Representatives John D. Dingell and Henry Waxman, Ranking Members of the Committees on Energy and Commerce and Government Reform respectively, today expressed support for the efforts of the General Accounting Office (GAO) to review the activities of the National Energy Policy Development Group (the Cheney Energy Task Force). In its letter of June 22, 2001, to the White House, the GAO firmly reiterated its authority to investigate the Task Force and stated that it will take whatever steps necessary to proceed.
According to the letter, "GAO has broad authority ... to conduct the review and obtain the information requested." The letter responds to a June 7, 2001, letter from the Vice President’s attorney that claimed that GAO lacks the necessary authority to review the Task Force activities. The GAO response cites several past instances of GAO reviews of White House task forces, such as the Presidential Task Force on Health Care Reform.
"It is past time for the American people to find out what went on in Cheney’s Energy Task Force," Rep. Dingell said. "What are they hiding?"
"GAO has asserted its clear authority to scrutinize the Cheney Energy Task Force. There is absolutely no question that GAO has the authority to conduct this investigation," said Rep. Waxman. "The Vice President should stop stonewalling and start cooperating with GAO’s investigation. Congress is entitled to know the identity of the special interests that met with the Cheney Energy Task Force."
In the June 22 letter to the Office of the Vice President, GAO warned the White House that the Comptroller General is "prepared to issue a demand letter...if they do not receive timely access to the information." Under the law, an agency head has 20 days to respond to a demand letter. If the agency fails to respond, the Comptroller General may bring a civil action to compel the agency to respond.
On April 19, 2001, Congressmen Dingell and Waxman launched joint requests concerning the Energy Task Force, its members and proceedings to both the Vice President and the GAO. To date, the Office of the Vice President has failed to respond adequately to the Congressmen’s inquiries and has been combative with the GAO.
______________________________________________________________ Prepared for Rep. Henry A. Waxman Minority Staff Special Investigations Division Committee on Government Reform U.S. House of Representatives August 1, 2001
This report, which was prepared at the request of Rep. Henry A. Waxman, compares contributions from the energy industry to provisions in H.R. 4, the energy bill sponsored by the Republican leadership of the U.S. House of Representatives. The report finds that energy interests that gave millions of dollars in campaign contributions during the last election cycle will receive billions of dollars in tax breaks and subsidies under the legislation.
The cumulative value of the campaign contributions of the coal, oil and gas, nuclear, and electric utility industries in the 2000 election cycle was $69.5 million; the cumulative value of the tax breaks and subsidies for these industries in H.R. 4 is $36.4 billion. If the campaign contributions are viewed as a form of “investment” in the legislative process, the “rate of return” on this investment is an astounding 52,200%. Table 1 shows how much key energy industry sectors contributed to federal campaigns and how much they stand to benefit from H.R. 4.
To put this in perspective, the total $36.4 billion cost of the tax breaks and subsidies in H.R. 4 is equivalent to the federal taxes paid by 9,764,169 typical households in 1998.
