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ITSSD Files Appeal of NOAA Denial of ITSSD Fee Waiver Request on Amended/Modified/Bifurcated FOIA Request No. DOC-NOAA-2014-001694 
Dated January 7, 2015  


NOAA Office of General Counsel Acknowledgement of Receipt of ITSSD Appeal
Dated January 9, 2015


The nonprofit Institute for Trade, Standards and Sustainable Development (ITSSD) hereby appeals the December 11, 2014 denial by the U.S. Department of Commerce National Oceanic & Atmospheric Administration Office of the Chief Information Officer of ITSSD's Request for Fee Waiver dated and filed on December 5, 2014...

DOC-NOAA Acknowledges Receipt of ITSSD Filed Fee Waiver Request With Respect to Amended/Modified/Bifurcated FOIA Request No. DOC-NOAA-2014-001694
Dated December 5, 2014  


"​Thanks a lot for providing your fee waiver appeal...I will provide you a detailed estimate for the first part of your request next week...The more we learn about what you're requesting, the number of hours are escalating."
ITSSD Reply to DOC-NOAA Undated, Unsigned and Letterhead-Free Fee Estimate Transmitted via Email Dated November 12, 2014 -
Dated November 14, 2014  
DOC-NOAA Undated, Unsigned and Letterhead-Free FOIA Fee Estimate Transmitted via Email Dated November 12, 2014 -
Dated November 12, 2014  
ITSSD Amends/Modifies/Bifurcates FOIA Request into two Tranches/Caches of Documents Per NOAA Agreement; Submits First Tranche/Cache of "Clearly and Obviously Identified Documents" to Facilitate Expedited NOAA Disclosure -
Filed October 27, 2014


"The purpose of this letter is to make actionable the mutual verbal agreement reached during our phone discussion [of October 21, 2014].  As you may recall, and as confirmed again today by telephone, we agreed that it would aid NOAA's efforts in performing a good faith search of agency files in response to FOIA request No. DOC-NOAA-2014-001694 if ITSSD were to separate into two tranches/caches the documents for which agency disclosure is sought..." 
DOC-NOAA Denies ITSSD Fee Waiver Request Because FOIA Request's Listing of Specific Contracts Doesn't Reasonably Describe Files Requested!! - Dated October 10, 2014


After reviewing your request I determined that your fee waiver justification was insufficient in detail to enable me to grant your fee waiver request. [...] NOAA is still without the clarity and information required to grant you a fee waiver.​ [...] This constitutes a denial of your fee waiver. [...] If you would like Mr. Fox and his colleagues to continue working on your request [...] the initial fee estimate is $7500 for search fees.
DOC-NOAA Request for ITSSD FOIA Request Clarification -
Dated September 30, 2014  
ITSSD Response to DOC-NOAA Request for FOIA Request Clarification -
Filed October 1, 2014


ITSSD disagrees with the NOAA National FOIA Office's insinuation that ITSSD's request does not "reasonably describe the records" sought.  ITSSD, however, without waiving any of its rights under FOIA, will respond to your offices' latest request "to clarify the records" ITSSD is seeking... 
DOC-NOAA Denial of Fee Waiver Request for Clarification of FOIA Request No. DOC-NOAA-2014-000714 - Decided May 28, 2014  
DOC-NOAA Denial of Fee Waiver Request for FOIA Request No. DOC-NOAA-2014-000714 - Decided April 1, 2014

U.S. Department of Commerce, National Oceanic & Atmospheric Administration - (*Demonstrated NOAA FOIA Obstruction*)
Theme #4:  Protection of the 'public interest' (constitutional protection of individuals' inherent right to 'due process of law') in an era of expanding international regulatory cooperation depends on the establishment, maintenance and oversight of mutually transparent risk-based best available science ("BAS") and economic cost-benefit-analysis-driven government regulatory and technical standards regimes that assure meaningful public participation and input.  These regimes must provide public notice and comment mechanisms of sufficient duration prior to agency adoption of final rulemakings, and must offer adequate data/information quality review mechanisms to ensure the validity and reliability of agency and third-party-generated science & technical data/information prior to government dissemination and use of it as the bases for agency decision-making, including economically significant rulemakings and administrative enforcement actions. 


