17,577 (Apr. 6,2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,14-15

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I.

INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff Center for Biological Diversity's ("CBD" or "Plaintiff') motion for summary

adjudication, like its underlying fee waiver request, is premised on the theory that full fee waivers are appropriate whenever a non-profit group wants to know what some government agency is "up to"
- here,

to determine whether or not Defendant Office of Management and

Budget ("OMB) has complied with a variety of laws. There is no dispute that CBD has never offered a shred of evidence to even suggest that OMB violated any law in connection with the Notice of Proposed Rulemaking and Final Rule issued by National Highway Traffic Safety Administration ("NHTSA"). Nor does CBD offer any evidence or argument that any of these statutes even applied to OMB in connection with the rulemaking. Rather, CBD claims it is zntitled to a full fee waiver to determine whether or not there are any violations of law so that it :an bring a legal action if anything illegal is uncovered. Ironically, CBD's motion relies heavily on McCleNan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282 (9" Cir. 1987) ("McClellan"), but nowhere acknowledges the holding in that case: the plaintiffs there were denied a full fee waiver where the FOIA request sought information about an agency's legal compliance with law regarding an environmental matter. McClellan also answers all of CBD's policy arguments: no amount of FOIA policy entitles a plaintiff to a full fee waiver absent compliance with the statutory test. Like the plaintiffs in McClellan, CBD simply cannot meet the statutory and regulatory test: "disclosure of the information 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." 5 U.S.C. §552(a)(4)(A)(iii); see also 5 C.F.R. 4 1303.70 (OMB's FOIA regulation on waiver or reduction of fees). Resolution of the cross motions does not t r on the question of the importance of global un warming. Indeed, the amount of information in the public record about NHTSA's rulemaking undercuts CBD's argument because the marginal value of anything that might be produced by OMB would not add to what is already in the public record. The Ninth Circuit was able to evaluate NHTSA's rulemaking and determine the fate of that rulemaking without any documents
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from OMB other than what is already available. NHTSA's rulemaking obviously could not have Jeen based on anything that OMB did not share with NHTSA, likewise, anything that OMB did share with NHTSA would have been available by means of CBD's FOIA request to NHTSA and the Department of Transportation. Unlike NHTSA, which is an operational agency, OMB is a uniquely deliberative agency which provides advice to the President about proposed significant regulations, and thus the iocurnents sought by CBD are, almost by definition, documents that will be withheld pursuant to the deliberative process privilege. In short, little or nothing would be subject to "disclosure," much less any disclosure "likely to contribute significantly to public understanding of the 3perations or activities of the government." OMB respectfully requests that the Court deny Plaintiffs motion and instead grant OMB's motion for summary adjudication.

[I.

STATEMENT OF FACTS For the Court's convenience, OMB repeats the Statement of Facts from its motion for

summary adjudication since the same body of facts supports OMB's opposition to CBD's motion. A. OMB.

OMB submits that the most important part of the record for the Court to appreciate is that OMB plays a unique role among federal agencies: OMB is a deliberative agency which, among other things, provides advice to the President about proposed significant regulations. OMB did not issue the regulation at issue in this case and would not have had any authority to do so. Rather, OMB assists the President in the discharge of his budgetary, management, and other executive responsibilities. See Declaration of John F. Morrall, III filed on January 25, 2008 in support of OMB's Motion for Summary Adjudication ("Morrall Decl."), 73. Specifically, OMB assists the President in the preparation of the federal budget and in managing its execution by the agencies. Id. OMB also has a central role in providing leadership in the development, oversight and coordination of the Federal government's policies in procurement, financial management and the information, statistical, and regulatory arenas as well as in the
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implementation of those policies. Id. OMB promotes better program management, strengthens administrative management, develops agency-performance measures and improves coordination of the Executive Branch's various operations. Id. OMB has only about 490 employees, all of whom are located in Washington, D.C. Id., 74. The Office of Information and RegulatoIy Affairs ("OIRA") was established as part of OMB by Congress in the 1980 Paperwork Reduction Act. Id., 75. In addition to OIRA's role reviewing collections of information and information policy issues under the Paperwork Reduction Act, OIRA designates and reviews significant regulations under Presidential Executive Order 12866 (1993). Id. Under Executive Order 12866, OIRA consults with Federal agencies and reviews draft significant regulations and regulatoy analyses concerning the regulations' potential effects on society, both their benefits and costs. Id. As the Executive Order directs, OIRA reviews significant regulations (approximately 600 per year), in draft form before publication to ensure agency compliance with the Executive Order. Id. OIRA has been conducting this centralized regulatoy review function since 1981 (id.), and has thus served Presidents from both major political parties. OIRA staff work with Federal agencies to review and evaluate planned agency regulations on a wide variety of matters. Id., 76. OIRA staff review an agency's draft regulation and discuss the regulation with the agency staff as well as with other agencies that might be affected by the draft regulation before it is issued publicly in the Federal Register as either an Advanced Notice of Proposed Rulemaking ("ANPRM), Notice of Proposed Rulemaking ("NPRM) or Final Rule. Id. OIRA played this role in connection with the rulemaking at issue in this case, as discussed below.