I. THE COAL INDUSTRY’S CONTRIBUTIONS AND RETURNS
The coal mining industry gave $3.8 million in the 2000 election cycle, of which 88% went to Republicans.2 Authorizations in H.R. 4 would give the coal industry $1.1 billion in direct subsidies over the next three years, plus an additional $1.4 billion over the following seven years.3 These subsidies include grants for research and development and commercial applications of technologies for coal-fired electricity generation. In addition, the bill provides tax credits for coal-fired power generation worth an estimated $3.3 billion over ten years.4 These tax credits subsidize both investment in coal-fired generation technologies and production of electricity from coal-fired generation. In total, this amounts to $5.8 billion in federal funding for coal-fired power generation over the next ten years. The bill also has many special breaks for the coal industry. For example, it would require the government, not industry, to pay the costs for industry applications to mine coal on federal lands.5 It would also loosen planning requirements to address environmental damage from coal mining operations.6
II. THE OIL AND GAS INDUSTRY’S CONTRIBUTIONS AND RETURNS
The oil and gas industry gave $33.3 million in the 2000 election cycle, of which 78% went to Republicans. The largest tax breaks in H.R. 4 apply to oil and gas production. According to the Joint Committee on Taxation, these tax breaks are worth $12.8 billion over the next ten years.7 There are at least eleven separate provisions allowing oil and gas producers to reduce their tax payments.8 For example, the bill would allow oil and gas producers to accelerate depreciation, carry losses back for five years, avoid otherwise applicable alternative minimum tax requirements, and expense various costs. H.R. 4 further subsidizes the industry by suspending royalties for oil and gas lease sales, which is estimated to cost taxpayers around $7.4 billion.9 H.R. 4 also requires the Interior Department to reduce royalty rates for “marginal” oil and gas wells, which are defined so generously as to cover most onshore wells.10 According to the Congressional Budget Office (CBO), this provision would cost $491 million in lost royalties, based on conservative assumptions.11 The bill provides an additional $900 million for research and development and demonstration grants for technologies for ultra-deepwater mining.12 And the bill would require the federal government to reimburse the industry for spending on required environmental analyses.13 The CBO estimates that this could cost $350 million in forgone royalties over a ten-year period.14
In total, these tax breaks and other subsidies for the oil and gas industry amount to $22.0 billion over the next ten years. In addition to these direct monetary subsidies, the bill would weaken or eliminate environmental protections for federal lands to facilitate oil and gas development. H.R. 4 would open the Arctic National Wildlife Refuge (ANWR) for drilling, a key oil company objective.15 The bill also waives environmental protections that would otherwise apply to drilling in ANWR.16 H.R. 4 seriously weakens environmental protections for leasing and drilling on other federal lands as well. For example, the Forest Service will no longer be allowed to stipulate environmental protections in leases for drilling on National Forest lands if the state has not made such stipulations.17 And federal land management agencies would be largely unable to reject lease offers for drilling on public lands.18 H.R. 4 gives the oil and gas industry numerous other benefits as well. The bill would allow the Interior Department to accept royalties in kind (in barrels of oil or units of gas) from leasing federal lands.19 In the past, the federal government has lost money in converting in-kind oil and gas royalties to revenues.20 The bill also requires the Department to reimburse the industry for any transportation and processing costs associated with the in-kind royalty payments.21 The bill authorizes up to 7.5% of total federal income from oil and gas leases from fiscal years 2002-2009 to be used to fund ultra-deepwater research and demonstration projects, potentially diverting substantial funds from other spending priorities.22 In addition, the bill requires EPA to conduct several rulemakings to consider relaxing regulations that affect the refining industry.23 It also sets up an interagency task force to expedite permitting of natural gas pipelines.24
Highly specific provisions appear to benefit particular companies. For example, one provision would allow the Secretary of Interior to suspend the term of existing subsalt leases, which would benefit Houston-based Anadarko Petroleum Corporation.25 According to the Center for Responsive Politics, Anadarko contributed $448,529 during the 2000 election cycle, of which 98% was to Republicans. Anadarko also reportedly has connections to Vice President Dick Cheney and his wife.26 The tax breaks and subsidies to the oil and gas industry are not justified by economic hardships in the industry. The oil and gas industry has been particularly profitable in recent years. Three major oil and gas companies alone made $309.1 billion in revenues in 2000, which translated to $25.3 billion in profits.27 A recent front page story in the Wall Street Journal describes a “big problem” faced by the oil and gas industry -- the companies are “sitting on nearly $40 billion in cash” that they are struggling to invest.28
III. ELECTRIC UTILITIES’ CONTRIBUTIONS AND RETURNS
Electric utilities gave $18.6 million in the 2000 election cycle, of which 67% went to Republicans. Electric utilities would receive several specific tax breaks under H.R. 4, as well as benefitting from many of the subsidies and tax breaks identified in this report for the coal, oil and gas, and nuclear industries. For example, changes to tax laws governing bond issuance would help utilities finance electricity production and cost the Treasury $2.5 billion over ten years.29 Other provisions relating to sales of electricity transmission lines would cost $2.9 billion over the next five years.30 These provisions would change the tax treatment of utilities’ sales of transmission properties under electricity restructuring policies. Special rules for electric cooperatives would cost $179 million over ten years.31 And a particular tax exemption for governmental utilities purchasing natural gas would cost $827 million over ten years.32 In total, this amounts to $5.9 billion for electric utilities over ten years.
