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Deborah A. Sivas (CA Bar No. 135446) Leah J. Russin (CA Bar No. 225336) Noah Long (Certified Law Student) ENVIRONMENTAL LAW CLINIC Mills Legal Clinic at Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 Telephone: (650) 725-8571 Facsimile (650) 723-4426 Justin Augustine (CA Bar No. 235561) CENTER FOR BIOLOGICAL DIVERSITY 1095 Market Street, Suite 511 San Francisco, CA 94103 Phone: (415) 436-9682 Facsimile: (415) 436-9683 Email: [email protected]

Attorneys for Plaintiffs
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CENTER FOR BIOLOGICAL DIVERSITY, a nonprofit organization, Plaintiff, v. THE OFFICE OF MANAGEMENT AND BUDGET, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. C 07-4997 MHP DECLARATION OF JUSTIN AUGUSTINE IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGEMENT Date: Time: Courtroom: Feb. 25, 2008 2:00 p.m. 15, 18th Floor

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I, JUSTIN AUGUSTINE, hereby declare and state: 1. I offer this declaration in support of Plaintiff's Motion for Summary Judgment. The

matters set forth herein are stated upon my personal knowledge, and if called upon to testify, I could and would testify competently as to them. 2. 3. I am a staff attorney with the Center for Biological. The Center for Biological Diversity ("Center") is a non-profit corporation with over

40,000 members and offices in San Francisco, San Diego, Joshua Tree, and Shelter Cove, California;
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Tucson, Arizona; Portland, Oregon; Silver City, New Mexico; and Washington, D.C. The Center is dedicated to protecting imperiled species and their habitats by combining scientific research, public organizing, and administrative and legal advocacy. 4. On August 29, 2006, the Center submitted a Freedom of Information Act ("FOIA")

request to the Department of Transportation and ("DOT") and the Office of Management and Budget ("OMB") seeking documents associated with the Corporate Average Fuel Economy ("CAFE")

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rulemaking for "light trucks," published in the Federal Register on April 6, 2006, that were not included on the electronic docket for the rulemaking available to the public. The request also sought a fee waiver. A true and correct copy of the letter to OMB and DOT, dated August 29, 2006, is attached as Exhibit A. 5. On or about October 12, 2006, OMB responded to the Center's letter by asking the

Center to narrow the scope of its request. A true and correct copy of this response is attached as Exhibit B.

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6.

On October 20, 2006, the Center received a similar letter from DOT. A true and correct

copy of the response from DOT is attached as Exhibit C. 7. On November 7, 2006, I responded to both DOT and OMB on behalf of the Center. In

those responses, I reiterated the Center's request, explaining that it was crafted to request only those ____________________________________________________________________________________
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documents related to the rulemaking that are not already in the public domain. A true and correct copy of my letter to OMB and DOT is attached as Exhibit D. 8. On or about December 8, 2006, the Center received another letter from DOT. In that

letter, DOT stated that it did not consider the Center's November 7, 2006, letter to be an administrative appeal under FOIA and that, in any event, DOT was denying the Center's request for a fee waiver. DOT stated that it would not proceed with the FOIA request until the Center had paid DOT's estimate of the fees, which it calculated to be $4,080. A true and correct copy of this letter from DOT is attached

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as Exhibit E. 9. On December 15, 2006, on behalf of the Center, I filed a second administrative appeal

with DOT regarding the denial of the fee waiver. In that appeal, I fully explained why DOT's assertions were in error and why the Center is entitled to a fee waiver. A true and correct copy of this letter is attached as Exhibit F. 10. On January 22, 2007, the Center received a two-sentence letter from the DOT Office of

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Counsel, stating that the Center's fee waiver appeal had been granted and that DOT would process the Center's FOIA request without imposing fees. A true and correct copy of this letter from DOT is attached as Exhibit G. 11. OMB finally responded to my November 7, 2006 letter on or about January 26, 2007,

denying the Center's fee waiver request. OMB based its denial on the argument that it might ultimately refuse to release many documents because it "anticipated" that the documents requested would be "deliberative material, the disclosure of which would inhibit the frank and candid exchange of views

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necessary for effective government decision-making." OMB refused to process the document request unless the Center advanced a fee of $6,171. A true and correct copy of this letter from OMB is attached as Exhibit H.

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12.

On behalf of the Center, I immediately appealed the OMB fee waiver denial. In the

appeal letter, dated January 29, 2007, I explained that the waiver was required based on the plain language of the statute and that the interpretation taken by OMB had no legal basis. A true and correct copy of my letter to OMB is attached as Exhibit I. 13. On March 14, 2007, on behalf of the Center, I sent another letter to OMB and DOT

expressing the Center's concern with the long delay in responding to our request. A true and correct copy of my letter to my OMB and DOT (without attachments) as Exhibit J.

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14.

On or about June 12, 2007, OMB denied the Center's administrative appeal of the fee

waiver denial. In addition to discussing the reasons for denial, OMB's letter also stated that the Center could treat the response as a final decision on appeal or could submit "additional information" before a final decision was made. A true and correct copy of this letter from OMB is attached as Exhibit K. 15. In response, on July 19, 2007, I sent additional information on behalf of the Center

explaining the illegality of the OMB's decision and seeking reversal of the fee-waiver decision. A true
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and correct copy of this letter is attached as Exhibit L. 16. Since the July 19, 2007 appeal was sent, I have left multiple voicemail messages with

the OMB FOIA officers. OMB has not responded to my calls or to the July 19, 2007 letter. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief. Executed at San Francisco, California on January 23, 2008.

/s/ Justin Augustine Justin Augustine

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EXHIBIT LIST Exhibit A. Original FOIA request to OMB and DOT by Center, August 29, 2006. Exhibit B. Letter from OMB to Center denying request, dated October 12, 2006. Exhibit C. Letter from DOT to Center denying request, dated October 20, 2006. Exhibit D. Letter from Center to OMB appealing denial and reiterating request, dated November 7, 2006. Exhibit E. Letter from DOT to Center denying fee waiver, dated December 8, 2006 Exhibit F. Letter from Center to DOT appealing fee waiver denial, dated December 15, 2006.

