Free Declaration in Support - District Court of California - California

Case 3:07-cv-04997-MHP
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January 29,2007 FOIA Officer Office of Munaganent and Budget 725 17th Street NW, Room 9026 Washi~~oll, 20503 DC Fax: 202.395.3504

JAN 2 9 MOf

FREEDOhl OF LVFORMATION ACT APPEAL Dear Freedom of h f m & t i o nAc! Oficm:
On bchalr'of the Center for Bioloejcal Diversity ["tile Center"), and pursuant to h e Freedom of information Act, 5 U.S.C.fi 552 ct seq. ("FOIA"), I am wr~ting apped tho U%rte Hoar. Office to of Management and Budget's ("OMB") Jmusry 26,2007 dcnial of the Center's FOTA fee waver request dated AUy s i 29,2006. The Center's Auysr 29 letre; requested ttrc following informahon:
All documeuts relating to the devcloprnent of the Find1 Rulc setting average fuel economy standards for light trucks for model ycars 2008-2011 (71Fed.

Ragu17566-17679, "rulemnking") that are not nlrcady posted on t h e internet in Docket Xor. 2005-22223 aad 2006-24309. This rcquert includes communications among staff and wrth otllcrr that were crcnred during the development of the Final Rule and the Propbscd Rule (70 Fed. Reg. 5141451466). This request includes but is not Iimitcd to c-mail cxchangcs or other eorrcspondcncc among agency $taliand bchveen Qgcnrystaff and others, draft documents, inzernal rcvicws and critiques, inter-ngcncj reviews, agency meeting notes, et&
Scc -Exlubit A. In response to the August 29,2006 FOlA request, OXfB dcnred the Cenrm's fce waivvr requcst Exhibit B.

FOlA section 552(n)(4)(A)(iii) nddrcsses fee waivers and specifically requires agri~citr waivc to

fecs for requesters able to demonstr;ltethat"disclosure of the infonnotion is in tllc puhlic i n t m t hecsuse it is likely to contribute significantly LOpublic undersranding of rhe operations or activities of thc government and is not primarily in ll~e couunercini intcrcst of the requester."
Tu.sun .?t,occ.r.lx -Snn F r a o c ~ ~ c o . Diego Lor Angcler 1o:hun Trss *Ptnor h l : o r San

.

I'arcland

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\Va;hingIen. DC

Justin Aupstme, Staff Attumey

1095 W e t Sweet. Suire 51 1 * San Friu!cisco, C.4 91103 Tcl.:(415)436-9682ext. SO2 Fax: (415) 436-9683
Emeil: jauysrine@biologicald~vcrsily.org wuw.biologicald~vers~ty.org

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OMR does 1101 claim the Center has a cormnercinl interes: in tho documents and 111erefore. the only question is whethcr the documents "likely conlribute sigificantly lo public undersfanding of U~coperations activities of the gove;nmcn~." ar
What tould be more important to public understanding of O.MD operalionsthan knowing that the decisions of L!e agency are free h the taint of impropriety" &Judicial Watch. r n 326 F.3d 1309, 1313 (D.C. Cir. 2003) ("UOisl could bemore imporfnnt ro thc public's undentanding of [RSoperations than knowing whether its co~nmissioncr awarded a govcmment wr~truct a company he co-founded and in which 11eheld stock?"). Indecd, how can rhcpuhlic to effcdively ovemce its govement if it is not fully informed about decisions t i n t impact, in this w e , the vny air we breathe? Thc docunlents in question will among other things, help reveal whether OMB's anions regarding fuel economy standards xvcre inappropriately influenced. Just as importanlly, it will rwcal what information die a~cncyhad its possession when fo~mulating in the ~ I a n a k i n y ail1 reveal any information that the agency failed to disclose on its website and or in other already public documents.

w,

As (he D.C. Circuit h stated. "the public is always well served when it lolows how govcrnmcnr a activities, pnnicularly matouching on legal and ethical qucso'ons, have been conducted." & !. 2t 13 13-14. Here,because the requested docunlents will likely expose now information about tllc CAFE standards, the decumentc will likely shcd light on whether OMB is rnwting its legal duties pursuant to the Energy Policy and Consw~tion ("EYCA") and Adminiscative Act Pmccdure Act ("APA"). In other words, the comrncn!s will divulge "'what the government i up s to" bwause they will help reveal whethn OM8 is canductinl: its ope1,ationsin accordancewi:h its legal and ethical obligations. -Qe 510 U.S.487,495-496 (1994) CqFOIA's] b~icpolicyoffullugcncy disclosur~ ... focuses on the citizer~s' right to beinfomad about what tlicir governnlent is up lo. Official informdon that shcds light on an agency's pnformmce of it5 statutory duties falls squarcly within that statutory purposc.")