IV. THE NUCLEAR INDUSTRY’S CONTRIBUTIONS AND RETURNS
The nuclear industry gave more than $13.8 million to federal candidates and committees in the 2000 election cycle, of which more than two-thirds went to Republicans. H.R. 4 gives tax breaks for nuclear power worth $1.9 billion over the next ten years.33 It also provides numerous subsidies for nuclear energy, totaling over $633 million over the next three years, and over $100 million more in later years.34 These provisions would subsidize research and demonstration projects in areas such as uranium mining (through in situ leaching), uranium conversion operations, fuel recycling, plant optimization, and nuclear technologies. In total, H.R. 4 provides almost $1 billion for nuclear power in the next three years alone, and $2.7 billion over the next ten years. The bill also moves the nuclear waste fund off-budget, which the nuclear industry strongly supports.
V. AUTO MANUFACTURERS’ CONTRIBUTIONS AND RETURNS
The automotive manufacturing industry gave $2.2 million in the 2000 election cycle, of which 69% went to Republicans. The most significant aspect of H.R. 4 regarding motor vehicles is what the bill does not do. In the face of national concern over gas prices and our dependence on oil imports, H.R. 4 does not require any meaningful improvement in motor vehicle fuel efficiency, which is regulated under the Corporate Average Fuel Economy (CAFE) standards. The bill contains a requirement to reduce the amount of gasoline that SUVs and trucks would otherwise use over a six-year period by five billion gallons.35 Although this figure sounds impressive, it represents only 0.2% of projected petroleum consumption. Moreover, the provision appears to weaken existing requirements for the National Highway Traffic Safety Administration to mandate more stringent reductions. When coupled with the bill’s extension of a loophole for vehicles that could be run on ethanol (but almost never are), H.R. 4 will reduce overall motor vehicle fuel economy.36
The bill provides numerous other breaks for the auto manufacturers. For example, several provisions to increase use of alternative fuels cover dual-fuel vehicles, rather than just dedicated alternative fuel vehicles. This helps auto manufacturers exploit the CAFE loophole for vehicles that can use alternative fuels, but do not do so. These provisions include an exemption allowing dual fuel vehicles to use HOV lanes and federal fleet acquisition requirements.37
2 Unless otherwise indicated, all data on industry contributions are from the Center for Responsive Politics (on line at http://www.opensecrets.org/industries/index.asp).
3 §§ 2401, 5005.
4 §§ 3117, 3118. Staff of the Joint Committee on Taxation, Estimated Revenue Effects of a Chairman's Amendment in the Nature of a Substitute to the “Energy Tax Policy Act Of 2001” Scheduled for Markup by the Committee on Ways and Means on July 18, 2001, 107 th Cong. (July 18, 2001) (JCX-62-01) (hereinafter “Joint Committee on Taxation, Staff Report (July 18, 2001)”).
5 § 6701.
6 § 6704.
7 Joint Committee on Taxation, Staff Report (July 18, 2001).
8 §§ 3302-3310, 3202-3206.
9 § 6202. This estimate was based on a slightly different version of this provision contained in H.R. 2436 as reported by the House Committee on Resources. See House Committee on Resources, Minority Staff, Democratic Analysis of the Resources Committee Republican Energy Bill “Energy Security Act” (July 10, 2001).
10 § 6233; House Committee on Resources, Additional Dissenting Views on H.R. 2436 Filed by Rep. Ron Kind and Rep. Nick Rahall, 107 th Cong. (July 20, 2001) (available on line at http://www.house.gov/apps/list/hearing/ii00_democrats/dissentingvwsnjrkind.html).
11 Congressional Budget Office, Cost Estimate for H.R. 2436 (July 27, 2001). 12 § 2450. The $900 million authorized to be appropriated for the “Ultra-Deepwater and Unconventional Gas Research Fund” is to be considered a loan from the Treasury, to be repaid through royalties, if any are received. However, any such royalties would have gone to the federal government in any event, so there does not appear to be any net repayment.
13 § 6234.
14 Congressional Budget Office, Cost Estimate for H.R. 2436 (July 27, 2001).
15 §§ 6501-6512.