B.

The NHTSA Rulemaking and OMB's Role in the Rulemaking.

On December 12,2003, NHTSA published an Advanced Notice of Proposed Rulemaking ("ANPRM) in the Federal Register, proposing Corporate Average Fuel Economy ("CAFE") requirements for light trucks (such as pick-up trucks, minivans and sport utility vehicles) for model years 2008 through 2011. See 68 Fed. Reg. 74,908 (Dec. 29,2003). Eighteen months later, on August 30, 2005, NHTSA published a Notice of Proposed Rulemaking ("NRPM"),
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proposing CAFE standards for light trucks for model years 2008 through 201 1. See 70 Fed. Reg. 51,414 (Aug. 30,2005). NHTSA received more than 45,000 comments on the NPRM and a Draft Environmental Assessment from states, consumer and environmental organizations, automobile manufacturers and associations, members of Congress and private individuals. See 71 Fed. Reg. At 17,577. NHTSA's final rule was issued on April 6,2006. See 71 Fed. Reg. 17,566. The public regulatory docket related to NHTSA's rulemaking process is available at www.repinfo.gov. OMB's role with respect to NHTSA's rulemaking process was limited. Pursuant to OIRA's authority under Executive Order 12866, OIRA conducted a review prior to publication of NHTSA's draft Final Rule regarding NHTSA's standards for CAFE. See Morrall Decl., 78. Prior to issuance of the final rule on April 6,2006, OIRA consulted with an interagency panel consisting of Executive Branch agencies that had an interest in CAFE (such as NHTSA, Department of Energy, EPA, etc.). See id., 77. OIRA used this group as a mechanism for interagency comment on the draft proposed rule. Id. Any comments OIRA received during this process were provided to NHTSA for its consideration. Id., 77. Thus, the documents ultimately at issue in this case concern the internal inter-governmental deliberations leading up to various decisions related to issuance of the Final Rule, including communications anlong OMB staff.
Id., 78; Morrall Decl., Exh. 6 at p. 3.

The most recent development in NHTSA's final rule stems from the Ninth Circuit's decision in Centerfor Biological Diversity v. National Highway Trafic Safety Administration, 508 F.3d 508 (91hCir. 2007). The court there held that NHTSA's final rule was arbitrary and capricious and contrary to the Energy Policy and Conservation Act of 1975 ("EPCA") in certain respects; the Court remanded the matter to NHTSA to promulgate new standards and also to prepare a full Environmental Impact Statement. Important for purposes of this motion is the fact that OMB was not a party to any of the Petitions resulting in the Ninth Circuit opinion and the fact that the opinion confirms that it is NHTSA - not OMB - who is and was responsible for the final rule.

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C.

CBD's FOIA Request and the Administrative Record Leading to OMB's Denial of CBD's Fee Waiver Request.

The FOIA request at issue in this case CBD's August 29,2006 FOIA request to OMB, DOT and the National Highway Traffic Safety Administration. Morrall Decl., Exh. 1. CBD -equested "All documents relating to the development of the Final Rule setting average fuel :conomy standards for light trucks for model years 2008-201 1 (71 Fed. Reg. 17566-17679, 'rulemaking") that are not already posted on the internet in Docket Nos. 2005-22223 and 2006,4309. This request includes communications among staff and others that were created during he development of the Final Rule and the Proposed Rule (70 Fed. Reg. 51414-5 1466). This ,equest includes but is not limited to e-mail exchanges or other correspondence among agency staff and others, draft documents, internal reviews and critiques, inter-agency reviews, agency neeting notes, etc." Morrall Decl., Exh. 1 at pgs. 1-2. In the same letter CBD requested a fee waiver, asking OMB and the other recipients to "waive all fees in connection with this matter."
rd. at pgs 2-5.