a,

OMB should be wdi aware that it can not deny z fee wdver based on FOlA cxcmptions-that fallacy lm consistently breorejccted by the corn. A "fee wsivcr request should be evaluated based on rhc f a d of the request and the reasons given by h c requestor in supper! of the waiver," the Coun concluded, "not on the possibility that therecards may ulrimstely bedctetmind to he mcrnpt from disclosure. [The] fee waiver request should have bee11evaluated on the poeetial contribution of the rcquested information ro the public's understanding of DOT oprrations, not DOT'S determination that m s ofthe infomation war exempt from discio.sure." Judicial Wsrch ot v. U.S. DOT.ZOO5 U.S. Dist. L W S 14025 at *12 (internal cita~ions omitted). ln short, any OMB claims Bout which mponsive records sliould be rclessed and wl~ich be withheld are nmay irrclcvant to the fee waivcr detnmiwtion. Such a method of denyingfm waivers directly wnlrsdins tlw FOIA Amendments' purposc of facilitating the disclosure of documenn to watchdog oganizarions like the Cearer.

OMB can not put the c a t before the horse- fhe Center should n n t be requ~rod pay for the to scuch just so the Centcx c8n challenge tile exemptions %cingapplied. Such an outcome would chill the FOIA proccss and Jlow agencjcs lo cffccr~vely preclude F O k efforts by non-profits

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FOIA's exemptions *,ere never intcndcd to preclude fcc waivers as the couris well undnsmd. As pointed our in Judicial Watch, Inc. v. United States DOE: Under the POIA, the agency bears the burden orjustifying ~~ondisclosurc. 5

U.S.C. 552(a)(4)@). It would be contrary to [lieexpress provisions ofthe FOlA tj
to 'ulvcrr the burden ofproof' and force a plaincjff not only to demonshale rhar it satisfies tbc publicinterest exception nrlalpis and is entitled to a fec waiver, but also to dcmonstrnte that [ha defendant agmcy's contmplatcd withholdings sit not propnly claimed. proiect on M i l i t a P r o c u r w t v. Dcaamnenf of iht Navy, 710 F. Supp. at 367. 'A fee waiver request should be evaluated b a d on the face of thc request md thereasons givcn by the requester in nippon of the waiver,' not on the possibility t a the rewrds may ultimately bc ddacnnined to be exempt h from disclosure. Camevv. Unitcd Srates D c ~ m c noflustice. 19 F.3d 807, 815 t (2d Cir. 1994). While in somc rare c a t s it may bc reasonable for au agency to deny a fee waiver because the POIA request is for 'patently exempt documents,' id., - the C:ourt is uneonvinccd in this wsc thar NRDC's FOlA requests so~ight 'patently cxmpt' docummts.

3 10 F. Supp. 2d 271,295 (D.D.C. 2004).
Moreover, O m ' s msenion was agnin orplicilly rejected in S.UIOIWilderness .UIiancel?, Uaited States BLM:

In n c u e where thcDepartment of the Interior offered a simiim mtionalc for its fee waivcr denial. the mutt fourid thnfthe agency improperly dcnicd the plaintiffs r e q u n t d ftc waivcr on the grounds thar a portior~ the rccords sought would be of withheld, and 'rclaing the non-cxcmpt portions would not make a. significant connibutioo to the understanding of the general public.' Judicial Wztch. Inc, v, Den? of E n w , 3 10 F. Supp. Zd 27 I , 295 (DD.C. 2004) (cimlion ominetl), rw'd in part on orher sounds, 366 U.S. App. D.C. 343,412 F.3d 125,2005 WL 14i2444 (D.C. Cir. 2005). T e wun norcd that only in 'rarc cases' would it be h nppropriate for an agency to deny a fee waiver on the grounds that the docruncnts sought might be excmpt from disclosure in their entircty.
402 F. Supp. 2d 82,89 (D.D.C. 2005) T h r i i s cenainly not a "rwc caw.'' To suggest that everylhing the Ccntn has requesrcd i s subject

