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Leave a Comment REGULATION BY INFORMATION

September 28, 2000

BY TELECOPIER (202/501-0063) AND FIRST CLASS MAIL

Ms. Cynthia Floyd-Coleman
Freedom of Information Act Officer
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W., Mail Code 1105-A
Washington, D.C. 20460

RE: Appeal of Denial of FOIA Request for Record(s) Identifying Recipients of Certain Clean Air Act 114 Letters; EPA RIN No. 05-RIN-01815-00

Dear Ms. Floyd-Coleman:

On July 26, 2000, I wrote to the FOIA Officer for EPA Region V and requested, pursuant to the Freedom of Information Act (5 U.S.C. 552; FOIA) and EPA's regulations implementing FOIA (40 CFR Part 2), a copy of an agency record or records that lists or otherwise identifies the corporate name, address, individual addressee or "contact person" (where applicable) and telephone number (where applicable) of approximately 400 facilities to whom Region V sent a Clean Air Act (CAA) 114 letter on approximately May 15, 2000 requesting the facilities to submit to EPA information relevant to each facility's compliance with the CAA 112(r) Risk Management Plan program, including the regulations at 40 CFR Part 68. (Copy of my July 26 FOIA request letter is attached.)

On August 28, 2000, I received by certified mail a letter dated August 24, 2000 from Mr. William E. Muno, Director, Superfund Division, EPA Region V, denying my request in its entirety. Mr. Muno stated that "We have located information that is responsive to your request", but denied the request based on the exemption at 5 U.S.C. 552(b)(7)(A). (Copy of Mr. Muno's denial letter is attached. That letter includes Mr. Muno's office street address.)

Pursuant to 40 CFR 2.114, I appeal Mr. Muno's denial of my FOIA request.

I am submitting the attached memorandum from CRE's legal counsel, Multinational Legal Services, LLC (MLS), in support of this appeal.

I note that Mr. Muno states in his letter that "[. . .] EPA reserves the right to assert any other applicable exemption to this information in the event Exemption 7(A) is no longer applicable". I urge the EPA General Counsel not to allow Mr. Muno to prolong this FOIA request by asserting whatever exemptions he may wish, seriatim.

Mr. Muno does not state what other FOIA exemption or exemptions he might assert. Please note that in the case of Cohen v. EPA, which involved a FOIA request for records that are in all key respects functionally identical to those requested by myself, the Judge specifically considered and rejected EPA's arguments that the records were exempt from disclosure pursuant to 552(b)(5) and 552(b)(7)(C), and indicated that EPA would be unable to sustain an argument that the records were exempt from disclosure pursuant to 552(b)(6). The Cohen v. EPA case is discussed in the attached MLS memorandum.

Accordingly, EPA should overrule the decision of Mr. Muno to deny my FOIA request and should immediately disclose the requested records to me.

If you have any questions, please call me at: (202) 265-2383. Thank you.

Sincerely,

Brooks J. Bowen
Attachments: July 26, 2000 FOIA request letter
August 24, 2000 denial letter from William Muno
Memorandum from Multinational Legal Services


MEMORANDUM

Facts

On July 26, 2000, Mr. Brooks J. Bowen, on behalf of the Center for Regulatory Effectiveness (CRE), wrote to the FOIA Officer for the Environmental Protection Agency (EPA) Region V and requested, pursuant to the Freedom of Information Act (5 U.S.C. 552; FOIA) and EPA's regulations implementing FOIA (40 CFR Part 2),
[. . .] a copy of an agency record or records that lists or otherwise identifies the corporate name, address, individual addressee or "contact person" (where applicable) and telephone number (where applicable) of approximately 400 facilities to whom Region V sent a Clean Air Act (CAA) 114 letter on approximately May 15, 2000 requesting the facilities to submit to EPA information relevant to each facility's compliance with the CAA 112(r) Risk Management Plan program, including the [regulations at 40 CFR Part 68]. [July 26, 2000 letter from Brooks J. Bowen to Ms. Louise DeBrower; hereafter referred to as the "CRE FOIA request".]
On August 24, 2000, Mr. William E. Muno, Director, Superfund Division, EPA Region V, wrote to Mr. Bowen and denied the CRE FOIA request in its entirety. Mr. Muno's letter stated that "We have located information that is responsive to your request", but denied the CRE FOIA request based on the exemption at 5 U.S.C. 552(b)(7)(A).