On October 12, 2006, OMB replied to CBD's FOIA request in a letter stating that the 2OIA request was "overly broad" and inviting CBD to narrow its request. Morrall Decl., Exh. 2. On November 7, 2006, CBD submitted a letter that it styled as a "Freedom of hfomation Act Appeal" to OMB. The letter did not narrow or otherwise refine the scope of C'BD's FOIA request. Morrall Decl., Exh. 3. On January 26,2007, OMB responded to CBD's "Freedom of Information Act Appeal" ~fNovember 7,2006. OMB stated that it did not consider CBD's letter to be an appeal because 3MB had yet to make a determination as to whether to grant or deny the FOIA request. OMB's etter then processed CBD's request for a fee waiver. OMB determined that "the vast majority ,f the documents that are the subject of your FOIA request would very likely be withheld from nandatory disclosure under FOIA exemption 5 (5 U.S.C. $552(b)(5)" and that CBD had thus railed to satisfy the standard in 5 C.F.R. $1303.70 because the FOIA request would not lead to a -elease that would "contribute significantly to public understanding of the operations or activities ,f Government." OMB further advised CBD that it had determined that CBD was a non:ommercial requester and advised CBD that the FOIA request would not be processed by OMB
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until the fee issue had been resolved. Morrall Decl, Exh. 4. On January 29,2007, CBD submitted another "Freedom of Information Act Appeal" to OMB. In this letter CBD argued that it should be granted a full fee waiver by OMB. Morrall Decl., Exh. 5. On June 12,2007, OMB denied CBD's appeal of the denial of its request for a fee waiver. OMB advised CBD in this letter that ' k e have again reviewed your request for a fee waiver." OMB explained the four reasons for its decision to deny CBD's appeal: (1) NHTSA, not OMB, issued the proposed and final rules at issue and NHTSA has already made public a substantial amount of information about the rulemaking; (2) OMB would be unlikely to release a significant amount of information not already in the public domain; (3) OMB would be unlikely to release information "likely to contribute significantly" to the public's understanding of whether or not OMB had complied with certain statutes; and (4) CBD had not established that disclosure of documents to it would contribute to the understanding of the public at large. Morrall Decl., Exh. 6. On July 19, 2007, CBD made a final submission to OMB, in a letter it styled as "Additional Information In Support of Fee Waiver Request." Morrall Decl., Exh. 7. OMB did not revisit its denial of CBD's request for a fee waiver as a result of anything in this letter. This litigation then ensued by which CBD seeks to obtain an order that it is entitled to a full fee waiver.
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ARGUMENT A. CBD's Motion Relies on Improper Material and Overstates The Policy and Standard of Review for Fee Waivers.

CBD's request for a fee waiver is reviewed de tzovo by this Court but "the court's review of the matter shall be limited to the record before the agency." McClellan, 835 F.2d at 1284 (citing 5 U.S.C. §552(a)(4)(A)(vii)). CBD admits this, stating that this Court's review of CBD's fee waiver request is "limited to the facts and arguments in the record before the agency." CBD Memo. at 8:19120.
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Curiously, however, CBD relies heavily in its motion on "facts and arguments" that were not presented to OMB prior to OMB's denial of CBD's fee waiver request, namely, the Declaration of Kassia Siege1 and the exhibits to that declaration, and Exhibits C, E, F, & G to the Declaration of Justin Augustine. Those materials should be disregarded by this Court, as was held by a case relied upon by CBD. See Pederson v. Resolufion Trust Corp., 847 F. Supp. 85 1, 854 n.3 (D. Colo. 1994) ("as requested by the RTC, the court will disregard the plaintiffs exhibits other than the administrative record."). Moreover, the actions of DOT or other federal agencies are not relevant here because fee waiver requests are resolved on a case-by-case basis.

See, e.g..Media Access Project v. FCC, 883 F.2d 1063, 1065 (D.C. Cir. 1989) (noting that
requester may seek waiver of fees on "case-by-case" basis); Edmorzds Inst. v. U.S. Dep 't of

Interior, 460 F. Supp. 2d 63,75 (D.D.C. 2006) ("applications for fee waivers are considered on a
case-by-case basis"). In addition, DOT and NHTSA, as operational agencies responsible for the rulemaking, could reasonably be expected to have documents about the rulemaking that OMB, a deliberative agency not responsible for the rulemaking, would not. CBD also overstates the role of policy in favor of its motion. Ironically, CBD relies most heavily on McClellari for its policy arguments, yet in that very case the Ninth Circuit held that "[elven in light of legislative intent that courts construe the amended statute liberally, requesters do not deserve a complete waiver of fees." McClellan, 835 F.2d at 1287. CBD thus overstates things when it claims that FOIA's fee waiver provisions were "created to guarantee . . . access" to records without charge and that non-commercial requesters need only demonstrate a "minimal showing of their legitimate intention to use the requested information that contributes to public understanding of the operations of government agencies" to obtain a full fee waiver. CBD Mem. at 20:23-28. FOIA creates no such rights: CBD must meet the statutory and regulatory test: "disclosure of the information 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." 5 U.S.C. §552(a)(4)(A)(iii); see also 5 C.F.R. §1303.70. Tellingly, in its recitation of the standard on page 20 of its Memorandum, CBD omits the word "significantly" and thus ignores a key
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limitation on the ability of CBD to obtain a fee waiver. CBD gets no automatic entitlement to a fee waiver due to its non-profit status. McClellan, 835 F.2d at 1284 ("public interest groups must satisfy the statutory test"). Indeed, there is a good reason to require CBD to pay for the costs that would be imposed on OMB in processing CBD's request. As Judge Easterbrook has written in a decision affirming an agency's denial of a fee waiver: "Even a request from a newspaper or nonprofit would not lead to an automatic waiver of fees. Prices serve to ration access; university libraries must pay for their books and journals. The press has an insatiable appetite for information, and the need to pay something for it leads everyone to ask whether the data are worth the marginal costs." McClarn v. United States Dep't of Justice, 13 F.3d 220,221 (7thCir. 1993); VoteHemp,Inc. v. Drug Enforcement Admin., 237 F. Supp. 2d 55,59,64-66 (D.D.C. 2002) ("Plaintiffs status as a nonprofit organization dos not relieve it of its obligation to satisfy the statutory requirements for a fee waiver) (citation omitted); SecuriQ Archive v. Dep't of Defense, 880 F.2d 1381, 1384 (D.C. Cir. 1989) (noting elimination from FOIA bill of preference for fee waivers for non-profit ~rganizations). In fact, "all FOIA requesters have an equal, and equally qualified, right to information" so the fact that CBD is "seeking to vindicate" certain interests "is irrelevant to the FOIA analysis." United States Dep't of Defense v. Federal Labor Relations Auth., 510 U.S. 487,499 (1994).

B.

CBD Pails to Meet Its Burden of Establishing an Entitlement to a Fee Waiver.

FOIA Section 552(a)(4)(iii) establishes a two-part test for establishing whether or not an agency is required to waive or reduce fees for a FOIA request: disclosure must be "likely to contribute significantly to public understanding of the operations or activities of the government," and disclosure must be "not primarily in the commercial interest of the requester." See also McClellan, 835 F.2d at 1284 (setting out standard). The FOIA provides that each agency must promulgate regulations establishing procedures and guidelines for determining when such fees should be waived or reduced. See 5 U.S.C.

5 552(a)(4)(A)(i).

OMB's fee

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waiver regulation, 5 C.F.R. $1303.70, is essentially identical to the two-part statutory test, stating that fees "shall be waived or reduced where it is determined that 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 is not primarily in the commercial interest of the requester." The burden is on CBD to establish that it satisfies this statutory and regulatory test. See

McClellan, 835 F.2d at 1285 (quoting National Treasury Employees Union v. Grzfin, 811 F.2d
644, 647 (D.C. Cir. 1987)). See also Larson v. C.I.A.,843 F.2d 1481, 1483 (D.C. Cir. 1988). In the present case, CBD cannot meet that burden for the reasons set forth below. See Sections 1I.C-E, below.

C.

Testing Compliance With Federal Statutes Does Not "Contribute Significantly to Public Understanding."

CBD's motion states that its FOIA request "seeks to acquire, analyze and publicize how and why the regulations were set at the level chosen by DOT and not at a higher level that would make use of the available fuel economy technologies." CBD Memo. at 6: 1-3 (citing Augustine Decl., Exh. A at 3). But that is not what CBD said in its FOIA request. Rather, CBD said (at the page cited by CBD): "The documents requested. . . are certain to shed light upon the agencies' compliance with EPCA and the Administrative Procedures Act." See Augustine Decl., Exh. A at 3. Later in the FOIA request CBD said: "The requested documents will be used to determine whether the agencies complied with EPCA, its implementing regulations, and the Administrative Procedures Act (5 U.S.C. $$701 et seq.). . . . We have enforced the provisions of our nation's laws and regulations many times through information gained from FOIA requests like this one. We intend to use the documents requested in a similar manner." Id. at 5.

In McClellan, the Ninth Circuit addressed a fee waiver request sought by a nonprofit
association that sought information about water pollution at the McClellan Air Force Base in the Sacramento area. McClellan, 835 F.2d at 1283. In the group's letter requesting a fee waiver the group stated that the information "may be used in litigation to ensure that agencies comply with federal law" among other reasons. Id. at 1285. The Ninth Circuit held that such conclusory
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statements did not support a fee waiver (id., citing National Treasury Employees Union v.

Griffin, 81 1 F.2d 644,647 (D.C. Cir. 1987); moreover, the Court explained that - taken to its
logical extreme - a public interest group could "demand fee waiver on a request for all U.S. government documents, on the basis that the information might be used in litigation to ensure that agencies comply with federal law." Id. (emphasis in original). CBD's basis for its fee waiver request suffers from the same critical defect. It is not a sufficient basis to obtain a fee waiver by contending that the requested information will bear on whether or not some federal agency is complying with federal law, particularly where, as here, there is no evidence of any kind that OMB did anything improper with respect to the ~ l t m a k i n g
at issue. Indeed, it is hard to conceive of how OMB could have done anything improper given

that the rulemaking in question was never OMB's rule to issue. See, e.g., VoteHemp, Inc. v.

DmgEnforcement Admin., 237 F. Supp. 2d 55,61 (D.D.C. 2002) (rejecting as "rank
speculation" allegations that plaintiff entitled to fee waiver based on allegation that agency had "ulterior motive" when it published interpretive rule); AFGE v. U S . Dep 't of Commerce, 632 F . Supp. 1272, 1278 (D.D.C. 1986) (finding union's allegations of agency malfeasance too zphemeral to warrant waiver of fees without evidence that informative information would be disclosed), aff'd, 907 F.2d 203 (D.C. Cir. 1990). CBD fails to address McCleNan, and instead relies upon United States Department of

Defense v. Federal Labor Relations Auth., 510 U.S. 487,495-96 (1994) and Judicial Watch, Inc.

v. Rossotti, 326 F.3d 1309, 1313 (D.C. Cir. 2003). Neither case supports CBD's argument that a
non-profit organization is entitled to a full fee waiver whenever it seeks documents about what some government agency is "up to." Indeed, United States Department of Defense is not a fee waiver case at all
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and thus offers no holding on point that could help CBD. CBD's citation to

the Judicial Watch, Inc. v. Rossotti case is closer to the mark, but in that case Judicial Watch submitted a very specific FOIA request regarding an allegation that the Commissioner of the IRS had awarded a government contract to a private company he co-founded and in which he retained an ownership interest. Needless to say, CBD has made no similar allegations against OMB. Moreover, CBD's fee waiver request contained nothing so specific.
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Indeed, CBD's fee waiver request should be denied just as Judicial Watch has been repeatedly denied when it has claimed an entitlement to a fee waiver on general statements about seeking documents to "deter government corruption'' or examine "the integrity and operations" of a government agency. See Judicial Watch, Inc. v. Dep 't of Justice, 122 F. Supp 2d 5 (D.D.C. 2000) (granting DOJ's motion for partial summary judgment regarding fee waiver issue);

Judicial Watch, Inc. v. Department ofJustice, 185 F. Supp. 2d 54 (D.D.C. 2002) (same); Judicial Watch, Inc. v. Dep 't ofJustice, Civ. No. 99-2315, 2000 WL 33724693 (D.D.C. Aug. 17, 2000)
(same). In each of these cases the court relied on McClellan for the proposition that conclusory statements and assertions are insuficient to support fee waiver requests. See Judicial Watch,

Inc. v. Dep 't of Justice, 122 F. Supp 2d at 9; Judicial Watch, Inc. v. Dep 't of Justice, 185 F.
Supp. 2d at 60; Judicial Watch, Inc. v. Dep't of Justice, 2000 WL 33724693 at*5.

D.

OMB is Unlikely to Release Information Not Already in the Public Domain So Further Disclosure Would Not "Contribute Significantly to Public Understanding."

In its initial denial of CBD's fee waiver request by letter dated January 26,2007 and
again in its denial of CBD's appeal by letter dated June 12,2007, OMB consistently explained that OMB would be unlikely to release a significant amount of information not already in the public domain because of OMB's unique role as a deliberative agency which provides advice to the President. OMB explained that it expected that "most of the responsive documents that OMB would locate . . . would consist of pre-decisional opinions, discussions, and/or draft versions of the proposed and final rule, which were being considered, commented upon and revised by Executive Branch staff' - quintessential pre-decisional, deliberative communications exempt from disclosure under FOIA Exemption 5 , 5 U.S.C. §552(b)(5). OMB based this expectation on its "experience in responding to FOIA requests seeking similar types of deliberative materials." CBD argues that it was improper for OMB to consider the privileged nature of the requested documents based on some case law holding such considerations to be generally improper under FOIA. CBD Mem. at 18-19. However, the cases relied upon by CBD
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acknowledge that it is proper to deny a fee waiver on this basis in those "rare cases" where the FOIA request is for documents that are "patently exempt" from disclosure. See Carney v. U.S.