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Exhibit G. Letter from DOT to Center, granting fee waiver, dated January 22, 2007. Exhibit H. Letter from OMB to Center denying fee waiver, dated January 26, 2007. Exhibit I. Letter from Center to OMB appealing fee waiver denial, dated January 29, 2007. Exhibit J. Letter from Center to OMB and DOT reiterating fee waiver request, dated March 14, 2007 Exhibit K. Letter from OMB to Center denying fee waiver appeal and requesting further information, dated June 12, 2007.

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Exhibit L. Letter from Center to OMB, with "further information" on appeal of fee waiver denial, dated July 19, 2007.

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Exhibit A

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CENTER FOR BIOLOGICAL DIVERSITY
BECAUSE LIFE IS GOOD.

August 29, 2006 VIA FACSIMILE AND CERTIFIED MAIL; RETURN RECEIPT REQUESTED National Highway Traffic Safety Administration Executive Secretariat Room 5221 400 Seventh Street, S.W. Washington, DC 20590 Kathy Ray U.S. Department of Transportation Office of the Secretary of Transportation C-12/Room 5432 400 Seventh Street, SW Washington, DC 20590 RE: Request for Materials under the Freedom of Information Act Dear FOIA Officers: I am writing to request the following documents pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, on behalf of the Center for Biological Diversity ("Center"). The Center is a non-profit, public interest, conservation organization whose mission is to conserve imperiled native species and their threatened habitat and to fulfill the continuing educational goals of its membership and the general public in the process. The primary goal of the Center's Climate, Air, and Energy Program is to reduce United States greenhouse gases and other harmful air pollutants in order to protect biological diversity, public health, and the environment. Consistent with this mission, and consistent with the Freedom of Information Act (FOIA), 5 U.S.C. § 552, this request describes the records sought and our request for a fee waiver. RECORDS REQUESTED We respectfully request that you produce the following records: All documents relating to the development of the Final Rule setting average fuel economy standards for light trucks for model years 2008-2011 (71 Fed. Reg. 17566-17679, "rulemaking") that are not already posted on the internet in Docket Nos. 2005-22223 and 2006-24309. 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 Tucson · Silver City · San Francisco · San Diego · Portland · Phoenix · Joshua Tree · Washington, D C
Kassie Siegel, Climate, Air, and Energy Program Director P.O. Box 549, Joshua Tree, CA 92252 Ph: 760-366-2232 Fax: 760-366-2669 Email: [email protected] web: www.biologicaldiversity.org

Donald Hawkins, FOIA Officer Office of Management and Budget Room 9026 725 17th Street, NW Washington, DC 20503

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limited to e-mail exchanges or other correspondence among agency staff and between agency staff and others, draft documents, internal reviews and critiques, inter-agency reviews, agency meeting notes, etc. This request includes records at the headquarters or other offices of the National Highway Traffic Safety Administration ("NHTSA"), Department of Transportation ("DOT"), and Office of Management and Budget ("OMB"), and in the individual files of all agency employees involved in the rulemaking. If a portion of a record is responsive to this request, but another portion is not responsive, we request that you disclose the entire record, without redacting any non-responsive portions. Should you believe that a portion of any document is exempt from disclosure, please provide the document with the only exempt portion only redacted. Should you elect to withhold any documents or portions thereof responsive to this request for each document, please provide the identity of the author (including their title and position) and all recipients (including their title and position), the date, the subject of the record, and the particular privilege claimed. For any records or portion thereof withheld under 5 U.S.C. §552(b)(5) please explain: 1) Why is each document predecisional? A. To what decision are each of the documents leading? B. Has this decision been finalized? 2) Why is each document deliberative? A. To what extent does each make a recommendation on a legal or policy matter? 3) What policy recommendation qualifies this document for exemption?

REQUEST FOR FEE WAIVER We request that you waive all fees in connection with this matter. As shown below, we meet the two-pronged test under FOIA for a fee waiver, 5 U.S.C. § 552(a)(4)(A)(iii), as implemented by your agencies' regulations at 49 C.F.R. § 7.44(f) (DOT) and 5 C.F.R. § 1303.70 (OMB), because the requested information will significantly contribute to public understanding of the issues involved. Each of the factors that the agencies must consider in deciding whether to grant a fee waiver is addressed below. In considering whether we meet the fee waiver criteria, it is imperative that the agencies remember that FOIA, in general, carries a presumption of disclosure and that the fee waiver amendments of 1986 were designed specifically to allow non-profit, public interest groups such as the Center access to government documents without the payment of fees. As stated by one Senator, "[A]gencies should not be allowed to use fees as an offensive weapon against requesters seeking access to Government information . . ." 132 Cong. Rec. S. 14298 (statement of Sen. Leahy). In interpreting FOIA Request August 29, 2006 Page 2 of 5

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this amendment, the 9th Circuit has stated that the amended statute "is to be liberally construed in favor of waivers for noncommercial requesters." (citing Sen. Leahy). The amendment's main purpose was "to remove the roadblocks and technicalities which have been used by various Federal agencies to deny waivers or reductions of fees under the FOIA. (citing Sen. Leahy). McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987). As the influential District of Columbia Circuit Court has stated this waiver provision was added to FOIA "in an attempt to prevent government agencies from using high fees to discourage certain types of requesters and requests," in clear reference to requests from journalists, scholars, and nonprofit public interest groups. Better Gov't Ass'n v. Department of State, 780 F.2d 86, 93-94 (D.C. Cir. 1986), quoting Ettlinger v. FBI, 596 F. Supp. 867, 876 (D. Mass. 1984) (emphasis added).

I. Obtaining the Information is of No Commercial Interest to the Center. The Center has no commercial interest that would be furthered by the requested disclosure. The Center is a public interest, non-profit organization with over 25,000 members that informs, educates, and counsels our members and the public regarding environmental issues, policies, and laws. We have been substantially involved in the management activities of numerous government agencies for years, and have consistently displayed our ability to disseminate information granted to us through FOIA fee waivers. II. The Subject of the Request Concerns "the Operations and Activities of the Government."