16 §§ 6503, 6508.
17 § 6223.
18 § 6223.
19 § 6232.
20 Congressional Budget Office, Cost Estimate for H.R. 2436 (July 27, 2001); House Committee on Resources, Additional Dissenting Views on H.R. 2436 Filed by Rep. Ron Kind and Rep. Nick Rahall, 107 th Cong. (July 20, 2001) (available on line at http://www.house.gov/apps/list/hearing/ii00_democrats/dissentingvwsnjrkind.html).
21 § 6232.
22 § 2450.
23 §§ 601-603.
24 § 6104.
25 § 6231. House Committee on Resources, Dissenting Views on H.R. 2436, 107 th Cong. 26 Bush Energy Bill Has One Big Winner, Boston Globe (July 14, 2001) (available on line at http://www.boston.com/dailyglobe2/195/nation/ Bush_energy_bill_has_one_big_winner+.shtml).
27 See Fortune.com (available on line at http://www.fortune.com).
28 Major Oil Companies Struggle to Spend Huge Hoards of Cash, Wall Street Journal (July 30, 2001).
29 § 3207. Joint Committee on Taxation, Staff Report (July 18, 2001).
30 §§ 3208, 3209. Joint Committee on Taxation, Staff Report (July 18, 2001).
31 § 3211. Joint Committee on Taxation, Staff Report (July 18, 2001).
32 § 3213. Joint Committee on Taxation, Staff Report (July 18, 2001).
33 § 3210. Joint Committee on Taxation, Staff Report (July 18, 2001).
34 §§ 306, 308, 2304, 2344.
35 § 201.
36 § 203. See Rep. Henry A. Waxman, Analysis of the Burr Amendment to the Corporate Average Fuel Economy (CAFE) Law (July 19, 2001).
On August 17, 2001, GAO issued a statutory report to the Congress, President Bush, Vice President Cheney, and other executive branch officials concerning GAO’s efforts to obtain access to certain information in connection with the National Energy Policy Development Group. On September 6, GAO received a limited amount of information from the Vice President’s office in response to the statutory report. The information received is clearly inadequate in light of GAO’s request and GAO has not received a certification letter from the President or the Director of the Office of Management and Budget in connection with the balance of the information requested.
According to Comptroller General of the United States David M. Walker, “This is a very serious matter with significant potential implications for GAO, the Congress and the American people. It involves several fundamental good government principles, including the right of the Congress to oversee the executive branch, and the need for transparency and accountability in connection with the development and execution of federal government policies that can affect the lives of every American. We are finalizing our discussions with key Congressional leaders and are preparing for possible litigation.”
The Freedom of Information Act entitles you to request any record maintained by a federal Executive branch agency. The agency must release the requested material unless it falls into one of nine exempt categories, such as "national security," "privacy," "confidential source" and the like, in which case the agency may but is not compelled to refuse to disclose the records. This kit contains all the materials needed to make FOIA requests for records on an individual, an organization or on a particular sunject matter or event.
Fund for Open Information and Accountability, Inc. P.O. BOX 02 2397, Brooklyn, NY 11202-0050 (212) 477-3188
INSTRUCTIONS HOW TO MAKE A COMPLETE REQUEST
Step 1: Select and make copies of the sample letter. Fill in the blanks in the body of the letter. Read the directions printed to the right margin of the letter in conjunction with the following instructions:
For individual files: Insert the person's full name in the first blank space and any variations in spelling, nicknames, stage names, marriage names, titles and the like in the second space. Unlike other requests, the signatures of an individual requesting her/his own file must be notarized.
For organizational files: In the first blank space insert the full and formal name of the organization whose files you are requesting. In the second blank space insert any other names, acronyms or shortened forms by which the organization is or has ever been known or referred to by itself or others. If some of the organization's work is conducted by sub-groups such as clubs, committees, special programs or through coalitions known by other names, these should be listed. There is no need to notarize signature for organizational requests.
For subject matter or event files: In the first blank space state the formal title of the subject matter or event including relevant dates and locations. In the second blank space provide the names of individuals or group sponsors or participants and/or any other information that would assist the agency in locating the material you are requesting.