concluso~y l u n of privilege as c to exemption is srnply absurd. hlmovcr, using an unspec~iicd, the basis for a fee waivcr deninl would undermine FOlA significantly. FOIA carries a prcsumplion of disclosure and the fcc-waiver zncndmcnts of 1986 wcrc dunlgncd specifiwlly to allow non-profit, public interest goupn such as the Center access to govcmmenl documents without the pnymeot of f c a . As stated by ode Scnstor, "iA]gen~t~ should not he allow& to use fees as an offensive weapon agarnst requcstcrs seeking access to Government information . . .'' 132 Cong. Rec. S. 14298 (statme[tt of Scn. Lrahy). b interpreting this amendment, the Ninth Ctrcuif has stated that thc amcnded statute "is to be liberally construed in favor ofwaivers for noncommercial requesters." &Clellm Ecolo~ica] ,F35 F.2d

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1282, 1284 (9" Cir. 198f) (citing Sen.Leahy). The Ninth Circutr has likewise explicitly pointed out that rhe amendnont's main purpose was "lo rernove rhr roodb/ockr and technicalities whicl~ havvc beca used by various Fednal a g e n c i ~ deny wnivai or reducttons of fees under thc to FOlh." (miplusis addcd)

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OMB's reliance on exemptions mounts to just such a roadblock and i s controry to FOIA arid FOL4's Intent. Both Congess and Ulc courts are clcar !n their intqretation Uiat the innin Ic~slattvcpwpose thc FOTA iunmdments rs to facilitate access lo agn~cpremrds of by "wntchdog" orgmizationb, such as environmenrsl groups. which use FOJA to momtor and challenge govcmment activ1tie-s. As aDistricr of Columbia Circuit Caun has stated, this waivcr provision was sddcd to FOlA "in an arlempr foprewrrt govcnirncnr agcnciesfrom xrsirig/!igh fics fo discoura,be ccrrrarn types ofrcquaters and rcquesu," in cleat rcfcrcncc ro rquests fiom joumnlists, scholars, and, most importantly for our purposes, non-profit public interest group;. Better Gov't Als'n v. D w c n r of State, 780 F.2d 96,93-94 (D.C. Cir. 1986), quotlne v. FBI, 596 F. Supp. 867,876 @, Mass. 1981) (emphasis added).
Thcsc documents may shcd light on the C . U E nandards such that action stlould be taken pursuant to the EPCA, APA, or other applicable law. Pnlups the documents will provideinright into fuel stnndards or will shed light onimproprieties in the rulemaking. Thus, the documents currently hnve significant relevance to, and will likely contribute to, greata public undnstanding of OMB's involvement with fuel economy standards. Even if the rcqucsred domerits fall to reveal any problnns that need to be addressed, tl~ar too will promolc public undexsnndjng of fact OMB's operations. &Judicial Watclb 326 F.3d at 1313 ("governmeni counsel conlplained tllnt Judicial Watch provided no evidence that Rossoni actually had a mnflict of intcrcst. That may bc mie, but llie question here i s not whether Rossotti had such a confiict, but w~thmdisclom is likely to contribute to public understanding of IRS operations-s goal IImt disclosure will pronlote regardless of what the documents reveal.").

Below 1address cach component of the Fe wsivcrreplations. e

i)

the subjcct of the requcrt: ivhcther the subiecr of the reauested records concerns the operations or activities of the Government

As already described in the Center's requwt, and appppareutly undisputed by OMB, thcsubjccl niatta of thc request concenis the opmariom and adivitics of thc Bovcmment, namely, the rulemaking setting average fuel economy standards for light trucks for model y e w 2008-1011. As this nilcmaking is on identifiable task of OMB and NASTA, there i s no question that this iilcmaking is a U.S. government operotion. Thus, the FOJA request plninly concerns the operations or acrivities of the govemncnt.
(ii)

whether the dindorure wiU contribl~tco a n understendine of federal t ppvernment opcratiow or activities

T m is no question bat the documents requested will conmbute to an wderstu~ding federal h of govcmment operations. The documents are ncuf and are not in the public domain. They will undoubtedly providc meaningful understanding of 0Wf)'s compliance with federal sulutcs ~ncludirlg Energy Policy and Conscwation Act ("EPCA") and thc National Environmental the