Dep't ofJrisrice, 19 F.3d 807, 815 (2d Cir. 1994); Judicial Watch, Inc. v. UnitedStates Department ofEnergy, 310 F. Supp.2d 271,295 (D.D.C. 2004), reversed in part on other g-rounds, 412 F.3d 125 (D.C. Cir. 2005).
OMB submits that these cases give insufficient attention to the language of FOIA itself, which requires CBD to establish that "disclosureof the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government" and thus the focus of the inquiry should be on what information would be disclosed and thus it is highly relevant if a request will not lead to the disclosure of information because of well-established privileges. A particularly good example is Van Fripp v. Parh, Civ. No. 97-159, 2000 U.S. Dist. LEXIS 20158 (D.D.C. March 16,2000), a case in which a prisoner sought to obtain information zontained in the Inmate Trust and Welfare Fund ("ITWF") from the Bureau of Prisons ("BOP") and sought a full fee waiver. The plaintiff sought the records and charged misappropriation of the ITWF funds. The court called that request a "fishing expedition" and that in the "absence of independent evidence of misappropriation" plaintiffs request "is too ephemeral to compel the public to pay for his request." Id. at *16-17. Furthermore, and particularly on point, the court noted that due to privacy interests plaintiff would only be able to get ITWF information about himself and not about other inmates and thus plaintiff could not demonstrate an entitlement to a fee waiver in light of the limited amount of information that would actually be disclosed. Id. at *17-18. OMB submits that the unique role it plays among federal agencies
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as a deliberative

agency which provides advise to the President about proposed regulations makes this the "rare
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case" in which it is proper for an agency to decline to grant a fee waiver in light of the privileged nature of the material likely to be found upon a search for responsive documents. That is particularly true, here, since OMB did not, and could not, have issued the regulation in question. As OMB explained in its denial of CBD's fee request, OMB relied on its
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"experience in responding to FOL4 requests seeking similar types of deliberative materials" to make the judgment that a fee waiver was not appropriate in light of the privileged nature of what would be found in a search. See Morrall Decl., Exh. 6 at p. 3. In fact, at the time CBD's fee waiver request was under consideration OMB was in the process of litigating a case in which California's Attorney General sought a subset of the documents at issue in CBD's FOL4 request. That case, People of the State of California ex rel. Edmund G. Brown, Attorney General of the

State of California v. NHTSA et al., Case No. 06-2654), ended on or about June 13,2007 after
Judge Conti entered judgment for OMB following the Court's grant of OMB's motion for summary judgment. Prior to sending the June 12,2007 letter denying CBD's appeal of the denial of its fee waiver request, OMB reviewed those documents and determined that the documents in question contained internal inter and intra-governmental predecisional deliberations leading up to various decisions related to the issuance of the NPRM. See Morrall Decl., 7 8. Even a cursory review of the deliberative process privilege underscores that it would apply to most of the documents sought by CBD, highlighting a reason for denying CBD's fee waiver request. The purpose of the privilege is to "prevent injury to the quality of agency decisions." National Labor Rel. Bd. v. Sears, Robuck & Co., 421 U.S. 132,149,154 (1975). Specifically, the deliberative process privilege serves to assure that agency staff can freely opine on proposed policies without fear of public criticism, and to prevent the revelation of preliminary views that do not reflect the agency's ultimate position. Coastal States Gas Corp. v. Department

ofEnergy, 617 F.2d 854, 866 (D.C. Cir. 1980). "By maintaining the confidentiality of the giveand-take that occurs among agency members in the formulation of policy," the privilege "encourages frank and open discussion of ideas, and hence, improves the decisionmaking process." National Wildlife Fed'n v. U.S. Forest Sen., 861 F.2d 1114, 11 17 (9Ih Cir. 1988). To fall within the deliberative process privilege, a document must be both "predecisional" and "deliberative." Carter v. U.S. Dep 't of Commerce, 307 F.3d 1084, 1089 (9Ih Cir. 2002). A document is "deliberative" if it is "a direct part of the deliberative process" in that it "makes recommendation or expresses oplnions on legal or policy matters." Vaughn v. Rosen,
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523 F.2d 11 136, 1143-44 (D.C. Cir. 1975). It is "predecisional" if it was generated before the adoption of an agency policy, National Wildlife Fed'n, 861 F.2d at 1117, and was prepared "to assist an agency decisionmaker in arriving at his decision." Maricopa Audubon Soc iy v. U.S.
Forest Serv., 108 F.3d 1089, 1093-94 (9IhCir. 1997).