Since February 2013, ITSSD has investigated and endeavored to secure via an IQA-focused Freedom of Information Act ("FOIA") request filed with the U.S. Department of Commerce's National Oceanic and Atmospheric Administration ("DOC-NOAA") in March 2014 and subsequently clarified in May 2014, records that would substantiate whether DOC-NOAA's validation of the climate science assessments and computer model applications that it developed and/or reviewed (directly via established federal advisory committees or indirectly via third party contractors such as the U.S. Global Change Research Program and the National Research Council of the National Academies of Science), which DOC-NOAA knew or had reason to know the EPA Administrator would rely upon as primary support for its 2009 Clean Air Act-related greenhouse gas ("GHG") Final Endangerment Findings, had satisfied the most rigorous and least discretionary, peer review, transparency, objectivity/bias, conflict-of-interest and administrative review standards applicable to "highly influential scientific assessments" ("HISAs") imposed by the Information Quality Act.

​ITSSD incorporated its research findings revealing DOC-NOAA IQA lapses, including numerous instances of apparent conflicts-of-interest at the individual and institutional levels, within its filed FOIA request and Fee Waiver request set forth below.  These findings strongly suggest, if not confirm, that DOC-NOAA had failed to ensure that the climate science assessments and applied computer models it developed and/or reviewed, which it knew or had reason to know the EPA Administrator would rely upon as primary support for its Clean Air Act-related 2009 Final GHG Endangerment Findings had been validated in conformance with the IQA.


ITSSD's reesearch and experience with DOC-NOAA written and verbal responses to its original and subsequently clarified FOIA request raise serious questions regarding the truthfulness of DOC-NOAA's representations that the agency did not know whether its climate science and computer model applications would be used as primary support for the EPA Administrator's Findings. 

ITSSD previously issued a press release explaining its national IQA-focused FOIA education campaign.  It also drafted articles published by media outlets explaining its IQA-focused FOIA efforts and research findings, and their implications beyond EPA's implementation of the Clean Air Act.  Various media have reported about these efforts, findings and implications, as well.  The press release, drafted articles and media reporting are publicly accessible on the "Press Releases", "Library White Papers 2014", "Library Publications 2014", "Industry, Trade & Professional References 2013-2014", and "Mainstream News & Editorial Media References 2014" pages of this website.

During June 2014, DOC-NOAA requested that ITSSD withdraw its existing FOIA request and file a new FOIA request.  Such a new FOIA request was subsequently prepared, and it was filed with NOAA during September 2014, as noted below.

​ITSSD Programs - Theme #4 (2014)

International Regulatory Transparency

ITSSD IQA-Focused FOIA Requests Filed With DOC-NOAA​

DOC-NOAA Email Acceptance of ITSSD Amendment/Modification/Bifurcation of FOIA Request No. DOC-NOAA-2014 -001694 
Dated November 7, 2014

 ​"Mr. Kogan, thank you so much for simplifying your request..."
ITSSD Reply of November 28, 2014, to DOC-NOAA Response via Email Dated November 21, 2014, Re: Amended/Modified/Bifurcated FOIA Request No. DOC-NOAA-2014-001694 
Dated November 28, 2014  
DOC-NOAA Response via Email Dated November 21, 2014, to ITSSD Reply of November 14, 2014 -
Dated November 21, 2014  


​"Mr. Kogan, we are awaiting your confirmation or denial to pay the fee required for us to search for these records...Please remember you have requested a fair amount of data, that's still somewhat vague in some areas..."

