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JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division MICHAEL T. PYLE (CSBN 172954 ) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7322 FAX: (415) 436-6748 e-mail: [email protected] Attorneys for Defendant Office of Management and Budget UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CENTER FOR BIOLOGICAL DIVERSITY, a non-profit organization. Plaintiff, v.

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THE OFFICE OF MANAGEMENT AND ) BUDGET, 1 Defendant.

DEFENDANT OFFICE OF MANAGEMENT AND BUDGET'S NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF FEE WAIVER ISSUE Date: February 25,2008 Time: 2:00 p.m. Judge: Honorable Marilyn Hall Pate1 Courtroom 15

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TABLE OF CONTENTS NOTICE OF MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RELIEFREQUESTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I MEMORANDUM OF POINTS AND AUTHORl'TLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. B. C. OMB 3

L. l

The NHTSA Rulemaking and OMB's Role in the Rulemaking . . . . . . . . 4 CBD's FOIA Request and the Administrative Record Leading to OMB's Denial of CBD's Fee Waiver Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. B.

CBD Bears The Burden of Establishing an Entitlement to a Fee Waiver . 7 CBD Is Not Entitled to a Fee Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1. FOIA Policy Arguments Do Not Entitle CBD to a Waiver . . . . . . 8
a.

NHTSA, the Rulemaking Agency, Has Already Disclosed A Substantial Amount of Information About the Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 OMB Would Be Unlikely to Release Information Not Already in the Public Domain . . . . . . . . . . . . . . . . . . . . . 10 CBD Cannot Obtain a Fee Waiver to Use FOIA To Test Compliance With Federal Statutes . . . . . . . . . . . . . . . . . . 12

b.
c.

CBD Is Not Entitled To A Fee Waiver Because Any Information That Might Be Released Would Not Be "Likely to Contribute Significantly" to the Public's Understanding of NHTSA's Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2. a. NHTSA, the Rulemaking Agency, Has Already Disclosed A Substantial Amount of Information About the Rulemaking . . . . . 9

I . CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 V

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TABLE OF AUTIXORITIES FEDERAL CASES
4FGE v. U.S. Department of Commerce, 632 F. Supp. 1272 (D.D.C. 1986), affd,907 F.2d 203 (D.C. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Earnev v. U.S. Department of Justice, 19 F.3d 807 (2d Cir. 1994) . . . Zarter v. U.S. Department of Commerce, 307 F.3d 1084 (9th Cir. 2002) . . Zelotex Corn. v. Catrett, 477 U.S. 317 (1 986) Zcnter for Bioloaical Diversity v. National Highwav Traffic Safetv Administration 508 F.3d 508 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 13 Eoastal States Gas Corn. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980) . . . . . . . . . . Edmonds Institute v. U.S. Department of Interior, 460F.Supp.2d63(D.D.C.2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 ludicial Watch. Inc. v. 1Inited States Department of Energy, 310 F. Supp. 2d 271 (D.D.C. 2004), reversed in part on other grounds, 412 F.3d 125 (D.C. Cir. 2005) . . . . . . . . . . . . . . . . 10 Larson v. C.I.A., 843 F.2d 1481 (D.C. Cir. 1988) Maricopa Audubon Societv v. U.S. Forest Serv., 108 F.3d 1089 (9th Cir. 1997) . . . . . . . .

k ,
835 F.2d 1282 (9th Cir. 1987) . . . . . . . . . . . Media Access Proiect v. FCC, 883 F.2d 1063 (D.C. Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 National Labor Rel. Board v. Sears. Robuck & Co., 421U.S.132(1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 National Treasurv Emnlovees Union v. Griffin, 811 F.2d644(D.C.Cir.1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . National Wildlife Federation v. U.S. Forest Serv., 861 F.2d 11 14 (9th Cir. 1988) . . . . . . . . . Vaughn v. Rosen, 523 F.2d 11136 (D.C. Cir. 1975)
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VoteHemu. Inc. v. DNP Enforcement Admin., 237 F. Supp. 2d 55 (D.D.C. 2002) . . . .

DOCKETED CASES
People of the State of California ex rel. Edmund G. Brown, Attomev General of thestate of California v. NHTSA et al., Case No. 06-2654 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

FEDERAL STATUTES
5 U.S.C.