Step 2: The completed sample letter may be removed, photocopied and mailed as is or retyped on your own stationary. Be sure to keep a copy of each letter.
Step 3: Addressing the letters: Consult list of agency addresses on page 7 and 8 of this kit. FBI: A complete request requires a minimum of two letters. Send one letter to FBI Headquarters and separate letters to each FBI field office nearest the location of the individual, the organization or the subject matter/event. Consider the location of residences, schools, work, and other activities. INS: Send a request letter to each district office nearest the location of the individual, the organization or the subject matter/event. Address each letter to the FOIA/PA office of the appropriate agency. Be sure to mark clearly on the envelope: Attention FOIA Request.
In 1987 a new fee structure went into effect. Each agency has new fee regulations for search and review time and for duplication of released documents. Commercial requesters must pay for search and review time and for duplication costs. News Media representatives and Educational and Scientific Institutions whose purpose is scholarly or scientific research pay for duplication only. Public Interest groups who can qualify as press, educational, or scientific institutions will be charged duplication costs only. All other non-commercial requesters are entitled to up to 100 pages of free copying and up to 2 hours of free search time. Requesters will have to pay fees for work that extends beyond those limits unless they qualify for a fee waiver or reduction (see below). No fee may be charged if the cost of collection exceeds the fee. Advanced payment may not be demanded unless a requester has previously failed to pay on time or the fee exceeds $250.
You will notice that the sample letter includes a request for a fee waiver with instructions for the agency to refer to an attached sheet. Fees for all non-commercial requesters, beyond the 2 hours/100 page/automatic waiver described above, may be waived or reduced if the disclosure of the information is: in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commericial interest of the requester. You should always request a waiver or fees if you believe the information you are seeking will benefit the public. Read the fee waiver worksheet for non-commercial users included in this kit on page 5 for help in composing a request for a fee waiver. If your request for a waiver is denied, you should appeal that denial, citing the ways in which your request meets the standards set in the attached fact sheet.
HOW TO MAKE SURE YOU GET EVERYTHING YOU ARE ENTITLED TO. . . AND WHAT TO DO IF YOU DON'T
After each agency has searched and processed your request, you will receive a letter that announces the outcome, encloses the released documents, if any, and explains where to direct an appeal if any material has been withheld. There are four possible outcomes:
1. Request granted in full: This occurs very infrequently. If the response indicates that the agency has released all records pertinent to your request, with no exclusions or withholdings, you will receive the requested documents with an agency cover letter, or if bulky, the documents may be mailed under separate cover.
Next step: Check documents for completeness (see instructions below) and make an administrative appeal if you find a discrepancy between your own analysis and that of the agency (see instructions below).
2. Request granted in part and denied in part: This response indicates that the agency is releasing some material but has withheld some documents entirely or excized some passages from the documents released. The released documents may be enclosed or, if bulky, mailed under separate cover.
Next step: Check documents for completeness (see instructions below) and make an administrative appeal of denials or incompleteness (see instructions below).
3. Request denied in full: This response and the denied part response indicate that the agency is asserting that material in its files pertaining to your request falls under one of the nine FOIA exemptions. These are categories of information that the agency may, at its discretion, refuse to release.
Next step: Make an administrative appeal (see instructions below). Since FOIA exemptions are not mandatory, even a complete denial of your request can and should be appealed.
4. No records: This response will state that a search of the agency's files indicates that it has no records corresponding to those you requested. Next step: Check your original request to be sure you have not overlooked anything. If you receive documents from other agencies, review them for indications that there is material in the files of the agency claiming it has none. For example, look for correspondence, or references to correspondence, to or from that agency. If you determine that there are reasonable grounds, file an administrative appeal (see instructions below).