The subject matter of this request is the NHTSA's rulemaking setting average fuel economy standards for light trucks for model years 2008-2011 pursuant to the Energy Policy and Conservation Act, 49 U.S. 32901 et seq. ("EPCA"). NHTSA's rulemaking pursuant to EPCA is obviously an identifiable activity of the government. The requested documents are clearly related to and highly informative about the rulemaking. III. The Disclosure is "Likely to Contribute" to an Understanding of Government Operations or Activities. In determining the informative value of the requested documents, the agencies should consider the content of the record, the identity of the requester, and the interrelationship between the two. The documents requested concerning the light truck fuel economy rulemaking, which are not currently publicly available, are certain to shed light upon the agencies' compliance with EPCA and the Administrative Procedures Act. Such public oversight of agency action is vital to our democratic system and clearly envisioned by the drafters of the FOIA. The public is always well served when it knows how government activities, particularly matters touching on legal and ethical questions, have been conducted. See Judicial Watch v. Rossotti, 326 F.3d 1309, 1314 (D.C. Cir. 2003) ("[T]he American people have as much interest in knowing that key [agency] decisions are free from the taint of conflict of interest as they have in discovering that they are not."). The requesters intend to fulfill their well established function of public oversight of agency action. We are not requesting these documents merely for their intrinsic informational value. FOIA Request August 29, 2006 Page 3 of 5

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U.S. Government agencies including the Air Force, Animal Damage Control, Army, Army Corps of Engineers, Bureau of Land Management, Bureau of Reclamation, Department of Agriculture, Department of Commerce, Department of Defense, Department of the Interior, Department of Justice, Department of Transportation, Federal Bureau of Investigation, Federal Aviation Administration, Fish and Wildlife Service, Forest Service, General Accounting Office, National Aeronautical and Space Administration, National Science Foundation, Office of Management and Budget, Rural Economic Community Development Agency, and the Smithsonian Institution, among others, consistently grant our requests for the waiving of FOIA fees. Substantive FOIA responses consistently conforming with the spirit of the FOIA and consistently conforming with the FOIA fee waiver have been provided to our organizations from these Federal agencies many times. In consistently granting the fee waivers, all of these agencies have recognized that (1) our requested information contributes significantly to the public understanding of the operations or activities of the government, (2) our requested information enhances the public's understanding to a greater degree than currently exists, (3) we possess the expertise to explain the requested information to the public, (4) we possess the ability to disseminate the requested information to the general public, (5) and that the news media recognizes that we are an established expert in the field of environmental protection and energy use. IV. The Disclosure of the Requested Information Will Contribute to the Understanding of the Public at Large and the Contribution to Public Understanding Will be Significant In determining whether the disclosure of requested information will contribute significantly to public understanding, one guiding test is whether the requester will disseminate the disclosed records to a reasonably broad audience of persons interested in the subject. Carney v U.S. Dept. of Justice, 19 F.3d 807 (2nd Cir. 1994)(emphasis added). It is clear that release of the requested documents will contribute to better understanding of the public at large, and that the contribution to public understanding will be significant. The rulemaking setting fuel economy standards for light trucks is the subject of significant interest to the public, as well as to the media, and to the California legislature. This interest is demonstrated, in part, by the large number of comments received on the Proposed Rule, and by the large number of media stories covering the rulemaking. Because the transportation sector accounts for approximately one third of the nation's greenhouse gas emissions, this rulemaking greatly impacts the overall level of greenhouse gas emissions in this country. Global warming is of intense interest to the public as demonstrated by the level of public concern and increase in media coverage in recent months. The requested documents are not currently in the public domain. Their release is not only "likely to contribute," but is in fact certain to contribute to better public understanding of the process which led to the Final Rule and fuel economy standards for model years 2008-2011. Our organization's track record of active participation in oversight of governmental agency activities and our consistent contribution to the public's understanding of agency activities as compared to the level of public understanding prior to disclosure are well established. The Center's membership alone is over 25,000 strong. The Center is also an established expert at communication of environmental, regulatory, and legal matters to the public. FOIA Request August 29, 2006 Page 4 of 5

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Public oversight and enhanced understanding of the NHTSA's highly controversial EPCA rulemaking is absolutely necessary and an integral part of our democratic system. The requested comments 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.). Concurrent with any action which the requesters may take after obtaining the requested documents, we will publicize the reasons for the action and the underlying actions of the agencies that have prompted the action. This is certain to result in a significant increase in public understanding of government agency activity, and in particular of the EPCA rulemaking. 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 this request in a similar manner. While we cannot know what precisely the documents will reveal, it is certain that they will shed light on the agencies' rulemaking process. FOIA does not require more. See Western Watersheds Project, 318 F.Supp.2d at1040 ("In the letter denying the appeal, the FOIA Officer stated that WWP had failed to demonstrate....how the information would contribute to the understanding of the general public of the operations or activities of the government. The Court, however...finds that WWP adequately specified the public interest to be served, that is, educating the public about the ecological conditions of the land managed by the BLM and...how management strategies employed by the BLM may adversely affect the environment."); Judicial Watch v. U.S. DOT, 2005 U.S. Dist. LEXIS 14025 (D.D.C. 2005) ("requiring Judicial Watch to outline a specific plan in addition to describing its methods of publication would amount to `pointless specificity'"). CONCLUSION We hope that this letter has demonstrated to your satisfaction that the Center qualifies for a full fee waiver, and that you will immediately begin to search and copy the requested material. Should you decide not to waive fees, we plan to immediately appeal such a decision. We request that all records currently existing in electronic format be provided on a compact disk, and all other documents on paper. Please send all materials to me at the address on this letterhead: Kassie Siegel, Center for Biological Diversity, P.O. Box 549, Joshua Tree, CA 92252. Please contact me at (760) 366-2232 x302 when the documents have been compiled, and if you have any questions about this request. We look forward to your reply within twenty working days as required by FOIA. 5 U.S.C. 552(a)(6)(A)(i). Sincerely,

Kassie Siegel

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Exhibit B

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Exhibit C

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Exhibit D

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CENTER FOR BIOLOGICAL DIVERSITY