5 552(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6,10

5 U.S.C. $552(a)(4)(A)(i) 5 U.S.C.

. . . .. .. .. .. .. . .. . .. . . . . . . .. . . .. .. . . .. . . .. .. .. . . . . . . . . . 8
1 7

5 552(a)(4)(A)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 U.S.C. 5 552(a)(4)(A)(vii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
FEDERAL REGULATIONS

5 C.F.R. § 1303.70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 , 8

FEDERALRULES
Fed.R.Civ.P. 56

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,7
..................
MlSCELLANEOUS

Fed.R.Civ.P. 56c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

H

Corporate Average Fuel Economy 68 Fed. Reg. 74,908 (Dec. 29,2003)

. ..... .. ... ... ..... .... ... .... ....... ... ..... . 4

Corporate Average Fuel Economy 70 Fed. Reg. 51414-51466 (Aug. 30,2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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NOTICE OF MOTION

PLEASE TAKE NOTICE that Defendant the Office of Management and Budget "OMB"), hereby moves pursuant to Federal Rule of Civil Procedure, Rule 56, for summary idjudication against PIaintiff the Center for Biological Diversity ("CBD" or "Plaintiff'). This notion is based upon the Notice of Motion and Memorandum of Points and Authorities :ontained herein, the declaration of John F. Morrall, IIl, the papers and pleadings on file in this rction, and any other matters that the Court may wish to consider. This motion will be heard at !:00 p.m. on February 25,2008, before the Honorable Marilyn Hall Patel, in Courtroom 15, at he United States Courthouse located at 450 Golden Gate Avenue, San Francisco, California ,4102.
RELIEF REQUESTED

OMB seeks an order from the Court that CBD is not entitled to a fee waiver for its :reedom of Information Act ("FOIA) request at issue in this case.
ISSUES PRFSENTED
1.

Whether OMB is entitled to summary adjudication of CBD's claim that it is

:ntitled to a fee waiver for its FOIA request at issue in this case.
MEMORANDUM OF POINTS AND AUTHONTIES INTRODUCTION AND SUMMARY OF ARGUMENT

This case was commenced by plaintiffunder the FOIA, 5 U.S.C.
I

5 552, when it submitted

FOIA request and fee waiver request to OMB, the Department of Transportation ("DOT"), and

he National Highway Traffic Safety Administration ("NHTSA") on August 29, 2006. At issue n this motion is CBD's fee waiver request as applied to OMB. At issue in the FOIA request, by :ontrast, are documents relating to a Notice of Proposed Rulemaking and Final Rule issued by (HTSA, an agency within the DOT, not OMB. CBD bears the burden of establishing its entitlement to a fee waiver. As applied here, ZBD must establish that "disclosure of the information is in the public interest because it is likely o contribute significantly to public understanding of the operations or activities of the 5ovemment and is not primarily in the commercial interest of the requester." 5 U.S.C.
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§552(a)(4)(A)(iii); see also 5 C.F.R. 5 1303.70 (OMB's FOIA regulation on waiver or reduction of fees). OMB submits that CBD cannot meet this statutory test for the reasons that OMB articulated when it made its final denial of CBD's fee waiver request by means of a letter dated June 12,2007. (A copy of that letter is attached as Exhibit 6 to the accompanying declaration of John F. Morrall, In.)' OMB denied the request because CBD failed to establish that its FOIA request would lead to the disclosure of information that was "likely to contribute significantly to public understanding of the operations or activities of the government." The reason CBD did not meet this standard begins with the point that it was NHTSA, and not OMB, who issued the proposed and final rules at issue in the FOIA request. As a result, the information that would "contribute significantly to public understanding" of the rulemaking would be the information that was considered by NHTSA in connection with its rulemaking. Vast amounts of material about the proposed and final rules are part of the public docket and available from NHTSA and DOT. By definition, anything that OMB did not share with NHTSA or DOT could not have had any impact on NHTSA's rulemaking. Ultimately, anything that might be obtained from OMB through the FOIA request would either be something already in the public domain or patently subject to exclusion from FOIA pursuant to the deliberative process privilege or other privileges. OMB should not be required to give CBD a fee waiver so that it can burden the agency with an exercise that would not "contribute significantly to public understanding" of anything regarding the proposed or final rules. OMB respectfully submits that the Court should grant its motion for summary adjudication as there are no material facts in dispute and that CBD cannot establish its right to a full fee waiver under the statutory and regulatory test for such a waiver. The fee waiver issue in this case should be summarily adjudicated in OMB's favor.

'While OMB stated four reasons for denying the fee waiver request in its letter dated June 12,2007, in this motion OMB relies only on the first three reasons and does not rely on the fourth reason identified on page 4 of its letter. See Morrall Decl., Exh. 6.
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[I.

STATEMENT OF FACTS
A.

OMB.

OMB submits that the most important part of the record for the Court to appreciate is that OMB plays a unique role among federal agencies: OMB is a deliberative agency which, among other things, provides advice to the President about proposed significant regulations. OMB did not issue the regulation at issue in this case and would not have had any authority to do so. Rather, OMB assists the President in the discharge of his budgetary, management, and

1 other executive responsibilities. See Declaration of John F. Morrall, 1 1 ("Morrall Decl."), 73.
Specifically, OMB assists the President in the preparation of the federal budget and in managing its execution by the agencies. Id. OMB also has a central role in providing lcadership in the development, oversight and coordination of the Federal government's policies in procurement, financial management and the information, statistical, and regulatory arenas as well as in the implementation of those policies. Id. OMB promotes better program management, strengthens administrative management, develops agency-performance measures and improves coordination of the Executive Branch's various operations. Id. OMB has only about 490 employees, all ofwhom are located in Washington, D.C. Id.,
r4. The Office of Information and Regulatory Affairs ( " O W ) was established as part of OMB

by Congress in the 1980 Paperwork Reduction Act. Id., 7 5 . In addition to OIRA's role reviewing collections of information and information policy issues under Lhe Papenvork Reduction Act, OIRA designates and reviews significant regulations under Presidential Executive Order 12866 (1993). Id. Under Executive Order 12866, OIRA consults with Federal agencies and reviews draft significant regulations and regulatory analyses concerning the regulations' potential effects on society, both their benefits and costs. Id. As the Executive Order directs, OIRA reviews significant regulations (approximately 600 per year), in draft form before publication to ensure agency compliance with the Executive Order. Id. O R 4 has been conducting this centralized regulatory review function since 1981 (id.), and has thus served Presidents from both major political parties.

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OIRA staff work with Federal agencies to review and evaluate planned agency -egulations on a wide variety of matters. Id., 76. OIRA staff review an agency's draft regulation md discuss the regulation with the agency staff as well as with other agencies that might be affected by the draft regulation before it is issued publicly in the Federal Register as either an Advanced Notice of Proposed Rulemaking ("ANPRM), Notice of Proposed Rulemaking YNPRM) or Final Rule. Id. OIRA played this role in connection with the rulemaking at issue in this case, as discussed below.

B.

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

On Dccember 12,2003, NHTSA published an Advanced Notice of Proposed Rulemaking

YANPRM) in the Federal Register, proposing Corporate Average Fuel Economy ("CAFE")
requirements for light trucks (such as pick-up trucks, minivans and sport utility vehicles) for model years 2008 through 201 1. See 68 Fed. Reg. 74,908 (Dec. 29,2003). Eighteen months later, on August 30,2005, NHTSA published a Notice of Proposcd Rulemaking ("NFU'M), jroposing CAFE standards for light trucks for model years 2008 through 201 1. See 70 Fed. Reg.

5 1,414 (Aug. 30,2005). NHTSA received more than 45,000 comments on the NPRM and a
Drafl Environmental Assessment from states, consumer and environmental organizations, automobile manufacturers and associations, memhers of Congress and private individuals. See 71 Fed. Reg. At 17,577. NHTSA's final rule was issued on April 6,2006. See 71 Fed. Reg. 17,566. The public regulatory docket related to NHTSA's rulemaking process is available at ~w.reginfo.pov. OMB's role with respect to NHTSA's rulemaking process was limited. Pursuant to O m ' s authority under Executive Order 12866, OIRA conducted a review prior to publication of NHTSA's draft Final Rule regarding NHTSA's standards for CAFE. See Morrall Decl., 78. Prior to issuance of the final rule on April 6,2006, OlRA consultcd with an interagency panel consisting of Executive Branch agencies that had an interest in CAFE (such as NHTSA, Department of Energy, EPA, etc.). See id., 77. OIRA used this group as a mechanism for interagency comment on the draft proposed rule. Id. Any comments OIRA received during this process were provided to NHTSA for its consideration. Id., 77. Thus, the documents ultimately
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at issue in this case concern the internal inter-governmental deliberations leading up to various decisions related to issuance of the Final Rule, including communications among OMB staff.
Id., 78; Morrall Decl., Exh. 6 at p. 3.

the The most recent development in NHTSA's final rule stems fro~n Ninth Circuit's decision in Centerfor Biological Diversity v. National Highway Traffic Safety Administration, 508 F.3d 508 (9thCir. 2007). The court there held that NHTSA's final rule was arbitrary and capricious and contrary to the Energy Policy and Conservation Act of 1975 ("EPCA") in certain respects; the Court remanded the matter to NHTSA to promulgate new standards and also to Statement. Iniportant for purposes of this motion is the fact prepare a Full Environmental In~pact that OMB was not a party to any of the Petitions resulting in the Ninth Circuit opinion and the fact that the opinion confirms that it is NHTSA -- not OMB -who is and was responsible for the final rule.
C.

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

The FOIA request at issue in this case CBD's August 29,2006 FOIA request to OMB, DOT and the National Highway Traffic Safety Administration. Morrall Decl., Exh. 1. CBD
requested "All documents relating to the development of the Final Rule setting average fuel

economy standards for light trucks for model years 2008-201 1 (71 Fed. Rcg. 17566-17679, "rulemaking") that are not already posted on the internet in Docket Nos. 2005-22223 and 200624309. This request includes communications among staff and others that were created during the development of the Final Rule and the Proposed Rule (70 Fed. Reg. 51414-51466). This request includes but is not limited to e-mail exchanges or other correspondence among agency staff and others, draft documents, internal reviews and critiques, inter-agency reviews, agency meeting notes, etc." Morrall Decl., Exh. 1 at pgs. 1-2. In the same letter CBD requested a fee waiver, asking OMB and the other recipients to "waive all fees in connection with this matter."
Id. at pgs 2-5.

On October 12,2006, OMB replied to CBD's FOIA request in a letter stating that the FOIA request was "overly broad" and inviting CBD to narrow its request. Morrall Decl., Exh. 2.
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On November 7,2006, CBD submitted a letter that it styled as a "Freedom of Information Act Appeal" to OMB. The letter did not narrow or otherwise refine the scope of CBD's FOIA request. Morrall Decl., Exh. 3. On January 26,2007, OMB responded to CBD's "Freedom of Information Act Appeal" 3fNovember 7,2006. OMB stated that it did not consider CBD's letter to be an appeal because 3MB had yet to make a determination as to whether to grant or deny the FOIA request. OMB's letter then processed CBD's request for a fee waiver. OMB determined that "the vast majority of the documents that are the subject of your FOIA request would very likely be withheld from mandatory disclosure under FOIA exemption 5 (5 U.S.C. §552(.1)(5)" and that CBD had thus Failed to satisfy the standard in 5 C.F.R. Ej 1303.70 because the FOIA request would not lead to a release that would "contribute significantly to public understanding of the operations or activities ~f Government." OMB further advised CBD that it had determined that CBD was a non~ommercial requester and advised CBD that the FOIA request would not be processed by OMB until the fee issue had been resolved. Morrall Decl, Exh. 4. On January 29,2007, CBD submitted another "Freedom of Information Act Appeal" to DMB. In this letter CBD argued that it should be granted a full fee waiver by OMB. Morrall Decl., Exh. 5. On June 12,2007, OMB denied CBD's appeal of the denial of its request for a fee waiver. OMB advised CBD in this letter that "we have again reviewed your request for a fee waiver." OMB explained the four reasons for its decision to deny CBD's appeal: ( I ) NHTSA, not OMB, issued the proposed and final rules at issue and NHTSA has already made public a substantial amount of information about the rulemaking; (2) OMB would be unlikely to release a significant amount of information not already in the public domain; (3) OMB would be unlikely to release information "likely to contribute significantly" to the public's understanding of whether or not OMB had complied with certain statutes; and (4) CBD had not established that disclosure of documents to it would contribute to the understanding of the public at large. Morrall Decl., Exh. 6.