Mr. Muno cited two cases in his denial letter: National Public Radio v. Bell , 431 F. Supp. 509, 514-15 (D.D.C. 1977) and NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 232 (1984).

Points and Authorities

1. Legal Burden Is on EPA to Demonstrate Specific, Legally Sufficient and Fact-Based, Basis for Denying Disclosure Pursuant to 5 U.S.C. 552(b)(7)(A)

The FOIA statute (5 U.S.C. 552) has a strong presumption in favor of disclosure of records. Exemptions are to be construed narrowly, including 5 U.S.C. 552(b)(7)(A), which is the only exemption cited by Mr. Muno in his denial letter. Concrete Construction Co. v. Dept. of Labor, 748 F. Supp. 562, at 565 (S.D. Ohio, 1990).

Mr. Muno apparently misunderstands the fundamental policy favoring disclosure that is embedded in both the FOIA statute and EPA's FOIA regulations. Mr. Muno stated in the second paragraph on page 1 of his denial letter that "[. . .] we are unable to provide you with the requested records because they are exempt from disclosure under 5 U.S.C. 552(b)(7)(A)" (emphasis added).

Our view is that Mr. Muno is in no way compelled to withhold the requested records "because" they arguably come within the (b)(7)(A) exemption. Indeed, the last sentence on page 1 of Mr. Muno's denial refers to the "discretionary release standard". Mr. Muno clearly has the legal discretion to release the records even if as a matter of law EPA may withhold the records. 1EPA's regulations implementing the FOIA statute state: 2.119 Discretionary release of exempt documents

(a) An EPA office may, in its discretion, release requested records despite the applicability of one or more of the exemptions listed in 2.118 (a)(2), (a)(5), or (a)(7) [corresponding to 5 U.S.C. 552 (b)(7)]. Disclosure of such records is encouraged if no important purpose would be served by withholding the records. [40 CFR 2.119(a); emphasis added.]
If EPA persists in seeking to deny disclosure of the records based on 552(b)(7)(A), EPA must clearly articulate and explain the precise kind of interference with enforcement proceedings that could result from disclosure of the requested records. The explanation must be more than a boilerplate, conclusory affidavit, see, Miller v. U.S. Dept. of Agriculture, 13 F.3d 260 (8th Cir. 1993).
[T]he government must make a more specific showing of why the documents requested here could reasonably be expected to interfere with enforcement proceedings. [Miller, 13 F.3d at 263. See also, Concrete Construction Co., 748 F. Supp. at 568.]
Mr. Muno's denial letter fails to explain any reason why releasing the corporate name and address, and business contact person (if applicable) and business telephone number (if applicable) of the recipients of the 114 letters "could reasonably be expected to interfere with enforcement proceedings". (5 U.S.C. 552(b)(7)(A).)

In this instance, the recipients of the CAA 114 letters already know very well that: (1) they are the recipients; and (2) because EPA sent them a CAA 114 letter, they are potential subjects of EPA enforcement actions. In our view, disclosing the identifying information as requested in the CRE FOIA request, information that is already known to each recipient (i.e., each potential defendant), "[. . .] can in no way be said to interfere with the agency's legitimate law-enforcement functions". See, Legal Aid Society of Alameda County v. Shultz, 349 F. Supp. 771 (N.D. Cal 1972), at 777, quoting Wellford v. Hardin, 315 F. Supp. 175 (D. Md 1970), at 178 (other citations omitted as irrelevant).

Thus, the burden is on EPA to demonstrate specifically why disclosure of the information requested in the CRE FOIA request "could reasonably be expected to interfere with enforcement proceedings". (5 U.S.C. 552(b)(7)(A).)

2. EPA's Reliance on NPR v. Bell and NLRB v. Robbins Tire Is Misplaced

Mr. Muno cited two cases in his denial letter: National Public Radio v. Bell and NLRB v Robbins Tire and Rubber Co. Neither case is remotely "on point" with respect to the facts of the CRE FOIA request.

The National Public Radio case involved a request for extensive DOJ/FBI investigation files in the Karen Silkwood murder investigation. No perpetrators had been identified at that time (so far as one can tell from the opinion in the case). The court upheld the government's withholding of the requested files because the court found that:
[Release of the information requested under FOIA by National Public Radio] presents the very real possibility of a criminal learning in alarming detail of the government's investigation of his crime before the government has had the opportunity to bring him to justice. [National Public Radio v. Bell, 431 F. Supp. 509, at 514 - 515; footnote omitted.]
The CRE FOIA request does not involve any current or prospective enforcement action involving any currently-unidentified perpetrator, in contrast to the facts in NPR.