HOW TO CHECK DOCUMENTS FOR COMPLETENESS
Step 1: Before reading the documents, turn them over and number the back of each page sequentially. The packet may contain documents from the agency's headquarters as well as several field office files. Separate the documents into their respective office packets. Each of these offices will have assigned the investigation a separate file number. Try to find the numbering system. Usually the lower righthand corner of the first page carries a hand-written file and document number. For instance, an FBI document might be marked "100-7142-22." This would indicate that it is the 22nd document in the 7142nd file in the 100 classification. As you inspect the documents, make a list of these file numbers and which office they represent. In this way you will be able to determine which office created and which office received the document you have in your hand. Often there is a block stamp affixed with the name of the office from whose files this copy was retrieved. The "To/From" heading on a document may also give you corresponding file numbers and will help you puzzle out the origin of the document. When you have finally identified each document's file and serial number and separated the documents into their proper office batches, make a list of all the serial numbers in each batch to see if there are any missing numbers. If there are missing serial numbers and some documents have been withheld, try to determine if the missing numbers might reasonably correspond to the withheld documents. If they don't, the release may be incomplete and an administrative appeal should be made.
Step 2: Read all the documents released to you. Keep a list of all documents referred to in the text, including letters, memos, teletypes, reports, etc. Each of these "referred to" documents should turn up in the packet released to you. If any are not in the packet, it is possible that they are among the documents withheld and a direct inquiry should be made. In an administrative appeal, ask that each of these "referred to" documents be produced or that the agency state plainly that they are among those withheld. List each "referred to" document separately. The totals of unproduced vs. witheld must be within reason; that is, if the total number of unproduced documents you find referred to in the text of the documents produced exceeds the total number of documents withheld, the agency cannot claim that all the "referred to" documents are accounted for by the withheld category. You will soon get the hang of making logical conclusions from discrepancies in totals and missing document numbers.
Another thing to look for when reading the released documents is the names of persons or agencies to whom the document has been disseminated. The lower left-hand corner is a common location for the typed list of agencies or offices to whom the document has been directed. In addition, there may be additional distribution recorded by hand, there or elsewhere, on the cover page. There are published glossaries for some agencies that will help in deciphering these notations when they are not clear. Contact FOIA, Inc. if you need assistance in deciphering the text. Finally, any other file numbers that appear on the document should be noted, particularly if the subject of the file is of interest and is one you have not requested. You may want to make an additional request for some of these files.
HOW TO MAKE AN ADMINISTRATIVE APPEAL
Under the FOIA, a dissatisfied requester has the right of administrative appeal. The name and address of the proper appeal office will be given to you by each agency in its final response letter. This kit contains a sample appeal letter with suggestions for adapting it to various circumstances. However, you need not make such an elaborate appeal; in fact, you need not offer any reasons at all but rather simply write a letter to the appeals unit stating that "This letter constitutes an appeal of the agency's decision." Of course, if you have identified some real discrepancies, you should set them forth fully (for example see Step 2 under "How to Check Documents for Completeness"), but even if you have not found any, you may simply ask that the release be reviewed. If you are still dissatisfied after the administrative appeal process, the FOIA gives you the right to bring a lawsuit in federal district court.
MONITORING THE PROGRESS OF YOUR REQUEST
You should receive a letter from each agency within 10 days stating that your request has been received and is being processed. You may be asked to be patient since requests are being handled on a first come first served basis. The best strategy is to be "reasonably" patient, but there is no reason to sit complacently and wait for an interminable period of time. A good strategy is to telephone the FOIA office in each agency after about a month if you have received nothing of substance. Ask for a progress report. Note the name of the person you speak to and what they say. Continue to call every 4 to 6 weeks.
Good record keeping helps avoid time-consuming and frustrating confusion. A looseleaf notebook with a section devoted to each request simplifies this task. At the beginning of the request process, sometimes it is difficult to foresee what course of action you will want to take in the future. Keep copies of all correspondence to and from each agency. They can be inserted between the notes on phone calls so that all relevant material will be at hand for future use, including phone consultations, correspondence, newspaper articles, preparation for media appearances, congressional testimony or litigation.
<2> FOIA Application (all agencies)
[NOTE: All the text in braces  is for your information. Do NOT include in request] [NOTE: Start by photocopying several copies of this letter or retype if you prefer]
SAMPLE REQUEST LETTER FOR ALL AGENCIES
Date: O FBI Headquarters To: FOIA/ PA Unit O FBI Field Office: O Other Agency: [Check box for appropriate agency] This is a noncommerical request under the Freedom of Information and Privacy Acts. I have attached a sheet setting out my application for a fee waiver of any fees in excess of those which are provided free because of my category.