Following these standards, courts have held that the deliberative process privilege covers "all 'recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." National
Wildlife Fed 'n, 86 1 F.2d at 11 18-19. Furthermore, the privilege shields not only deliberative

communications, but also information that would reveal the agency's deliberative process itself.
Id. at 1119.

CBD's FOtA request plainly seeks documents that, almost by definition, are protected from disclosure under the deliberative process privilege. The FOIA request seeks "all documents relating to the development of the Find Rule" . . . including "communications among staff and others that were created during the development of the Final Rule and the Proposed Rule." Morrall Decl., Exh. 1 at p. 1 (emphasis added). CBD further specifies that its request "includes but is not limited to e-mail exchanges or other correspondence among agency staff and others, draft documents, internal reviews and critiques, inter-agency reviews, agency meeting notes, etc." Id. Virtually every document fitting this description would be withheld from disclosure under the deliberative process privilege.

E .

NHTSA, the Rulemaking Agency, Has Disclosed Information About its Rulemaking So Further Disclosure From OMB Would Not "Contribute Significantly to Public Understanding."

As explained above, it was NHTSA, not OMB, that issued the proposed and final rules for the rulemaking at issue in CBD's FOIA request. The DOT and NHTSA have already made available to the public the regulatory dockets for the rulemalung; No. 2005-22223 for the proposed rule and 2006-243090 for the final rule. See Morrall Decl., Exh. 6 at p. 2. The proposed rule (comprising 53 Federal Register pages) and final rule (comprising 49 Federal Register pages) obviously provide the best explanation of NHTSA's decision-making in this rulemaking. In addition, the regulato~y docket includes copies of the "over 45,000 individual
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submissions to the rulemaking docket" that NHTSA received "prior to the close of the comment period, including ones from vehicle manufacturers and associations, environmental and consumer advocacy groups, members of Congress and private individuals." See 71 Fed. Reg. 17577. Vast amounts of material about the proposed and final rules are part of the public docket and available from NHTSA and DOT. Logic dictates that nothing further from OMB could add to the existing record about the reasons for the ~ k m a k i n g .First, NHTSA's rulemaking ~bviously could not have been based on anything that OMB did not share with NHTSA. Second, anything that OMB did share with NHTSA would have been subject to disclosure (or properly withheld) during the course of CBD's FOIA request to NHTSA and the DOT. After all, CBD's FOIA request to OMB was also made to NHTSA and DOT at the same time. See Morrall Decl, Exh. 1. Ultimately, anything that might be obtained from OMB through the FOIA request would zither be something already in the public domain or patently subject to exclusion from FOIA pursuant to the deliberative process privilege or other privileges. OMB should not be required to give CBD a fee waiver so that it can burden the agency with an exercise that would not "contribute significantly to public understanding" of anything regarding the proposed or final rules. Where, as here, there has been so much public disclosure that further disclosures would not significantly contribute to public understanding, a fee waiver request is properly denied. See, e.g., VoteHen~p, v. Drug Enforcement Admin., 237 F. Supp. 2d 55, 61 (D.D.C. 2002) Inc. (concluding that plaintiff had not shown how requested documents would give public greater understanding of agency policy than was already available; denial of fee waiver request affirmed in grant of summary judgment to defendant); Carney v. U.S. Dep 't of Justice, 19 F.3d 807,815 (2d Cir. 1994) ("where records are readily available from other sources . . . further disclosure by the agency will not significantly contribute to public understanding"). CBD contends in its motion that OMB cannot rely on the prior public disclosure of the requested information because, CBD says, "OMB did not provide any explanation of where in
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the public domain the information requested resides." CBD Mem. at 17:19-28 (and citing cases). To the contrary, OMB has been quite clear that information about NHTSA's rulemaking can be obtained from h J T S A and DOT and pointed out where public documents could be found about the rulemaking. See Morrall Decl., Exh. 6 (6112107 OMB letter) at 2-4. And, again, CBD had enough information to prevail in Center for Biological Diversity v. National Highway

Traffic Safety Admin, 508 F.3d 508 (9IhCir. 2007) so it is hard to see what additional information
that would "contribute significantly to public understanding" could emerge from the FOIA request submitted to OMB. F. CBD's Requested Relief is Inappropriate Because OMB Has Not Begun to Process CBD's Exceedingly Broad FOIA Request.