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Policy Act (WEPA"), because they will r e v 4 faas pertaining lo thc rulc~nnking oontoined nor within the online docket ofpublic cornmcnls and official, final docurncnts fhis is certain t shtd light on the OMB's decision-making process and compliance w11h applicable law. In short, tl~c requested documents will help rcveal the basis for ihc final ~lentaking. In MtClellm Ecoloeicai Se c Sintation v. Cartucfi, 835 F.2d at 1286, the court made clear that '[FOIA] legislalive history suggests that information [ h u more potentiill to contribute to public understanding: to the dcgee that the iafonnation is new and supports public ovnsight of agmcy opcntions ...." In this instance, all thc rcques~ed docurneuts potentially provide new infgtmation about fuel economy standards and the associated rulemaking at issuc; rnoreovm, the informution u%11 providc ovcrright of OMB's activities, including what administrotivo rctions m y be ncceiary in order to best promote fucl economy per applicable inw. See Western Warcrshcds Proiect v. Brown. 3 18 F.Supp.2d 1536, 1040 (D. ldnho 2004) ("'UW assmted in its initial requtst thatthc information rcqucslcd was either not readily available or never provided to the public, fms never contradicted by the BLM, Illerefore, thc Courf finds that WWP adquarely demonstrated that the informstion utould contribute significantly to public h e a l Services v. HOD. 405 F.Supp.2d 553 (D. Pa. 2005) understanding."): &Gommunity ["Tl~os. in Porest G u a r a , thc CLS rcquest would likely shed light on informarion that is as new to the interested public.")

Moreover, acpointed out above, OMB's asstitions regarding cxcmpf documenls and fee walvcrs have bccn fouutl contrary to FOIA and inappropriate-a "fee waiver request should be evaluated based on the fact of the requet and thc reasons given by tire rquestor in support of the waiver, not on the possibility that the records may ultiinately be dctennined to be exempt from disclosure. [The] fee waiverrcquert should have b m evaluated on tItc potential conuibution of the requested infonnation to the public's undnsrar,ding of DOT operations, nor DOT'S determination that most of the informat~on exempt t o m disclosure." Judicial Watch v. U.S. was QD.S. Dist. I 14025 at *12. Thus, O M should no l o n g ~ attempt to hide 2005Q , LEXIS r behind the false assertion that f a waivns can be dcrucd based on possible FOIA exemptio~u.
As the Suprnne Court has a n p h i z e d , "[tlhe basic purpose of FOL4 is to cnsurc an informed citizenry, vital to the functioningof a democratic society, needed to check against cormption and to hold thc governors accountable to the governed." JohnDoe Acencvv. John Doe Corn., 493 U.S. 146, 152 (1989) ( q u o t i n g u m v, Robhins Tirc d: Rubber Co., 437 U.S. 214,242 (1078)). T~J$ FOIA w u enacted to 'permit access to official information long shieided unnecessarily
from public view" by creating a "judicially enforceable public right to secure such information fiom possibly unwilling oficial hands." h&onmcnlal Protection Beencv-J.Mink, 410 U.S. 75, 00 (1 973). "[Djirclosurr. rrorsecrecy, is rho dominant ol~eclive o/rAe Act.'' m a r l m e n [ of Air Forcev. Rose. 425 U.S. 352,361 (1976) (ernplusis added) Once responsive documents are idntifid. an agmcy must provide them to the requestor unless one of nine statutory cxtmptiona apply. 5 L.S.C. 552(b). Those cxempfiota ore nouro~vly 5 conrrrued, mad the burden L on ihc agency ro dcnlonsrrorc t11at the exen~prion applies. John Doe A p e , ~ c ~ , U.S. 152; .AWtnnb. CQ v. Dmmmcnt of the A i r Force. 998 493 at F.2d 1067, 1069 (D.C. Cir. 1993) (citlnp Wnlfe v Kfi, 839 F.2d 768,773(D.C. 1988)) (In Cir. e\~aluating withholdings based on rhc cxcmption 5 dclibcrarive process privilege, the D.C. Re: FOIA Appeal January 29,2007 Page 5