Moreover, the CRE FOIA request does not request disclosure of any agency record that constitutes evidence of any violation, again in contrast to the facts in NPR.

Thus, EPA's reliance on NPR v. Bell to deny the CRE FOIA request is misplaced.

In NLRB v. Robbins, involving an NLRB proceeding, the defendant company requested disclosure of a pre-hearing statement of a witness scheduled for an upcoming hearing. The Court upheld the government's denial of disclosure of the requested witness statement because of concerns about possible coercion or intimidation of the witness.

The CRE FOIA request involves no such request for any witness' evidence or the identity of any witness and thus involves no risk of tampering with a witness. Also, as indicated above, the CRE FOIA request does not request the disclosure of any type of evidence.

Thus, EPA's reliance on NLRB v. Robbins to deny the CRE FOIA request is misplaced.

3. EPA Is Obligated to Follow Cohen v. EPA, in Which EPA Was Compelled to Disclose Names of Recipients of CERCLA Notice Letters

In our view, the CRE FOIA request is in all key respects functionally identical to the FOIA request at issue in Cohen v. Environmental Protection Agency, 575 F. Supp. 425 (D.D.C. 1983).

The FOIA request in Cohen requested disclosure of names of recipients of EPA notice letters issued pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). The recipients of the letters were companies and individuals who had disposed of waste at what became a Superfund.site (or sites); in Superfund parlance, the recipients were "potentially responsible parties" for clean-up of the site(s), i.e., potential subjects of EPA enforcement action.

The court agreed with EPA that the requested records (names of recipients of CERCLA notice letters) were compiled for investigatory purposes within the meaning of FOIA Exemption (b)(7). However, the court rejected all of EPA's arguments that the records were exempt from disclosure pursuant to 552(b)(7)(A) because the EPA failed to articulate any persuasive reason why disclosure would interfere with law enforcement proceedings. See, Cohen, at 575 F. Supp. 427 - 429.

The Cohen case was decided prior to the 1986 amendments to FOIA, which altered the legal test for withholding disclosure pursuant to 552(b)(7)(A). In our view, in the context of both the Cohen case and the CRE FOIA request, it is immaterial whether the applicable legal standard for EPA to successfully invoke the 552(b)(7)(A) exemption is whether the release of the requested records "would interfere" (pre-1986 standard) or "could reasonably be expected to interfere" (post-1986 standard) with enforcement proceedings.

Under either standard, the burden is on EPA to demonstrate such interference. The Judge in Cohen clearly was not persuaded by EPA's affidavits and in our view the ruling in Cohen would have been the same i.e., to compel release of the records if the case had been decided pursuant to the "could reasonably be expected to interfere" standard.

4. EPA's "Reservation" of Other Exemptions

Mr. Muno states in his denial letter that "[. . .] EPA reserves the right to assert any other applicable exemption to this information in the event Exemption 7(A) is no longer applicable". Mr. Muno does not state what other FOIA exemption or exemptions he might assert.

We note that in the Cohen case, which involved a FOIA request for information that is functionally identical to that requested in the CRE FOIA request, the Judge specifically considered and rejected EPA's arguments that the records were exempt from disclosure pursuant to 552(b)(5)2 and 552(b)(7)(C)3. The Court also indicated that, under the facts of the case and in light of the settled principle that the FOIA privacy exemptions do not apply to information regarding professional or business activities, EPA would not be able to argue successfully that the records were exempt from disclosure pursuant to 552(b)(6)4, which is a more stringent standard for denying disclosure than is 552(b)(7)(C).5

Conclusion

For the reasons and based on the legal authorities stated above, EPA should overrule the decision of Mr. Muno to deny the CRE FOIA request and should immediately disclose the requested records to CRE.

Footnotes:

1. However, as is discussed below, as a matter of law EPA may not withhold the records requested in the CRE FOIA request.

2. "Exemption 5 is inapplicable on its face." Cohen, at 430.

3. "The information contained in the [CERCLA] notice letters [requested under FOIA] does not fall into the category of protected privacy interests." Cohen, at 430.

4. In Exemption 6, the standard for nondisclosure is that the disclosure "would constitute a clearly unwarranted invasion of personal privacy".

5. In Exemption 7(C), the standard for nondisclosure is that the disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy".