ITSSD FOIA Request ClarificationFiled April 28, 2014; Withdrawn 7/1/14 & Superseded

This annotated FOIA Request Clarification seeks disclosure of all EPA records ("all EPA climate science-related peer review files") substantiating the specific measures EPA had taken, consistent with the highest and most rigorous peer review, conflict-of-interest and transparency standards applicable to highly influential scientific assessments ("HISAs") imposed by the Information Quality Act ("IQA") and the Office of Management and Budget ("OMB") and EPA IQA-implementing guidelines to ensure the quality, integrity and reliability of EPA- and third-party-developed climate science-related assessments and reports upon which the EPA Administrator primarily relied in reaching (in 2009) positive greenhouse gas ("GHG") endangerment and cause or contribute findings under Clean Air Act Sec. 202(a)(1).
ITSSD FOIA Fee Waiver Request Clarification - Filed April 28, 2014; Withdrawn 7/1/14 & Superseded

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 40 C.F.R. Sec. 2.107(l)(1)-(3) of EPA's FOIA-implementing regulations.  This means that: 1) the subject of the requested records concern identifiable operations and activities of the federal government, with a connection that is direct and clear (40 C.F.R. Sec. 2.107(l)(2)(i)); 2) disclosure of the requested records is likely to contribute to public understanding of government operations or activities (40 C.F.R. Sec. 2.107(l)(2)(ii)); 3) disclosure of the requested information 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 (40 C.F.R. Sec. 2107(l)(2)(iii)); 4) disclosure of the requested information is likely to contribute 'significantly' to public understanding of government operations or activities (40 C.F.R. Sec. 2.107(l)(2)(iv)); 5) the Requester does not have a commercial interest that would be furthered by the requested disclosure (40 C.F.R. Sec. 2.107(l)(3)(i)); and 6) the public interest in disclosure is greater in magnitude than that of any identified commercial interest in disclosure; therefore, disclosure of the requested information is not 'primarily' in the commercial interest of the Requester' (40 C.F.R. Sec. 2.107(l)(3)(ii)). It also seeks for ITSSD to be categorized as an 'educational institution' for fee assessment purposes if this Fee Waiver Request Clarification is denied, pursuant to 40 C.F.R. Sec. 2.107(c)(1)(i)-(iv).
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 Freedom of Information Act requests filed with the U.S. Environmental Protection Agency ("EPA") agency records that would substantiate whether the key climate assessments and applied computer models underlying EPA's 2009 Clean Air Act-related greenhouse gas ("GHG") Final Endangerment Findings had been adequately validated in conformance with 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") in conformance with the Information Quality Act.   During this period, ITSSD performed extensive research to ascertain whether EPA had satisfied these IQA standards. ITSSD's findings are incorporated within the original, clarified and recast FOIA requests it filed with EPA which, along with EPA Office of Air and Radiation ("EPA-OAR") and EPA Office of Environmental Information ("EPA-OEI") responses, are set forth below.

ITSSD findings strongly suggest, if not confirm, that EPA Headquarters and regional offices had failed to ensure that the mostly third party-developed climate science assessments and applied computer models EPA adopted, endorsed and used as its primary basis for its Clean Air Act-related GHG Final Endangerment Findings had been validated in conformance with the IQA.

ITSSD previously issued a press release explaining its national IQA-focused FOIA education campaign.  It also has 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.  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 & Media References 2014" pages of this website.

ITSSD's research and experience with EPA-OAR and EPA-OEI responses to its original, clarified and recast FOIA requests raises serious questions concerning the findings reported by the EPA Office of Inspector General ("EPA-OIG") in its 2011 investigation of EPA's GHG Endangerment Finding IQA processes and its 2014 investigation of EPA's FOIA processes.

​ITSSD Programs - Theme #4 (2014)

International Regulatory Transparency

​ITSSD IQA-Focused FOIAs Filed With EPA​

EPA-OGC Acceptance of ITSSD Request to Withhold FOIA Request No. EPA-HQ-2014-008026 Appeal Determination Pending Review of New ITSSD NOAA FOIA Request Dated Sept. 16, 2014

​​"As discussed by phone last week, this new [NOAA] FOIA request contains information that is material and relevant to the ITSSD Appeal of EPA's denial of its prior fee waiver request now before you for consideration.  In particular, this new FOIA request establishes how a critical link in the chain-of-evidence that EPA used as the scientific foundation for its 2009 CAA Section 202(a) GHG Endangerment Findings [...] had failed to satisfy the IQA's most rigorous and least discretionary objectivity, independence and conflicts-of-interest standards applicable to "highly influential scientific assessments" ("HISAs") and "influential scientific information" ("ISI")...