CBD's motion asks for a "permanent injunction order Defendant to . . . timely produce the requested documents." CBD Memo. at 1 :26-27. In the proposed order submitted with its motion CBD asks that OMB be required to "provide documents responsive to Plaintiffs [sic] request by March 25, 2008." CBD Prop. Order at 2:4-5. If this Court decides to grant CBD relief on its request for a full fee waiver, then the Court should give OMB adequate time to process CBD's FOIA request. OMB has had no obligation to process CBD's FOIA request and will have no such obligation unless and until this Court resolves the fee waiver dispute. See 5 C.F.R. $1303.60(d)(l) (OMB fee regulation providing that OMB may require advance payment "before work is commenced . . . on a request" where OMB estimates that charges will exceed $250). See also, e.g.,Irons v. FBI, 571 F. Supp. 1241, 1243 (D. Mass. 1983) (holding similar DOJ regulation valid: government "does not want to expend the effort to conduct a search for documents until it has received some assurance that it will be reimbursed for the effort"), rev'd on other grounds, 81 1 F.2d 681 (Ist Cir. 1987); Pollack v. Dep't ofJustice, 49 F.3d 115, 120 (4thCir. 1995) (DOJ "had the authority to cease processing [the requester's] request" after he failed to make advance payment or promise to pay). OMB advised CBD that it would not be processing CBD's FOIA request in light of the unresolved fee waiver issue by letter in June 2007. See Augustine Decl., Exh. K (6112107 OMB letter) at p. 5 ("Please note that your FOIA request will not be processed by OMB
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until the advance payment is made or the fee issue is otherwise resolved."). CBD is thus in no position to complain about any delays in processing its request because those delays could have been avoided had CBD been willing to narrow its request or otherwise resolve its fee waiver request through negotiation with OMB. See Morrall Decl., Exh. 2 (10112106 OMB letter) (stating that CBD's FOIA request was "overly broad" and inviting CBD to narrow its request). CBD refused to narrow its FOIA request or otherwise negotiate with OMB about its fee waiver request. See id., Exh. 3 (1 117106 CBD "Freedom of Information Act Appeal"). CBD's refusal to narrow its FOIA request andlor negotiate with OMB has continued to the present time. Moreover, CBD's request is inconsistent with the parties Joint Case Management Conference Statement (Docket No. 15, filed 12131107) which states on page 4 at item "4. Motions": "After the fee waiver issue has been resolved the parties anticipate filing crossmotions for summary judgment on the issue of whether OMB is required to produce any documents to CBD pursuant to the FOIA request at issue." That process, namely cross-motions for summary judgment following the preparation of a Vaughn index, is precisely the process that has been followed in the two cases in this District involving the same NHTSA CAFE final and proposed rule as are at issue in this case. In People ofthe State ofCalifornia v. EPA et a / . ,Case No. 07-2055 JSW, OMB has produced a Vaughn index regarding documents withheld by OMB on various grounds, all of which would appear to fall within the scope of CBD's FOIA request at issue in this case. In addition, OMB prevailed in a FOIA case brought by the State of California regarding the proposed rule at issue in this case. People ofthe State ofCalifornia v. OMB el al., 06-2654 SC. Judgement was entered in that case on June 13,2007 following cross-motions for summary judgment. Judge Conti has already ruled on the propriety of OMB's withholding of certain documents that fall within the scope of CBD's FOIA request. CBD's request for a production of documents by March 25, 2008 is an impossibly short deadline given the scope of CBD's underlying FOIA request. At or prior to the hearing on the cross-motions OMB will propose a schedule for the remainder of this case in light of the Court's
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reviously stated intention to hold a status conference following argument on the cross-motions. 'he case would be over, of course, if the Court were to deny CBD's motion and CBD then eclined to pay for the records it seeks.

V.

CONCLUSION
For all of the foregoing reasons, OMB requests that the Court deny CBD's motion for

ummary adjudication and hold that CBD is required to pay or agree to pay OMB's search and opy costs before OMB is required to begin to process CBD's FOIA request. In short, this Court hould grant OMB's motion for summary adjudication. )ated: February 8, 2008 Respectfully submitted, JOSEPH P. RUSSONELLO United States Attorney

By:

Is1 Michael T. Pyle Assistant U.S. Attorney

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