My category for fee and fee waiver purposes is (check one): O request for personal file; no search fee and 100 free pages. O journalist, academic or scientist; no search fee and 100 free pages. O other non-commerical requester (group or person); 2 hours free search and 100 free pages.
I request a complete and thorough search of all filing systems and locations for all records maintained by your agency pertaining to and/or captioned:
[check appropriate box]
____________________________________________________________ ____________________________________________________________ ____________________________________________________________
including, without limitation, files and documents captioned, or whose captions include
[describe records desired and/or insert full and formal name]
____________________________________________________________ ____________________________________________________________ ____________________________________________________________
This request specifically includes where appropriate "main" files and "see references," including but not limited to numbered and lettered sub files and control files. I also request a search of the Electronic Surveillance (ELSUR) Index, or any similar technique for locating records of electronic surveillance and the COINTELPRO Index. I request that all records be produced with the administrative pages. I wish to be sent copies of "see reference" cards, abstracts, search slips, including search slips used to process this request, file covers, multiple copies of the same documents if they appear in a file, tapes of any electronic surveillance, photographs, and logs of physical surveillance (FISUR). Please place missing documents on "special locate."
I wish to make it clear that I want all records in your office "identifiable with my request," even though reports on those records have been sent to Headquarters and even though there may be duplication between the two sets of files. I do not want just "interim" documents. I want all documents as they appear in the "main" files and "see references" of all units of your agency.
If documents are denied in whole or in part, please specify which exemption(s) is(are) claimed for each passage or whole document denied. Give the number of pages in each document and the total number of pages pertaining to this request and the dates of documents withheld. I request that excised material be "blacked out" rather than "whited out" or cut out and that the remaining non-exempt portions of documents be released as provided under the Freedom of Information Act. Please send a memo (with a copy or copies to me) to the appropriate unit(s) in your office to assure that no records related to this request are destroyed. Please advise of any destruction of records and include the date of and authority for such destruction. As I expect to appeal any denials, please specify the office and address to which an appeal should be directed.
I can be reached at the phone listed below. Please call rather than write if there are any questions or if you need additional information from me. I expect a response to this request within ten (10) working days, as provided for in the Freedom of Information Act.
(Signed)____________________________________________ Name (print or type):_______________________________
Telephone:_________________Social Security number (optional): _______
(for personal files) (for organization files) Date of Birth:___________________Date of founding: _______________
Place of birth:___________________Place of founding: ______________
Address of organization:___________________________________ ___________________________________________________________ ___________________________________________________________
[MARK CLEARLY ON ENVELOPE: FOI/PA REQUEST]
<3> FOIA Fee Waiver
Fee Waiver Worksheet for Non-Commercial Requesters
All non-commercial requesters are entitled to apply for a fee waiver for charges in excess of those which are provided free because of requester's category. Following amendments to the FOIA in October 1986, the Justice Department issued a memo outlining six criteria to be used by agencies in determining whether or not to grant fee waivers. Many Congresspeople dispute the memo's legality, pointing out its invitation to subjective judgements, and its proclivity to intimidate requesters. Nevertheless, until the six criteria are eliminated, either by Congress or court decisions, requesters will have to address them in order to qualify for a fee waiver. To apply for a fee waiver, attach a separate sheet of paper to your request letter explaining in narrative form how your request satisfies each of the following six criteria. (All highlighted phrases in the following text are taken directly from the Justice Department memo):
(1) Explain how the records you are requesting are likely to shed light on the operations or activities of the government. (2) Describe how the records you are requesting will contribute to the understanding of government operations or activities. If the information being requested is not already in the public domain bring this fact to the agency's attention. (3)a. Explain to the agency how the public will ultimately benefit from the information you are requesting. Legislative history and recent case law indicate that the "public" is not limited to U.S. public nor must it be the "public at-large." For example, Representatives English and Kindness jointly stated during recent Congressional debate, "Public understanding is enhanced when information is disclosed to the subset of the public most interested, concerned or affected by a particular action or matter."
Furthermore, District Court Judge Harold Greene in a 1987 opinion involving a request by a Canadian newspaper said, "There is no requirement in the [FOIA] statute that news media seeking fee waivers [must] serve the American public exclusively, or even tangentially ... an FBI official does not have the authority to amend the law of the United States by restricting it beyond its plain terms."* In other words, the public you seek to educate does not have to reside in the United States, nor is the size of that public relevant to your entitlement to a fee waiver.