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Circuit I ~ l explluned that the p ~ i v i l e ~ e be construed as narrowly as is consistent with r "rnusr cfficien~ government operation.") Because OMB has failed to identify thc so-called cxumpr docummrs in any way, i t i s impossible lo discern whether any of the docummts satisfy the criteria for inter- or in~ra-agency communiwtians under the claimed exemption. In hct, os OMB admits, it has not even conducted a search and yet is clsiming that all or most of fhc responsive documents fall within exemptions to FOIA, Such reasoning is clearly co~~trai-yfo FOIA'S overarching goal of disclasure, not secrecy. OMB's response falls far short ofmeoting its burden to demonstrate h n k c an cxcmption spplies to thcse withholdi~igs redactions. At a minimum, ObB must provide ond specific derails to jrrstiw its withholding of the docummts per wernption 4 and 5. As the D.C. Circuit has mplaincd. "Iw]hcn an agency declincs to produce a requested document, the ogncy bears the burden heforc thc trial murt of provir~g applic~bility claimed statutory the of cxcmptions." .$men v. DOJ, 140 F.3d 1077, iO80 (D.C. Cir. 1998)(citations omincd). Thus, thc cows will not "nccept conclusoryand generalized dlegations of [FOIAJ c x e m p t i a ~but , rather would require agencies to offer a rclatively detailed analysis in manageable segmenu." 79 F.3d 1172,1178 (D.C. Cir. 1996) (quoting\'auahrl v. Rosen. 484 P.2d 820 0 ° C . Ck. 1975)). OMB has provided no such analysis hcre. Rcgardlcss, ns already explained, the exemptions are irrelevant to a fee waiver dnenninmion. (iii)
whether disclasltrc niU mutribute l o thc undersrandinc of the ~ u b l i s

When cxmining this requirement. courts consider "the resuestor's ability and intent t o cffccn'vely wilv& thcinformation to the public.'" l u d i c i d ~ ~ a t v.hDO*, 2005 U.S. Dist c LFXlS 14025 at "13.
The Center is n non-profit organization wl~ose mission is to promote the wnscrvatioil of imperiled species and their habitats through scicncc, policy, ducation and low. in furtherance of that mission, the Center's California-based Climate, Air, and Energy Progam works to reduu: U.S. greenhouse gas missions and to protect species imperiled by global warming. Because the t;ansport~tionsector accounts for approximately one-third 0fU.S. greenhouse gas emissions, tl~e Iiglrt lwck fie! economy rulemaking is ofcer~tral importance to addressing global wmning.

Iht:Ccnrer h3J the expaise, ability, ;Lnd conunitment to cffcctivcly convey thercqucstcd
infomarion to the public nt large The Ccnrcr has longstanding cxpertisc in climate, air, and energy issues and has advocated to prolcct species threntened by gIobal warning and reduce greenhouse gas p missions for many years. Thc Center has c x p d s e in climate science and biolog?: climate policy, and misting environmental laws that address grcenhousepps emissions, Center staff also l~ave considerable exncnise in communic;rtinn these isrues to our mcrnb~rs d the public both through our owu elec&onic and pnnt publicafions, m through media oubcach d In additiou to the Ccnter'~ newsletters and publications. information such as that presently rquwtcd is disseminated though tho ~ e n k r ' e-mail Biodiversity alert!., which are sent to s nearly 17,000 people approximatcly oncc a week, and the C e n t d s web page, which is accessed sevzral hundred-thousand times each month Forest Guagjjws v, DQI, 416 F.3d 1173,llSO (10th Cir, 2005) ("Among other things. Forest G\~ardians publishes an online ncw~lclcnm, which an is e-mailed to more than 2,500 peoplc and staled tha! it intends to cst~bllsh inleractive gazir~g

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web site with the infomiation obtained fro111 lliu BLivf. By demonstraring tbar the records arc meaningfully infonative to thc general public and how it will dissenrhiate such informatiol& Forat Guardians I t s shown that the rqucned infonn~rion likely to contribute to the public's is understanding of the BLM's operations and acrivitiez."). The Ccnlcis climate, air, and energy work is frquently featured in mcdiaoutlcts reaching rnill~ons people. For example, the Center's Petl~ions list polnr bean and 12 spccics of of to penguin3 unda the Endangered Spccles Act alone have been covered on ABC World ~Vews Ton?pht.Nightline. CBS Chamel8 San Diego, NPR " L i n g on Earth," lu'atronal Geographic. Sirius Salelhtc Radio, and other national and locd p r o g a s , 10-10 \VKS in New York zld other all-news radio stauons. Scores ofprinr stones ]lave appcarcd i publications n n g n g from n the New York T m s LA Times,San Fnncism Cluoniclc, and Washington Post lo Seed ie, Magazine, Molher Jones Magazine, and hhturc. Copics of n few of the print stories covering thc following projecrs and cescs arc attached' Polar Bcar Endangered Species Act Pelition and &ler for Bioloeical Diversifv v. Kcmnthome, Civ. 05-51 91 JSW 0. CA): CNN Wcbpage dated February 8,2006, attached as Exhibit C. Dist. Pcngulc Endangered Species A n Petition: 14,2006, amiched as Exhibit D. Cegter - for Siological D
San Frmcisco