EPA Office of General Counsel Denies ITSSD's Appeal for a Waiver of Fees Related to its FOIA Request - Dated Oct. 16, 2014;

"...I have determined that you have failed to demonstrate how disclosure of the information requested in ITSSD's June 30 FOIA request is likely to "substantially" contribute to the public's understanding of how EPA's scientific peer review operations and activities ensure the "quality, integrity and reliability" of EPA-developed or internal or external HISAs supporting the Endangerment Finding and how EPA fulfilled the alleged four levels of legal obligations imposed by the IQA and OMB and EPA's IQA-implementing guidelines..."
New ITSSD FOIA Request No. EPA-HQ-008026 - Filed June 30, 2014
(Recorded July 1, 2014)             Word Version (here)   PDF Version (here)
​This new 145-page FOIA Request, accompanied by an annotated Addendum and six Appendices, seeks disclosure of all "EPA climate science-related peer review files" created, transmitted, stored and/or archived from January 1, 2005 through December 31, 2011, substantiating the specific measures EPA 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 EPA IQA-implementing guidelines, to ensure the quality, integrity and reliability of all EPA- and third party-developed and peer reviewed climate science-related assessments and reports upon which the Administrator primarily relied in reaching its 2009 positive Greenhouse Gas ("GHG") Endangerment and Cause or Contribute Findings under Clean Air Act ("CAA") Section 202(a)(1).
EPA Denial of ITSSD Initial Requests for Fee Waiver - Decided March 27, 2014
EPA's denial was based on the following rationale: 

"You have not expressed a sufficient intent to disseminate the information to the general public.  As a result, of you failing to meet the above criteria, accordingly, there is no need to address the remaining prongs of the fee waiver criteria".
Governmental

ITSSD Appeals EPA Denial of FOIA Fee Waiver Request - Filed August 15, 2014;
Acknowledgement of Receipt August 18, 2014 

"The nonprofit Institute for Trade, Standards and Sustainable Development ("ITSSD") hereby appeals the Environmental Protection Agency ("EPA")'s July 15, 2014 denial of its request to have fees waived or substantially reduced for a Request filed under the Freedom of Information Act ("FOIA"), dated June 30, 2014.  ITSSD's FOIA Request seeks records substantiating EPA's validation of the scientific assessments supporting the Administrator's Clean Air Act Section 202(a)(1) Findings in conformance with the Information Quality Act (Section 515, Public Law 106-554, 114 Stat. 2763A-153-154 (2000); 44 U.S.C. Section 3516 note)..."

EPA Payment Assurance Letter Clarification - Dated August 15, 2014  

"...The options and associated costs the U.S. Environmental Protection Agency (EPA or Agency) provided to ITSSD in our previous correspondence are based on EPA's understanding of the scope of your FOIA request.  Despite our requests that ITSSD narrow the request, the scope of your request is still very large (containing over 100 subparts), thus complicating our ability to estimate EPA's total costs for processing the request.  EPA used the factors described below to best estimate the level of effort involved in processing ITSSD's FOIA request [...]  EPA requires written assurance that ITSSD will pay the estimated total cost associated with the option ITSSD selects.  A response email to this correspondence, containing ITSSD's option selection and assuring payment at the completion of the FOIA request, will suffice.  With respect to your request, the Agency is not requiring an advance payment at this time..."
.New ITSSD New FOIA Fee Waiver Request No. EPA-HQ - Filed June 30, 2014 (Recorded July 1, 2014)  (Supersedes FOIA Request No. EPA-HQ-004938)          Word Version (here)   PDF Version (here)

This new FOIA Fee Waiver Request describes why ITSSD satisfies, with respect to its new FOIA Request, each of the substantive elements of EPA's six-factor fee waiver test of 40 C.F.R. Sec. 2.107(l)(1): 1) the subject of the requested concern identifiable activities of the federal government, with a connection that is direct and clear (40 C.F.R. Sec. 2.107(l)(2)(i)); 2) disclosure of the requested records is likely to contribute to public understanding of government operations or activities (40 C.F.R. Sec. 2.107(l)(2)(ii)); 3) disclosure of the requested information 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 (40 C.F.R. Sec. 2.107(l)(2)(iii)); 4) disclosure of the requested information is likely to contribute significantly to public understanding of government operations or activities (40 C.F.R. Sec. 2.107(l)(2)(iv)); 5) the Requester does not have a commercial interest that would be furthered by the the requested disclosure (40 C.F.R. Sec. 2.107(l)(3)(i); and 6) the public interest in disclosure is greater in magnitude than that of any identified commercial interest in disclosure; therefore, disclosure of the requested information is not "primarily in the commercial interest of the Requester (40 C.F.R. Sec. 2.107(l)(3)(ii).
U.S. Environmental Protection Agency - (*Demonstrated EPA FOIA Obstruction*)
EPA to Charge ITSSD for Full Search & Copy Costs   - Decided May 6, 2014


"This is in response to your Fee Waiver Request Clarification letter of April 28, 2014 asking to be categorized as an 'educational institution' for the above referenced matter.  Based upon your request submission, we have placed your request in the 'other' fee category, and you will be charged for the costs of search time, and duplication, excluding the first two hours of search time and the first 100 pages of duplication..."
ITSSD FOIA Request No. EPA-HQ-2014-004938 - ​Filed March 21, 2014; Withdrawn 7/1/14 & Superseded
Government Agency:  U.S. Environmental Protection Agency (also filed with nine (9) EPA regional offices.)
ITSSD Response to EPA Payment Assurance Letter Re: New FOIA Request EPA-HQ-2014-008026  - Dated August 7, 2014)