November 7, 2006 SENT VIA FACSIMILE AND OVERNIGHT UPS Donald Hawkins FOIA Officer, Office of Management and Budget 725 17th Street NW, Room 9026 Washington, DC 20503 Fax: (202) 395-3504 Kathy Ray Departmental FOIA Officer C-12/Room 5432 400 Seventh St., SW Washington, D.C. 20590 Fax: (202) 366-8536 Re: FOIA File 2006-253 FREEDOM OF INFORMATION ACT APPEAL Dear FOIA Appeal Officers: On behalf of the Center for Biological Diversity ("the Center"), and pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"), I am writing to respond to the Office of Management and Budget's denial of the Center's August 29, 2006, FOIA request. The August 29 FOIA asked for the following information: All documents relating to the development of the Final Rule setting average fuel economy standards for light trucks for model years 2008-2011 (71 Fed. Reg. 17566-17679, "rulemaking") that are not already posted on the internet in Docket Nos. 2005-22223 and 2006-24309. 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. 5141451466). This request includes but is not limited to e-mail exchanges or other correspondence among agency staff and between agency staff and others, draft documents, internal reviews and critiques, inter-agency reviews, agency meeting notes, etc. See Exhibit A.
Tucson · Phoenix · San Francisco · San Diego · Los Angeles · Joshua Tree · Pinos Altos · Portland · Washington, DC

Justin Augustine, Staff Attorney · 1095 Market St., Suite 511 · San Francisco, CA 94103 Phone: 415-436-9682 x302 · Fax: 415-436-9683 · [email protected]

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On October 12, 2006, the Office of Management and Budget ("OMB") replied to the request stating that the request "is overly broad." See Exhibit B. On October 20, 2006, the U.S. Department of Transportation ("USDOT") responded in similar fashion stating that the request is "extremely broad," and "would target a voluminous amount of information and would require an extensive and potentially burdensome search and review of large numbers of files and documents." See Exhibit C. The Center feels that its request is already detailed enough and believes that it is not too broad or too burdensome for the following reasons. The Supreme Court has clearly stated that FOIA seeks "to establish a general philosophy of full agency disclosures unless information is exempted under clearly delineated statutory language." NLRB v. Sears, Roebuck, & Co., 421 U.S. 132, 136 (1975) (quoting S. Rep. No. 813, 89th Cong., 1st Ses., 3 (1965)). The agency must show "by specific and detailed proof that disclosure would defeat, rather than further, the purposes of FOIA." Mead Data Central Inc. v. Dept. of the Air Force, 566 F.2d 242, 258 (D.C. Cir. 1978); see also Lowry v. SSA, 2001 U.S. Dist. LEXIS 23474 (D. Or. 2001) ("Though burdensome, Lowry's request must be viewed in the light of the strong presumption in favor of disclosure."). In regard to the detail that FOIA requests must contain, FOIA explicitly states that a request must "reasonably describe" the records desired. 5 USCS § 552(a)(3)(A). As pointed out in Yeager v. Drug Enforcement Admin., "the linchpin inquiry is whether the agency is able to determine `precisely what records (are) being requested.'" 220 U.S. App. D.C. 1, 33 (D.C. Cir. 1982) (citing S.Rep. No. 854, 93d Cong., 2d Sess. 10 (1974); Source Book at 162; H.Rep. No. 876, 93d Cong., 2d Sess. 5-6 (1974), U.S.Code Cong. & Admin.News, p. 6267; Source Book at 125-26); see also Peyton v. Reno, 1999 U.S. Dist. LEXIS 12125, 3-4 (D.D.C. 1999) ("A request reasonably describes records if the agency is able to determine precisely what records are being requested."). The Center's August 29, 2006, request does just what FOIA asks--it "reasonably" describes the documents desired and even points the agency to the specific final agency decision at issue, the Final Rule setting average fuel economy standards for light trucks for model years 2008-2011. There is no question that OMG and USDOT can "determine precisely what records are being requested." If the record addresses average fuel economy standards for light trucks for model years 2008-2011, then it falls within the request. In fact, this is just the type of request that agencies should be prepared for. While an agency could obviously not prepare well for or anticipate a request asking, for instance, for all documents with the word Scientology in it, it is quite reasonable to assume that records addressing a final agency rule would be organized such that they could be readily accessed. There is likewise no reason that the requested documents should be prohibitively voluminous. The Center's request is in no way a "broad, sweeping, indiscriminate request for production lacking any specificity." Irons v. Schuyler, 465 F.2d 608, 612 (DC Cir. 1972). To the contrary, the request deals with one specific agency decision and is not at all comparable to situations FOIA Appeal (OMB and USDOT (FOIA File 2006-293)) Page 2 of 3

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where requests were deemed "unduly" burdensome by the courts. See American Federation of Government Employees, Local 2782 v. U.S. Dep't of Commerce, 907 F.2d 203, 208 (D.C. Cir. 1990) (unreasonable to require a search of "every chronological office file and correspondent file, internal and external, for every branch office, staff office [etc.]."); Church of Scientology v. Internal Revenue Serv., 792 F.2d 146, 151 (DC Cir. 1986) (unreasonable to require a "search through every file in [the IRS'] possession to see if a reference to Scientology appeared"); Irons, 465 F.2d at 611-12 (unreasonable to require a search of 3,500,000 files of patents as well as 1,000,000 other files). Moreover, neither the OMB nor USDOT has provided any reasoning for its conclusory assertions. To simply claim that the Center's request is somehow too broad or too burdensome violates FOIA's goals of open government. See Armstrong v. Bush, 139 F.R.D. 547, 553 (D.D.C. 1991)("The D.C. Circuit has held that where the agency's ability to retrieve requested documents is at issue, an `undiscriminating adoption' of the agency's assertion is inappropriate and could `raise the specter of easy circumvention' of the FOIA." (citing Founding Church of Scientology, Inc. v Nat'l Security Agency, 1610 F.2d 824, 837 (D.C. Cir. 1979)) Because it is clear what records the Center has requested, and because records associated with one final agency decision should not be "unduly" burdensome to provide, the Center asks that OMB and USDOT immediately begin to conduct a search for and assemble the requested documents. The Center considers this letter to be an appeal of both OMB and USDOT's responses and as such, requests a response within 20 working days as mandated by FOIA. 5 U.S.C. § 552(a)(6)(A)(ii). If you have any further questions, please call me at (415) 436-9682 ext. 302. We await your prompt reply. Sincerely,

Justin Augustine

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Exhibit E

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Exhibit F

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CENTER FOR BIOLOGICAL DIVERSITY
VIA FACSIMILE AND OVERNIGHT MAIL December 15, 2006 Rosalind A. Knapp Deputy General Counsel (C-2) U.S. Department of Transportation 400 7th St., SW Washington, DC 20590 Kathy Ray Departmental FOIA Officer C-12/Room 5432 400 Seventh St., SW Washington, D.C. 20590 Fax: (202) 366-8536 FREEDOM OF INFORMATION ACT APPEAL (FOIA # 2007-32) Dear Freedom of Information Act Officers: On behalf of the Center for Biological Diversity ("the Center"), and pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"), I am writing to appeal the U.S. Department of Transportation's ("DOT") December 8, 2006 denial of the Center's FOIA fee waiver request dated August 29, 2006. The Center's August 29 letter requested the following information: All documents relating to the development of the Final Rule setting average fuel economy standards for light trucks for model years 2008-2011 (71 Fed. Reg. 17566-17679, "rulemaking") that are not already posted on the internet in Docket Nos. 2005-22223 and 2006-24309. 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. 5141451466). This request includes but is not limited to e-mail exchanges or other correspondence among agency staff and between agency staff and others, draft documents, internal reviews and critiques, inter-agency reviews, agency meeting notes, etc.

Tucson · Phoenix · San Francisco · San Diego · Los Angeles · Joshua Tree · Pinos Altos · Portland · Washington, DC

Justin Augustine, Staff Attorney 1095 Market Street, Suite 511 · San Francisco, CA 94103 Tel.: (415) 436-9682 ext. 302 · Fax: (415) 436-9683 Email: [email protected] · www.biologicaldiversity.org

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See Exhibit A. In response to the August 29, 2006 FOIA request, DOT denied the Center's fee waiver request. See Exhibit B. FOIA section 552(a)(4)(A)(iii) addresses fee waivers and specifically requires agencies to waive fees for requesters able to demonstrate that "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." DOT does not claim the Center has a commercial interest in the documents and therefore, the only question is whether the documents "likely contribute significantly to public understanding of the operations or activities of the government." What could be more important to public understanding of DOT operations than knowing that the decisions of the agency are free from the taint of impropriety? See Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1313 (D.C. Cir. 2003) ("What could be more important to the public's understanding of IRS operations than knowing whether its commissioner awarded a government contract to a company he co-founded and in which he held stock?"). Indeed, how can the public effectively oversee its government if it is not fully informed about decisions that impact, in this case, the very air we breathe? The documents in question will, among other things, help reveal whether DOT's decision regarding fuel economy standards was inappropriately influenced. Just as importantly, it will reveal what information the agency had in its possession when formulating the rulemaking and will reveal any information that the agency failed to disclose on its website or in other already public documents. As the D.C. Circuit has stated, "the public is always well served when it knows how government activities, particularly matters touching on legal and ethical questions, have been conducted." Id. at 1313-14. Here, because the requested documents will likely expose new information about the CAFE standards, the documents will likely shed light on whether DOT is meeting its legal duties pursuant to the Energy Policy and Conservation Act ("EPCA") and Administrative Procedure Act ("APA"). In other words, the comments will divulge "what the government is up to" because they will help reveal whether DOT is conducting its fuel economy standard-setting in accordance with its legal and ethical obligations. United States Dep't of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 495-496 (1994) ("[FOIA's] basic policy of full agency disclosure ... focuses on the citizens' right to be informed about what their government is up to. Official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose.") The idea that DOT can deny a fee waiver based on possible FOIA exemptions has consistently been rejected by the courts. DOT can not put the cart before the horse ­ the Center should not be required to pay for the search just so the Center can challenge the exemptions being applied. Such an outcome would chill the FOIA process and allow agencies to effectively preclude FOIA efforts by non-profits. FOIA's exemptions were never intended to preclude fee waivers as the courts well understand. As pointed out in Judicial Watch, Inc. v. United States DOE: Under the FOIA, the agency bears the burden of justifying nondisclosure. See 5 U.S.C. § 552(a)(4)(B). It would be contrary to the express provisions of the FOIA to `invert the burden of proof' and force a plaintiff not only to demonstrate that it Re: FOIA Appeal (File Number 2007-32) December 15, 2006 Page 2

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satisfies the public interest exception analysis and is entitled to a fee waiver, but also to demonstrate that the defendant agency's contemplated withholdings are not properly claimed. Project on Military Procurement v. Department of the Navy, 710 F. Supp. at 367. `A fee waiver request should be evaluated based on the face of the request and the reasons given by the requester in support of the waiver,' not on the possibility that the records may ultimately be determined to be exempt from disclosure. Carney v. United States Department of Justice, 19 F.3d 807, 815 (2d Cir. 1994). While in some rare cases it may be reasonable for an agency to deny a fee waiver because the FOIA request is for `patently exempt documents,' id., the Court is unconvinced in this case that NRDC's FOIA requests sought `patently exempt' documents. 310 F. Supp. 2d 271, 295 (D.D.C. 2004). Moreover, the DOT's rationale was again explicitly rejected in S. Utah Wilderness Alliance v. United States BLM: In a case where the Department of the Interior offered a similar rationale for its fee waiver denial, the court found that the agency improperly denied the plaintiff's requested fee waiver on the grounds that a portion of the records sought would be withheld, and `releasing the non-exempt portions would not make a significant contribution to the understanding of the general public.' Judicial Watch, Inc. v. Dep't of Energy, 310 F. Supp. 2d 271, 295 (D.D.C. 2004) (citation omitted), rev'd in part on other grounds, 366 U.S. App. D.C. 343, 412 F.3d 125, 2005 WL 1412444 (D.C. Cir. 2005). The court noted that only in `rare cases' would it be appropriate for an agency to deny a fee waiver on the grounds that the documents sought might be exempt from disclosure in their entirety. 402 F. Supp. 2d 82, 89 (D.D.C. 2005). This is certainly not a "rare case." To suggest that everything the Center has requested is subject to exemption is simply absurd. Moreover, using an unspecified, conclusory claim of privilege as the basis for a fee waiver denial would undermine FOIA significantly. FOIA carries a presumption of disclosure and the fee-waiver amendments of 1986 were designed specifically to allow non-profit, public interest groups such as the Center access to government documents without the payment of fees. As stated by one Senator, "[A]gencies should not be allowed to use fees as an offensive weapon against requesters seeking access to Government information . . ." 132 Cong. Rec. S. 14298 (statement of Sen. Leahy). In interpreting this amendment, the Ninth Circuit has stated that the amended statute "is to be liberally construed in favor of waivers for noncommercial requesters." McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987) (citing Sen. Leahy). The Ninth Circuit has likewise explicitly pointed out that the amendment's main purpose was "to remove the roadblocks and technicalities which have been used by various Federal agencies to deny waivers or reductions of fees under the FOIA." Id. (emphasis added)

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DOT's reliance on exemptions amounts to just such a roadblock and is contrary to FOIA and FOIA's intent. Both Congress and the courts are clear in their interpretation that the main legislative purpose of the FOIA amendments is to facilitate access to agency records by "watchdog" organizations, such as environmental groups, which use FOIA to monitor and challenge government activities. As a District of Columbia Circuit Court has stated, this waiver provision was added to FOIA "in an attempt to prevent government agencies from using high fees to discourage certain types of requesters and requests," in clear reference to requests from journalists, scholars, and, most importantly for our purposes, non-profit public interest groups. Better Gov't Ass'n v. Department of State, 780 F.2d 86, 93-94 (D.C. Cir. 1986), quoting Ettlinger v. FBI, 596 F. Supp. 867, 876 (D. Mass. 1984) (emphasis added). These documents may shed light on the CAFE standards such that action should be taken pursuant to the EPCA, APA, or other applicable law. Perhaps the documents will provide insight into fuel standards or will shed light on improprieties in the rulemaking. Thus, the documents currently have significant relevance to, and will likely contribute to, greater public understanding of DOT's fuel economy standards. Even if the requested documents fail to reveal any problems that need to be addressed, that fact too will promote public understanding of DOT's operations. See Judicial Watch, 326 F.3d at 1313 ("government counsel complained that Judicial Watch provided no evidence that Rossotti actually had a conflict of interest. That may be true, but the question here is not whether Rossotti had such a conflict, but whether disclosure is likely to contribute to public understanding of IRS operations--a goal that disclosure will promote regardless of what the documents reveal."). Below I address each component of the fee waiver regulations. i) the subject of the request: whether the subject of the requested records concerns the operations or activities of the Government

As already described in the Center's request, and apparently undisputed by DOT, the subject matter of the request concerns the operations and activities of the government, namely, the rulemaking setting average fuel economy standards for light trucks for model years 2008-2011. As this rulemaking is an identifiable task of DOT and NHSTA, there is no question that this rulemaking is a U.S. government operation. Thus, the FOIA request plainly concerns the operations or activities of the government. (ii) whether the disclosure will contribute to an understanding of federal government operations or activities

There is no question that the documents requested will contribute to an understanding of federal government operations. The documents are new and are not in the public domain. They will undoubtedly provide meaningful understanding of DOT's compliance with federal statutes including the Energy Policy and Conservation Act ("EPCA") and the National Environmental Policy Act ("NEPA"), because they will reveal facts pertaining to the rulemaking not contained within the online docket of public comments and official, final documents. This is certain to shed light on the DOT's decision-making process and compliance with applicable law. In short, the requested documents will help reveal the basis for the final rulemaking. Re: FOIA Appeal (File Number 2007-32) December 15, 2006 Page 4

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In McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d at 1286, the court made clear that "[FOIA] legislative history suggests that information [has more potential to contribute to public understanding] to the degree that the information is new and supports public oversight of agency operations...." In this instance, all the requested documents potentially provide new information about fuel economy standards and the associated rulemaking at issue; moreover, the information will provide oversight of DOT's activities, including what administrative actions may be necessary in order to best promote fuel economy per applicable law. See Western Watersheds Project v. Brown, 318 F.Supp.2d 1036, 1040 (D. Idaho 2004) ("WWP asserted in its initial request that the information requested was either not readily available or never provided to the public, facts never contradicted by the BLM. Therefore, the Court finds that WWP adequately demonstrated that the information would contribute significantly to public understanding."); see also Community Legal Services v. HUD, 405 F.Supp.2d 553 (D. Pa. 2005) ("Thus, as in Forest Guardians, the CLS request would likely shed light on information that is new to the interested public.") Contrary to DOT claims, a "fee waiver request should be evaluated based on the fact of the request and the reasons given by the requestor in support of the waiver, not on the possibility that the records may ultimately be determined to be exempt from disclosure. [The] fee waiver request should have been evaluated on the potential contribution of the requested information to the public's understanding of DOT operations, not DOT's determination that most of the information was exempt from disclosure." Judicial Watch v. U.S. DOT, 2005 U.S. Dist. LEXIS 14025 at *12 (internal citations omitted). DOT's reliance on Van Fripp v. Parks is clearly misplaced and any DOT claims about which responsive records should be released and which may be withheld are irrelevant to the fee waiver determination. As already described, such a method of denying fee waivers directly contradicts the FOIA Amendments' purpose of facilitating the disclosure of documents to watchdog organizations like the Center. As the Supreme Court has emphasized, "[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)). Thus, FOIA was enacted to "permit access to official information long shielded unnecessarily from public view" by creating a "judicially enforceable public right to secure such information from possibly unwilling official hands." Environmental Protection Agency v. Mink, 410 U.S. 73, 80 (1973). "[D]isclosure, not secrecy, is the dominant objective of the Act." Department of Air Force v. Rose, 425 U.S. 352, 361 (1976) (emphasis added) Once responsive documents are identified, an agency must provide them to the requestor unless one of nine statutory exemptions apply. 5 U.S.C. § 552(b). These exemptions are narrowly construed, and the burden is on the agency to demonstrate that the exemption applies. See, e.g. John Doe Agency, 493 U.S. at 152; Army Times Pub. Co. v. Department of the Air Force, 998 F.2d 1067, 1069 (D.C. Cir. 1993) (citing Wolfe v. HHS, 839 F.2d 768, 773 (D.C. Cir. 1988)) (In evaluating withholdings based on the exemption 5 deliberative process privilege, the D.C. Circuit has explained that the privilege "must be construed as narrowly as is consistent with efficient government operation.")