Cluoniclc Webpage dated December

w t v v. B r t n n , Civ. 06-?061 SEA (S. Dist. CA): San Josc MKCUN News Web Page posted Novcmber 14.2006, arached is Exl~ibitE

The jnfomaiion disclosed in his FOIA would no doubt wnnibutc to the public understanding of the OMB's compliance or non-compliance wilh appliceble law in regard to the light truck fuel

economy rulemaking Undersunding how our g o v m e n t reachhes K i l y iniportant dccisions abou: fuel economy rtandvds that affect notjuzt the health and well-being oithe U.S., bu! also the entire globe's citizens and species, is of courscimportant to thepublic at large. hdecd, wh,hef is morc imponant than bcna unden~unding oithc government dccisions that impact our health and well-being? The information disclosed froni this POL4 will bc used to educme the public about thc imponancc of fuel economy standards aud the iacl that tne 2008-201 1 standuds are woefully inadequate to protect public health and welfare, biodiversily, and the environment. f h c r~que~ted information will be used to show how our government reaches its decisions so thnt the public at large e.ui cvaluarc the en~ission decision. The ruImi&hg cannot be Mly evaluated by tile public without the requested information. The Center has already used the above mentioned lnethods lo disseminate infonnatio~~ aboul climate change and fuel cffidcncy. See,C.S.

l~np:/hiolo~caldivmitytYorg/wcbd~pmgmms/policy/cncr~~index.hml;
hnp:f/~~.en~gdearth.ors/aierts!.The Center plans to release infomarion about fuel economy standnrds found in the requested documents ir. the s m c ways. For instance, if information discovered in the documents nvcnis needed action in regard to fuel standards, the Cenlcr \viU immediately =port that information in a Biodiversity dert, will hi&light it on irs webpoge, and will publish it in at l u s t one newsletler. Therefore. thc Center has explained "in detailed md non-wnclusory term+-again, d l thsi FOlA rcquires--~mctlyhow and to whnm i t

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m i l l disseminate tile informalion it receives." Judicial Watcjj. 326 F.3d at 1314; see alto JudiciaJ watch v. U.S. DOT.2005 U.S. Dist. LEXIS 14025: 13-14 (D.D.C. 2005) ("requiring Judicial Watch to outline a specific plan in additiou to describing its methods ofpublica~ion would

mount to 'pointless spccifidty."' (citing Judicial W&\, 326 F.3d at 1311)). The Calter routincly uses FOlA to obtain information from fderal agrncics thal the Center's logal and scienlifc experts mdyzc in order to inform ihe public about a vsricty of issues including cndangaed species, encrgypolicy. climatc change, air pollution, and water po1lu:ion. The Center need not "outline a specific plan in addition lo describing its rnetllods ofpublication." Judicial Watch v. DOT, 2005 G.S. Dis:. LEXlS 14025 at * L4. To do so would amount to "pointless specificity." M.(internal quotation omitted). Moreovet, the Center is ~unently litigation with the Dephrrment oPTranrpcrtation ovcr the in light truck fucl eeonouny mlmaking. As you mny be aware, Defendants in Ccntm for Bioloeical Diversirvv. National HiPhwav T a f c Administration. et al., No. 06-71 691, have refused to rfi n include the documents requested in the subject POIA rqucst i the Adminisaative Record for this Action. 13e Carter for Biologicd Divcnily and other Peti~ioners filed a motion to wmpcl cornphion of (hc Adminisfmtive Record, attached 2s ExJibir F. The grave importance ofthis casc, and the requcsted documents, is explained in the anachcd motion, hereby incorporated by rcfcrence. The Ninth Circuit Motions Panel issued h e Order dated Novanber 7.2006, artachcd as Exhibit G, refming the motion to the m r t panel for resolution and directin: Petitioners to eis submit documents obtained through FOIA dong with the briefing. Therefore, the requested (locumcms are critical not onlyro the public's understanding of the fucl cmnomy rulemaking in gencml, but l o the public's understanding of this ongoing case, which has also been covered in themedia (see S Francisco Chronicle Website, posted April 7,2006, attachd as Exhibit H). m This makes theOMB's con~pliaice with the lencr and intcnr of POIA and prompt disclosure of the requcsted documents d l the more urgent.
(iv) whether thc disclusure's contribution to ihe public's understandine of federal government opcrations will be siznificant

The Center end the public cannot prdict with precision what the requested docummu will reveal about the fuel ecanomy rulemaking. Thcrc can be no disp~itc, however, that disclosure of the quested d o c u m a ~ ~ provide new information rcguding thc standards that will may sigdficanrly tnhmcc the public's widcrstandingof OivfB's opcrations in geneml and the fuel cconorny 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 intcrest. &Judicial Watch, 326 F.3d ar 13 13.

I addition, the Centn has thoroughly described thu pcblic interest to be saved by the n documents. The Centerplans to use tbc new information both in the ongoing litigation as described abovc, and to educate the public about the mlmaking ft~d economy standards: dobaI w m i n g , and protection of tho environmenr. As already stated, it mn): wcll he that the OMD acted inappropriately, or should take some immeda:e adion in tespasc to infonnation obtained or leamd as p r t ofthc rulcm~kingprocess.The Center would cducate the public about such things. See Wes_tm U'atenheds P,t * 3!8 F.Scpp.2d at1 010 ("In the leHe: dcnying the
Re: FOIA .kppcal J~uary?9,2007

Case 3:07-cv-04997-MHP

Document 19-6

Filed 01/25/2008

Page 9 of 9

appeal, thc FOIA Officcr stated Lhal WWP hod failed to dmonstra&....how the information e would contribute to d ~ understanding of the general public of the oper;l!ions or activities of the governmcni. The Court, however... finds thnt WWP adqcluatcly specified the public interest to bc scrvod, that is, educating thepublic &out tbc ecological conditions of the land manngcd by thc BLM and.. ,how management saa~egicscmployed by the BLM may ndverszlyaffect the environment.") Thmfore, the Center has adequalely explained how disdoswe of the requested documents will signiftcantly contribute to public undcrrlnnding of OMB's fuel economy standards mlunaking and s fee waiver is required. The Centcr's request seeks non-publicly nvailahlc infonnotion that will enhance and contribute significantly ro public understanding of ibc govemmcnt operelions and acrivitics 31 isnrc. As already discussed, the documents arc new a d arc nor in the public domain, and t h y will undoubrcdly provide meaningful insight into O,MD7sopcrntions generally and its handling of the lid11truck fuel e ~ n o m y ~ l c m a k i ing n particular. For instance, disclosure of the records will contribute "significantly" 10 public u~derstanding government niee~ings of with. for example, ciu companies or other corporate entitics that havc j n t w t i at stake, T h e fuel cconomy standards mleni.~king issue has triggned subslantial and wideqrpread public interest. Over 45,000 public at comnlents werc rcceived vrior to d ~ close ofthe conunent oericd. 71 Fed. Rca. 17577, 11 e cannot br disputed that d k o s u r e o f ~ requested records kill therefore conlribute signijicndtly e to public undcrstandiw of govcrnmmt activitirr; by informinr the public of what informstion - was exchangedin govemmcnt meetings: and whdlier OMB &mGted to take any specific action in rciponse to requests 150outsideponies. Such mcctingi, however, me not the only issue thnt urill be brought to light. Any science or policy related doeummts thor the govcmrnent fnililcd to disclose publicly already will likewiac be diwlgcd by this requcst and will undoubtedly contribute significantIy to public understunding by exposing that inionnation for cvcryonc. For the abovementioned reasons, disclosure of all responsive rccorrls i s in the public inter& because it is likely to wnribute significantly to public understanding of eovernmn~t opmtions or activities. While requesters must provide informnrion as to why they should rcceivc a fee waiver, the Center has exhaustivdy done so. Therefort, Om's anelnpt to deny the Cenrer's fcc waiver requcst should be ovcrtwmcd.
N e rcqucst that all the witllhcld materids be il~nediatery rclcased and ihat all fees be waived. W Cauraityour prompt rcply within twer,ty days ns mandared by FOIA. Thnn)c you.

J u s k Auystinc

Re: FOLA Appeal January 29,2007

Page 9