​"ITSSD is pleased your correspondence tacitly acknowledges that ITSSD's FOIA Request reasonably describes at least certain of the "EPA climate science-related peer review files" requested consistent with 5.U.S.C. Sec. 552(a)(3)(A), there exist actual identified records for EPA to search, and that, in accordance with 40 C.F.R. Section 2.106, such '[r]ecords shall not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA.'  ITSSD also is pleased that your correspondence presents ITSSD with various alternative options for facilitating EPA's response to said request.  Nevertheless, we have several questions regarding these alternatives..." 
EPA Response to New ITSSD FOIA Request EPA-HQ-2014-008026Dated July 22, 2014)


​"Your 145-page FOIA request does not reasonably describe the records you are seeking in a way that will permit EPA employees to identify and locate them.  Pursuant to 40 C.F.R. Sec. 2.102(c), we would like to provide you the opportunity to clarify the records that you are seeking so that EPA can process your request." 

Second ITSSD FOIA Request Clarification - Filed May 16, 2014; Withdrawn 7/1/14 & Superseded


"This Second ITSSD FOIA Request Clarification...once again, identifies the following EPA Records for public disclosure: 1) All EPA records pertaining to climate science-related assessments (HISAs) upon which the EPA Administrator's CAA Section 202(a)(1) findings primarily and heavily relied; 2) All EPA records pertaining to the Parties that had likely conducted and had statutory and administrative legal responsibility for conducting, under the IQA and OMB and agency IQA-implementing guidelines, peer reviews of such HISAs; 3) All EPA records pertaining to how EPA's review of such peer reviewed HISAs had complied with the highest and most rigorous peer review, conflict-of-interest, independence, bias and transparency standards imposed by the IQA and relevant OMB and agency IQA-implementing guidelines; and 4) All EPA records pertaining to how EPA's choice of an administrative mechanism to afford stakeholders an opportunity to seek correction or reconsideration of HISAs that EPA had disseminated in violation of the IQA and OMB and EPA IQA-implementing guidelines had satisfied EPA's statutory and administrative IQA-related obligations." 
EPA Denial of ITSSD Fee Waiver Request Clarification - Decided May 6, 2014
EPA's denial was based on the following rationale:


"Based upon review of your recent submission, we must affirm our denial."

"Providing an informed, reasoned and dispassionate

voice to the global public debate..."

EPA Payment Assurance Letter in Response to ITSSD Response of 7-25-14 Re: New FOIA Request EPA-HQ-2014-008026  - Dated August 1, 2014)


​"Based upon our review of the scope of records that would be responsive to your request -- including the search and duplication costs -- we estimate that the fees will exceed the $25.00 threshold for billing and notification.  This estimate is based on the "other" fee category set out in EPA FOIA regulations at 40 C.F.R. Sec. 2.107 [...] After consulting with relevant staff, we estimate that searching for documents potentially responsive to your FOIA request would total $27,020.00.  Our calculation is based on preliminary identification of staff who work on these issues and an estimate of the amount of time each person would need to perform a search for documents.  We also estimate that to fully process the request as written would take 1 year with an estimated completion date of August 1, 2015 [...] We request your assurance to pay the $27,020.00 fee in advance of processing your request [...] You may want to consider narrowing your request.  In an effort to assist you in this process, we would encourage you to consider whether any of the below options, with their associated costs and processing times, are satisfactory..." 

ITSSD Clarification of New FOIA Request EPA-HQ-2014-008026  - Dated July 25, 2014)

​"[Consistent with 40 C.F.R. Sec. 2.102(c),] ITSSD's FOIA Request No. EPA-HQ-2014-008026 identifies and describes in granular detail four categories of specific records (defined interchangeably as "EPA climate science-related peer review files" and "EPA Peer Review Records") [...] Indeed, [...] our 145-page request describing the records sought is the model of specificity [...] If you find that this response is adequate and does not reasonably describe the records requested, EPA should deny the request in full to permit the appeals process to move forward..." 
EPA Denial of Fee Waiver Request - FOIA Request No. EPA-HQ-2014-008026 - Dated July 15, 2014

​​"We have reviewed your fee waiver justification and based on the information you provided, we are denying your request for a fee waiver.  You have not expressed a specific intent to disseminate the information to the general public." 
EPA-OAR Email Alleges ITSSD FOIA Requests and FOIA Request Clarification "Do Not Reasonably Describe the Records" [ITSSD is'] Seeking", and Calls for ITSSD Withdrawal and Redrafting of Them - Email Dispatched May 8, 2014 


"The March 21 FOIA request and April 28 clarification do not reasonably describe the records you are seeking...in a way that will permit EPA employees to identify and locate them...because of the following reasons..."