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On July 19, 2007, CBD made a final submission to OMB, in a letter it styled as "Additional Information In Support of Fee Waiver Request." Morrall Decl., Exh. 7. OMB did not revisit its denial of CBD's request for a fee waiver as a result of anything in this letter. This litigation then ensued by which CBD seeks to obtain an order that it is entitled to a full fee waiver.
11 1.

ARGUMENT

Summary adjudication is an important method of promoting judicial economy by preempting the trial of cascs in which no genuine issue of material fact remains. Where no such issue of fact remains, the moving party "is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(c) and (e); Celotex Corp. v. Catrett, 477 U.S. 3 17,322-23 (1986). OMB seeks summary
adjudication of the fee waiver issue in this case, as Rule 56(b) permits OMB to seek summary judgment in its favor "on all or m t h e claim." (emphasis added). The present dispute over CBD's request for a fee waiver is properly resolved through summary adjudication. See

McClellarr Ecological Seepage Situation v. Carlucci, 835 F.2d 1282 (9" Cir. 1987) ("McClellan") (affirming district court's grant of summary judgment to federal defendant where
defendant denied full fee waiver to FOIA plaintiff). CBD's request for a fee waiver is reviewed de novo by this court but "the court's review of the matter shall be limited to the record before the agency." McClellan, 835 F.2d at 1284 (citing 5 U.S.C. §552(a)(4)(A)(vii)). As discussed more fully below, OMB is entitled to summary adjudication as to the fee waiver issue in Plaintiffs complaint because there are no material facts in dispute and OMB is entitled to judgment as a matter of law on the issue.
A.

CBD Bears The Burden of Establishing an Entitlement to a Fee Waiver

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

5 1303.70, is essentially identical to the two-pan statutory test, stating that fees "shall be waivcd
Jr reduced where it is determined that disclosure is in the public interest because it is likely to
:ontribute significantly to public understanding of the operations or activities of the Government md is not primarily in the commercial interest of the requester." The key statutory and regulatory language at issue in this motion is the requirement that iisclosure be "in the public interest because it is likely to contribute significantly to public lnderstanding of the operations or activities of the Government." See Section LII.B.2, below. The burden is on CBD to establish that it satisfies this statutoly and regulatoly test. See

McClellan, 835 F.2d at 1285 (quoting National Treasury Employees Union v. Griffin, 81 1 F.2d
544,647 (D.C. Cir. 1987)). See also Larson v. C.I.A.,843 F.2d 1481,1483 (D.C. Cir. 1988). In :he present case, CBD cannot demonstrate that it is entitled to a fee waiver for its FOIA request.
B.

CBD Is Not Entitled to a Fee Waiver
1.

FOIA Policy Arguments Do Not Entitle CBD to a Waiver.

Much of the argument in CBD's letters to OMB regarding its request for a fee waiver rccitc over and over again the fact that FOIA is to be "liberally construed in favor of waivers for noncommercial requesters." McClellan, 835 F.2d at 1284 (quoting from legislative history); rhat policy does not cntitlc CBD to a fee waiver in this case. In McClellan, for example, the Ninth Circuit held that "[elven in light of legislative intent that courts construe the amended statute liberally, requesters do not deserve a complete waiver of fees." McCleIlan, 835 F.2d at 1287. Likewise, the history of CBD's success or lack of success in obtaining fee waivers in other cases is of no significance in the present dispute because FOIA requests arc to be resolved on a case-by-case basis. See, e.g., Media Access Project v. FCC, 883 F.2d 1063, 1065 (D.C. Cir. 1989) (noting that requester may seek waiver of fees on "case-by-case" basis); Edmonds Inst. v.

U.S. Dep't of Interior, 460 F . Supp. 2d 63,75 (D.D.C. 2006) ("applications for fee waivers are
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considered on a case-by-case basis").