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Because DOT has failed to identify the so-called exempt documents in any way, it is impossible to discern whether any of the documents satisfy the criteria for inter- or intra-agency communications under the claimed exemption. In fact, as DOT admits, it has not even conducted a search and yet is claiming that all or most of the responsive documents fall within exemptions to FOIA. Such reasoning is clearly contrary to FOIA's overarching goal of disclosure, not secrecy. DOT's response falls far short of meeting its burden to demonstrate that an exemption applies to these withholdings and redactions. At a minimum, DOT must provide specific details to justify its withholding of the documents per exemption 4 and 5. As the D.C. Circuit has explained, "[w]hen an agency declines to produce a requested document, the agency bears the burden before the trial court of proving the applicability of claimed statutory exemptions." Summers v. DOJ, 140 F.3d 1077, 1080 (D.C. Cir. 1998) (citations omitted). Thus, the courts will not "accept conclusory and generalized allegations of [FOIA] exemptions, but rather would require agencies to offer a relatively detailed analysis in manageable segments." See Oglesby v. Department of the Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996) (quoting Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)). DOT has provided no such analysis here. Regardless, as already explained, the exemptions are irrelevant to a fee waiver determination. (iii) whether disclosure will contribute to the understanding of the public at large

When examining this requirement, courts consider "the requestor's ability and intent to effectively convey the information to the public." Judicial Watch v. DOT, 2005 U.S. Dist. LEXIS 14025 at *13. The Center is a non-profit organization whose mission is to promote the conservation of imperiled species and their habitats through science, policy, education and law. In furtherance of that mission, the Center's California-based Climate, Air, and Energy Program works to reduce U.S. greenhouse gas emissions and to protect species imperiled by global warming. Because the transportation sector accounts for approximately one-third of U.S. greenhouse gas emissions, the light truck fuel economy rulemaking is of central importance to addressing global warming. The Center has the expertise, ability, and commitment to effectively convey the requested information to the public at large. The Center has longstanding expertise in climate, air, and energy issues and has advocated to protect species threatened by global warming and reduce greenhouse gas emissions for many years. The Center has expertise in climate science and biology, climate policy, and existing environmental laws that address greenhouse gas emissions. Center staff also have considerable expertise in communicating these issues to our members and the public both through our own electronic and print publications, and through media outreach. In addition to the Center's newsletters and publications, information such as that presently requested is disseminated through the Center's e-mail Biodiversity alerts, which are sent to nearly 17,000 people approximately once a week, and the Center's web page, which is accessed several hundred-thousand times each month. See Forest Guardians v. DOI, 416 F.3d 1173, 1180 (10th Cir. 2005) ("Among other things, Forest Guardians publishes an online newsletter, which is e-mailed to more than 2,500 people and stated that it intends to establish an interactive grazing web site with the information obtained from the BLM. By demonstrating that the records are meaningfully informative to the general public and how it will disseminate such information, Re: FOIA Appeal (File Number 2007-32) December 15, 2006 Page 6

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Forest Guardians has shown that the requested information is likely to contribute to the public's understanding of the BLM's operations and activities."). The Center's climate, air, and energy work is frequently featured in media outlets reaching millions of people. For example, the Center's Petitions to list polar bears and 12 species of penguins under the Endangered Species Act alone have been covered on ABC World News Tonight, Nightline, CBS Channel 8 San Diego, NPR "Living on Earth," National Geographic, Sirius Satellite Radio, and other national and local programs, 10-10 WINS in New York and other all-news radio stations. Scores of print stories have appeared in publications ranging from the New York Times, LA Times, San Francisco Chronicle, and Washington Post to Seed Magazine, Mother Jones Magazine, and Nature. Copies of a few of the print stories covering the following projects and cases are attached: Polar Bear Endangered Species Act Petition and Center for Biological Diversity v. Kempthorne, Civ. 05-5191 JSW (N. Dist. CA): CNN Webpage dated February 8, 2006, attached as Exhibit C. Penguin Endangered Species Act Petition: San Francisco Chronicle Webpage dated December 14, 2006, attached as Exhibit D. Center for Biological Diversity v. Brennan, Civ. 06-7061 SBA (N. Dist. CA): San Jose Mercury News Web Page posted November 14, 2006, attached as Exhibit E. The information disclosed in this FOIA would no doubt contribute to the public understanding of the DOT's compliance or non-compliance with applicable law in its light truck fuel economy rulemaking. Understanding how our government reaches highly important decisions about fuel economy standards that affect not just the health and well-being of the U.S., but also the entire globe's citizens and species, is of course important to the public at large. Indeed, what is more important than better understanding of the government decisions that impact our health and wellbeing? The information disclosed from this FOIA will be used to educate the public about the importance of fuel economy standards and the fact that the 2008-2011 standards set by the DOT are woefully inadequate to protect public health and welfare, biodiversity, and the environment. The requested information will be used to show how our government reaches its decisions so that the public at large can evaluate the DOT's decision. The DOT's rulemaking cannot be fully evaluated by the public without the requested information. The Center has already used the above mentioned methods to disseminate information about climate change and fuel efficiency. See, e.g. http://biologicaldiversity.org/swcbd/programs/policy/energy/index.html; http://www.endangeredearth.org/alerts/. The Center plans to release information about fuel economy standards found in the requested documents in the same ways. For instance, if information discovered in the documents reveals needed action in regard to fuel standards, the Center will immediately report that information in a Biodiversity alert, will highlight it on its webpage, and will publish it in at least one newsletter. Therefore, the Center has explained "in detailed and non-conclusory terms--again, all that FOIA requires--exactly how and to whom it will disseminate the information it receives." Judicial Watch, 326 F.3d at 1314; see also Judicial Watch v. U.S. DOT, 2005 U.S. Dist. LEXIS 14025, *13-14 (D.D.C. 2005) ("requiring Judicial Re: FOIA Appeal (File Number 2007-32) December 15, 2006 Page 7