ITSSD Supplement to DOC-NOAA Fee Waiver Request 
Filed September 30, 2014  
New ITSSD DOC-NOAA Fee Waiver Request - Filed September 22, 2014  (Supersedes Fee Waiver Request Re: FOIA Request No. DOC-NOAA-2014-000714)
​Word version (here)    PDF version (here)

This new Fee Waiver Request accompanies ITSSD's new DOC-NOAA FOIA Request.  It explains why and how ITSSD's new FOIA Request satisfies the six-factor fee waiver test of 15 C.F.R. Section 4.11(k)(1)-(3) and is, consequently, entitled to a fee waiver under the FOIA statute. 
New DOC-NOAA FOIA Request No. DOC-NOAA-2014-001694 - Filed September 22, 2014  (supersedes Request No. DOC-NOAA-2014-000714)   
Word Version (here)   PDF Version (here)


​This new FOIA Request is accompanied by a detailed Annotated Addendum and 14 clusters of Appendices (44 Appendices in all) revealing compelling evidence that NOAA and NOAA third-party contractor peer reviews of ten (10) NOAA developed climate assessments, which NOAA knew or should have known would be used by the EPA Administrator as scientific support, in part, for EPA's 2009 Clean Air Act Greenhouse Gas ("GHG") Endangerment Findings, had failed to satisfy the most rigorous and least discretionary IQA statutory and administrative law transparency, objectivity, independence and conflicts-of-interest standards applicable to "highly influential scientific assessments" ("HISAs") and "influential scientific information" ("ISI").  This new FOIA Request seeks disclosure of specific "NOAA climate science-related peer review files" that would otherwise substantiate NOAA's IQA compliance with such standards.  

Governmental
ITSSD/DOC-NOAA Email Correspondences Re: Filed ITSSD FOIA Request With DOC-NOAA - March 26-27, 2014  
ITSSD FOIA Request No. DOC-NOAA-2014-000714 - Filed March 26, 2014 (HQ/six regional collaboration teams); Withdrawn & Superseded  Sept. 22, 2014
ITSSD DOC-NOAA FOIA Request Clarification - Re: FOIA Request No. DOC-NOAA 2014-000714Filed May 5, 2014 - Withdrawn & Superseded Sept. 22, 2014

This annotated FOIA Request Clarification seeks disclosure of all DOC-NOAA records ("all DOC-NOAA climate science-related peer review files") substantiating the specific measures DOC-NOAA had taken, consistent with the highest and most rigorous standards applicable to highly influential scientific assessments ("HISAs") imposed by the Information Quality Act ("IQA") and the Office of Management and Budget ("OMB") and DOC-NOAA IQA-implementing guidelines, to ensure the quality, integrity and reliability of all DOC-NOAA-developed (in whole or in part) and/or reviewed climate science-related assessments and reports which DOC-NOAA knew or had reason to know the EPA Administrator would rely upon in reaching positive greenhouse gas ("GHG") endangerment and cause or contribute findings under Clear Air Act Sec. 202(a)(1).
ITSSD DOC-NOAA FOIA Fee Waiver Request ClarificationFiled May 5, 2014; Withdrawn & Superseded Sept. 22, 2014

This annotated FOIA Fee Waiver Request Clarification seeks to demonstrate that ITSSD's FOIA Request Clarification satisfies all six factors of the six-factor fee waiver test of 15 C.F.R. Sec. 4.11(k)(1)-(3) of DOC-NOAA's FOIA-implementing regulations. This means that: 1) the requested records concern the operations or activities of the federal government (15 C.F.R. Sec. 4.11(k)(2)(i)); 2) disclosure of the requested records is likely to contribute to public understanding of government operations or activities (15 C.F.R. Sec. 4.11(k)(2)(ii)); 3) disclosure of the requested records will contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the Requester (15 C.F.R. Sec. 4.11(k)(2)(iii)); 4) the disclosure of the requested information is likely to contribute 'significantly' to public understanding of government operations or activities (15 C.F.R. Sec. 4.11(k)(2)(iv)); 5) the Requester does not have a commercial interest that would be furthered by the requested disclosure (15 C.F.R. Sec. 4.11(k)(3)(i)); and 6) the public interest in disclosure is greater than any identified commercial interest; therefore, disclosure of the requested information is not "primarily in the commercial interest of the Requester". (15 C.F.R. 4.11(k)(3)(ii)).