2. CBD Is Not Entitled TOA Fee Waiver Because Any Information That Might Be Released Would Not Be "Likely to Contribute Significantly" to the Public's Understanding of NHTSA's Rulemaking.

Resolution of this motion and the cross-motion CBD will filc turns on the first three issues presented in OMB's final denial of CBD's request for a fee waiver. See Morrall Decl., Exh. 6
a.

NHTSA, the Rulemaking Agency, Has Already Disclosed A Substantial Amount of Information About the Rulemaking.

As explained above, it was NHTSA, not OMB, that issued the proposed and final rules for the rulemaking at issue in CBD's FOIA request. The DOT and NHTSA have already made available to the public the regulatory dockets for the ~ k m a k i n gNo. 2005-22223 for the ;

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proposed rule and 2006-243090 for the final rule. See Morrall Decl., Exh. 6 at p. 2. The proposed rule (comprising 53 Federal Register pages) and final rule (comprising 49 Federal Register pages) obviously provide the best explanation of NHTSA7sdecision-rnling in this rulemaking. In addition, the regulatorydocket includes copies of the "over 45,000 individual submissions to the rulemaking docket" that NHTSA received "prior to the close of the comment period, including ones from vehicle manufacturers and associations, environmental and consumer advocacy groups, members of Congress and private individuals." See 71 Fed. Reg. 17577.
In the preamblc to the Final Rule, NHTSA responded to the 45,000 comments and

explained the changes it made in response to those comments and explained the changes that
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NHTSA had made. Those changes are reflected in NHTSA's final rule. Moreover, NHTSA's regulatory docket includes materials related to OMB's review of the ~ k m a k i n under Executive g Order 12866: the text of the drafts of the proposed and final rules as submitted to OMB for review; the Regulatory Lmpact Analysis that NHTSA had prepared for the proposed and final rule; NHTSA's Environmental Impact Assessment for the proposed and final rules; and
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NHTSA's completed forms for submitting the drafts of the proposed and final rules to OMB for review. See Morrall Decl., Exh. 6. Where, as here, there has been so much public disclosure that further disclosures would not significantly contribute to public understanding, a fee waiver request is properly denied. See, e.g., VoteHemp, Inc. v. Drug Enforcement Admin., 237 F. Supp. 2d 55,61 (D.D.C. 2002) (concluding that plaintiff had not shown how requested documents would give public greater understanding of agency policy than was already available; denial of fee waiver request affirmed

in grant of summary judgment to defendant); Carney v. U.S.Dep't ofJustice, 19 F.3d 807,815
(2d Cir. 1994) ("where records are readily available from othcr sources . . . further disclosure by the agency will not significantly contribute to public understanding").

b.

OMB Would Be Unlikely to Release Information Not Already in the Public Domain.

In its initial denial of CBD's fee waiver requcst by letter dated January 26, 2007 and

again in its denial of CBD's appeal by letter dated June 12, 2007, OMB consistently explained that OMB would be unlikely to release a significant amount of information not already in the public domain because of OMB's unique role as a deliberative agency which provides advice to the President. OMB explained that it expected that "most of the responsive documents that OMB would locate . . . would consist of pre-decisional opinions, discussions, andlor draft versions of the proposed and final rule, which were being considered, commented upon and Branch staff' - quintessential pre-decisional, deliberative communications revised by Execut~ve exempt from disclosure under FOIA Exempt~on U.S.C. §552(b)(5). OMB based this 5.5 expectation on its "cxpcrience in responding to FOIA requests seeklng similar types of deliberative materials." CBD argued to OMB that it was improper for OMB to consider the privilcgcd nature of based on some case law holding such considerations to be generally improper under FOIA. CBD's cases. However, the cases relied upon by CBD acknowledge that it is proper to deny a fee waiver on this basis in those "rare cases" where the FOIA request is for documents that are ''patently exempt" from disclosure. See Carney v. U S . Dep't ofJustice, 19 F.3d 807, 815 (2d
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Cir. 1994); Judicial Watch, Inc. v. United States Department ofEnergy, 310 F. Supp.2d 271,295 [D.D.C. 2004), reversed inpart on other grounds, 412 F.3d 125 (D.C. Cir. 2005). While neither Carney nor Judicial Watch held that the "patently exempt" test was met in those cases, OMB submits that the unique role it plays among federal agencies - as a deliberative agency which provides advise to the President about proposed regulations - makes this the "rare :asen in which it is proper for an agency to decline to grant a fee waiver in light of the privileged nature of the material likely to be found upon a search for responsive documents. That is particularly true, here, since OMB did not, and could not, have issued the regulation in question. As OMB explained in its denial of CBD's fee request, OMB relied on its .'experience in responding to FOlA requests seeking similar types of deliberative materials" to make the judgment that a fee waiver was not appropriate in light of the privileged nature of what would be found in a search. See Morrall Decl., Exh. 6 at p. 3. In fact, at the time CBD's fee waiver request was under consideration OMB was in the process of litigaling a case in which California's Attomey General sought a subset of the documents at issue in CBD's FOIA request. That case, People of the State of California ex rel. Edmund G. Brown, Attorn9 General of the
State of California v. NHTSA et al., Case No. 06-2654), ended on or about June 13,2007 after

Judge Conti entered judgment for OMB following the Court's grant of OMB's motion for summary judgment. Prior to sending the June 12,2007 letter denying CBD's appeal of the denial of its fee waiver request, OMB reviewed those documents and determined that the documents in question contained internal inter and intra-governmental predecisional deliberations leading up to various decisions related to the issuance of the NPRM. See Morrall Decl., 7 8. Even a cursory review of the deliberative process privilege underscores that it would apply to most of the documents sought by CBD, highlighting a reason for denying CBD's fee waiver request. The purpose of the privilege is to "prevent injury to the quality of agency decisions." National Labor Rel. Bd. v. Sears. Robuck & Co.,421 U.S. 132, 149, 154 (1975). Specifically, the deliberative process privilege selves to assure that agency staff can freely opine on proposed policies without fear of public criticism, and to prevent the revelation of preliminary views that do not reflect the agency's ultimate position. Coastal States Gas Corp. v. Depurtment
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ofEnergy, 617 F.2d 854, 866 (D.C. Cir. 1980). "By maintaining the confidentiality of the giveand-lake that occurs among agency members in the formulation of policy," the privilege "encourages frank and open discussion of ideas, and hcnce, improves the decisionmaking process." National Wildlife Fed'n v. U.S. Forest Sew., 861 F.2d 1114, 1117 (9" Cir. 1988). To fall within the deliberative process privilege, a document must be both "predecisional" and "deliberative." Carter v. U S . Dep 't of Commerce, 307 F.3d 1084, 1089 (9thCir. 2002). A document is "deliberative" if it is "a direct part of the deliberative process" in that it "makes recommendation or expresses opinions on legal or policy matters." Vaughn v. Roseiz, 523 F.2d 11136, 1143-44 (D.C. Cir. 1975). It is "predecisional" if it was generated before the adoption of an agency policy, National Wildlife Fed'n, 861 F.2d at 1117, and was prepared "to assist an agency decisionmaker in aniving at his decision." Maricopa Audubon Soc 'y v. U S . Forest Sen)., 108 F.3d 1089, 1093-94 (9thCir. 1997). Following these standards, courts have held that the deliberative process privilege covers "all 'recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." National

Wildlife Fed'n, 861 F.2d at 1118-19. Furthermore, the privilege shields not only deliberative
communications, but also information that would reveal the agency's deliberative process itself.

Id. at 1119.
CBD's FOIA request plainly seeks documents that, almost by definition, are protected from disclosure under the deliberative process privilege. The FOIA request seeks "all documents relating to the developr?rentof the Final Rule" . . . including "communications among staff and others that were created during the development of the Final Rule and the Proposed Rule." Morrall Decl., Exh. 1 at p. 1 (emphasis added). CBD further specifies that its request "includes but is not limited to e-mail exchanges or other correspondence among agency staff and others, draft documents, internal reviews and critiques, inter-agency reviews, agency meeting notes, etc.l

Id Virtually evety document fitting this description would be withheld from disclosure under
the deliberative process privilege.

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c.

CBD Cannot Obtain a Fee Waiver to Use FOI.4 To Test Compliance With Federal Statutes.

CBD's consistently argued that its fee waiver request should have been granted by OMB Jecause the documents would bear on whether or not OMB had complicd with various federal itatutes. For example, in support of its appeal of OMB's initial denial of the fee waiver request :BD stated that the documents it sought "will undoubtedly provide meaningful understanding of IMB's compliance with federal statutes including the Energy Policy and Conservation Act "EPCA") and the National Environmental Policy Act ("NEPA"), . . . This is certain to shed light In the OMB's decision-making process and compliance with applicable law." Morrall Decl., Zxh. 5 at p.7. See also id. at Exh. 5 , p. 2 (documents will "help reveal whether OMB's actions were inappropriately influenced) & p. 4 (documents "may shed light on the CAFE standards ;uch that action should be taken pursuant to the EPCA, APA, or other applicable law"; ""Perhaps he documents will . . . "shed light on improprictics in the rulemaking") & 7 (documents go to 'OMB's compliance or non-compliance with applicable law"); Exh. I at p.3 (documents "are ;&ah to shed light upon the agencies' compliance with EPCA and the Administrative 'rocedures Act"); Exh. 7 at p. 3 (documents "will shed light on government compliance with ~pplicable laws"). That argument beings with a faulty premise because NHTSA, not OMB, was the ulemaking agency and the one with legal responsibility for promulgating regulations in ;ompliance with statutes such as EPCA and NEPA. OMB's contention was borne out in the Vinth Circuit's opinion in Centerfor Biological Diversity v. Aktional Highway Trafic Safely

4dministration, 508 F.3d 508 (9IhCir. 2007). The Court there addressed NHTSA's compliance
with EPCA and NEPA and OMB was neither a party to that suit nor an agency subject to answer 'or NHTSA's final rule. Even if the premise were not faulty CBD's argument would still fail. In McClellan, the %nth Circuit addressed a fee waiver request sought by a nonprofit association that sought nformation about water pollution at the McClellan Air Force Base in the Sacramento area.

McClellan, 835 F.2d at 1283. In the group's letter requesting a fee waiver they stated that the
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information "may be used in litigation to ensure that agencies comply with federal law" among other reasons. Id. at 1285. The Ninth Circuit held that such statements did not support a fee waiver (id., citing Natiortal Treasury Employees Union v. Grzfin, 81 1 F.2d 644, 647 (D.C. Cir. 1987); moreover, the Court explained that - taken to its logical extreme - a public interest group could "demand fee waiver on a request for all U.S. government documents, on the basis that the information might be used in litigation to ensure that agencies comply with federal law." Id. (emphasis in original). CBD's basis for its fee waiver request suffers from the same critical defect. It is not a sufficient basis to obtain a fee waiver by contending that the requested information will bear on whether or not some federal agency is complying with federal law, particularly where, as here, there is no evidence of any kind that OMB did anything improper with respect to the rulemaking at issue. Indeed, it is hard to conceive orhow OMB could have done anything improper given that the rulemaking in question was never OMB's rule to issue. See, e.g., VoteHemp, Inc. v.
Drug Enforcement Admin., 237 F . Supp. 2d 55, 61 (D.D.C. 2002) (rejecting as "rank

speculation" allegations that plaintiff entitled to fee waiver based on allegation that agency had "ulterior motive" when it published interpretive rule); AFGE v. U.S Dep 't of Commerce, 632 F . Supp. 1272, 1278 (D.D.C. 1986) (finding union's allegations of agency malfeasance too ephemeral to warrant waiver of fees without evidence that informative information would be disclosed), aff'd, 907 F.2d 203 (D.C. Cir. 1990).
IV.

CONCLUSION
For all of the foregoing reasons, OMB requests that the Court grant its motion for

summary adjudication and hold that CBD is required to pay or agree to pay OMB's search and copy costs before OMB is required to begin to process CBD's FOlA request. Dated: January 25, 2008 Respectfully submitted, JOSEPH P. RUSSONIELLO United States Attomey

By:

Is1 Michael T. Pyle Assistant U.S. Attorney 14

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