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Watch to outline a specific plan in addition to describing its methods of publication would amount to `pointless specificity.'" (citing Judicial Watch, 326 F.3d at 1314)). The Center routinely uses FOIA to obtain information from federal agencies that the Center's legal and scientific experts analyze in order to inform the public about a variety of issues including endangered species, energy policy, climate change, air pollution, and water pollution. The Center need not "outline a specific plan in addition to describing its methods of publication." Judicial Watch v. DOT, 2005 U.S. Dist. LEXIS 14025 at *14. To do so would amount to "pointless specificity." Id. (internal quotation omitted). Moreover, as the DOT has acknowledged, the Center is currently in litigation with the Department of Transportation over the light truck fuel economy rulemaking. As you may be aware, Defendants in Center for Biological Diversity v. National Highway Traffic Administration, et al., No. 06-71891, have refused to include the documents requested in the subject FOIA request in the Administrative Record for this Action. The Center for Biological Diversity and other Petitioners filed a motion to compel completion of the Administrative Record, attached as Exhibit F. The grave importance of this case, and the requested documents, is explained in the attached motion, hereby incorporated by reference. The Ninth Circuit Motions Panel issued the Order dated November 7, 2006, attached as Exhibit G, referring the motion to the merits panel for resolution and directing Petitioners to submit documents obtained through FOIA along with the briefing. Therefore, the requested documents are critical not only to the public's understanding of the fuel economy rulemaking in general, but to the public's understanding of this ongoing case, which has also been covered in the media (see San Francisco Chronicle Website, posted April 7, 2006, attached as Exhibit H). This makes the DOT's compliance with the letter and intent of FOIA and prompt disclosure of the requested documents all the more urgent.

(iv)

whether the disclosure's contribution to the public's understanding of federal government operations will be significant

The Center and the public cannot predict with precision what the requested documents will reveal about the DOT's fuel economy rulemaking. There can be no dispute, however, that disclosure of the requested documents may provide new information regarding the standards that will significantly enhance the public's understanding of DOT's operations in general and the fuel economy rulemaking in particular. Even if the documents fail to reveal that certain actions need to be taken does not mean the documents do not serve the public interest. See Judicial Watch, 326 F.3d at 1313. In addition, the Center has thoroughly described the public interest to be served by the documents. The Center plans to use the new information both in the ongoing litigation, as described above, and to educate the public about the DOT's rulemaking, fuel economy standards, global warming, and protection of the environment. As already stated, it may well be that the DOT acted inappropriately, or should take some immediate action in response to information obtained or learned as part of the rulemaking process. The Center would educate the public about such things. See Western Watersheds Project, 318 F.Supp.2d at1040 ("In the letter denying the appeal, the FOIA Officer stated that WWP had failed to demonstrate....how the Re: FOIA Appeal (File Number 2007-32) December 15, 2006 Page 8

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information would contribute to the understanding of the general public of the operations or activities of the government. The Court, however...finds that WWP adequately specified the public interest to be served, that is, educating the public about the ecological conditions of the land managed by the BLM and...how management strategies employed by the BLM may adversely affect the environment.") Therefore, the Center has adequately explained how disclosure of the requested documents will significantly contribute to public understanding of DOT's fuel economy standards rulemaking and a fee waiver is required. The Center's request seeks non-publicly available information that will enhance and contribute significantly to public understanding of the government operations and activities at issue. As already discussed, the documents are new and are not in the public domain, and they will undoubtedly provide meaningful insight into DOT's operations generally and its handling of the light truck fuel economy rulemaking in particular. For instance, disclosure of the records will contribute "significantly" to public understanding of government meetings with, for example, car companies or other corporate entities that have interests at stake. The fuel economy standards rulemaking at issue has triggered substantial and widespread public interest. Over 45,000 public comments were received prior to the close of the comment period. 71 Fed. Reg. 17577. It cannot be disputed that disclosure of the requested records will therefore contribute significantly to public understanding of government activities by informing the public of what information was exchanged in government meetings and whether DOT committed to take any specific action in response to requests from outside parties. Such meetings, however, are not the only issue that will be brought to light. Any science or policy related documents that the government failed to disclose publicly already will likewise be divulged by this request and will undoubtedly contribute significantly to public understanding by exposing that information for everyone. For the above-mentioned reasons, disclosure of all responsive records is in the public interest because it is likely to contribute significantly to public understanding of government operations or activities. While requesters must provide information as to why they should receive a fee waiver, the Center has exhaustively done so. Therefore, DOT's attempt to deny the Center's fee waiver request should be overturned. We request that all the withheld materials be immediately released and that all fees be waived. We await your prompt reply within twenty days as mandated by FOIA. Thank you. Sincerely,

Justin Augustine

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Exhibit G

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Exhibit H

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Exhibit I

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CENTER FOR BIOLOGICAL DIVERSITY
VIA FACSIMILE AND OVERNIGHT MAIL January 29, 2007 FOIA Officer Office of Management and Budget 725 17th Street NW, Room 9026 Washington, DC 20503 Fax: 202.395.3504 FREEDOM OF INFORMATION ACT APPEAL Dear Freedom of Information Act Officers: On behalf of the Center for Biological Diversity ("the Center"), and pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"), I am writing to appeal the White House Office of Management and Budget's ("OMB") January 26, 2007 denial of the Center's FOIA fee waiver request dated August 29, 2006. The Center's August 29 letter requested the following information: All documents relating to the development of the Final Rule setting average fuel economy standards for light trucks for model years 2008-2011 (71 Fed. Reg. 17566-17679, "rulemaking") that are not already posted on the internet in Docket Nos. 2005-22223 and 2006-24309. 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. 5141451466). This request includes but is not limited to e-mail exchanges or other correspondence among agency staff and between agency staff and others, draft documents, internal reviews and critiques, inter-agency reviews, agency meeting notes, etc. See Exhibit A. In response to the August 29, 2006 FOIA request, OMB denied the Center's fee waiver request See Exhibit B. FOIA section 552(a)(4)(A)(iii) addresses fee waivers and specifically requires agencies to waive fees for requesters able to demonstrate that "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."
Tucson · Phoenix · San Francisco · San Diego · Los Angeles · Joshua Tree · Pinos Altos · Portland · Washington, DC

Justin Augustine, Staff Attorn