(3)b. Explain to the agency your qualifications (educational, work experience, etc.) for understanding the requested information and outline your ability and intention to disseminate the information once it has been obtained. You might want to cite any of the following activities in order to demonstrate your ability and intention to disseminate information to the public: writing newspaper or scholarly articles, writing books, granting interviews, public speaking engagements, preparing Congressional testimony, producing pamphlets, videos, film, radio programs, etc.
(4) The Justice Department memo stipulates that the contribution to public understanding must be "significant." What constitutes a "significant" contribution is clearly susceptible to subjective interpretation. However, we suggest that you make reference to current news stories, efforts to correct the historical record or expose government or corporate fraud or threats to public health and safety. Broadly speaking, any information that would enable the public to hold the government accountable for any of its operations or activities can be persuasively argued to be a "significant" contribution to public understanding.
(5) and (6) Explain to the agency (if it is the case) that any commercial interest that will be furthered by the requested records is not the primary interest when compared to the public interest that will be served. For example, if the information is requested pursuant to the publication of a book, you should explain (if it is the case) that this book is not destined to become a bestseller because of topic, publisher, or anticipated audience, etc.
News media representatives, scholars or scientists, should make requests for documents and fee waivers on the appropriate institutional letterhead. Similarly, requests for organizational files should be made on the appropriate letterhead. You have a right to file an administrative appeal if you receive an adverse decision regarding either your fee category or fee waiver request. The letter containing the adverse decision will tell you to whom you should direct the appeal. * Joint statement by Reps. English and Kindness, Congressional Record, H- 9464, October 8, 1986; Judge Greene's opinion in Southam News v. INS. (Civ. No. 85-2721, D.D.C., November 9, 1987). <4> FOIA Appeal
SAMPLE ADMINISTRATIVE APPEAL LETTER
Date: To: FOIA/PA Appeals Office RE: Request number [Add this if the agency has given your request a number] This is an appeal pursuant to subsection (a)(6) of the Freedom of Information Act as amended (5 U.S.C. 552). On [date] I received a letter from [name of official] of your agency denying my request for [describe briefly the information your are after]. This reply indicated that an appeal letter could be sent to you. I am enclosing a copy of my exchange of correspondence with your agency so that you can see exactly what files I have requested and the insubstantial grounds on which my request has been denied.
[Insert following paragraph if the agency has withheld all or nearly all the material which has been requested]
You will note that your agency has withheld the entire (or nearly entire) document that I requested. Since the FOIA provides that "any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt," I believe that your agency has not complied with the FOIA. I believe that there must be (additional) segregable portions which do not fall within the FOIA exemptions and which must be released.
[Insert following paragraph if the agency has used the (b)(1) exemption for national security purposes to withhold information]
Your agency has used the (b)(1) exemption to withhold information. [I question whether files relating to events that took place over twenty years ago could realistically harm the national security.] [Because I am familiar with my own activities during the period in question, and know that none of these activities in any way posed a significant threat to the national security, I question the designation of my files or portions of my file as classified and exempt from disclosure because of national security considerations.]
[Sample optional arguments to be used if the exemption which is claimed does not seem to make sense; you should cite as many specific instances as you care to of items withheld from the documents that you have received. We provide two examples which you might want to adapt to your own case.]
"On the memo dated______the second paragraph withheld under the (b)(1) exemption appears to be describing a conversation at an open meeting. If this is the case, it is impossible that the substance of this conversation could be properly classified." Or, "The memo dated____ refers to a meeting which I attended, but a substantial portion is deleted because of the (b)(6) and (b)(7)(c) exemptions for unwarranted invasions of personal privacy. Since I already know who attended this meeting, no privacy interest is served by the withholding."
I trust that upon examination of my request, you will conclude that the records I have requested are not properly covered by exemption(s)____ [insert the exemption(s) which the agency's denial letter claimed applied to your request] of the amended FOIA, and that you will overrule the decision to withhold the information.
[Insert following paragraph if an itemized inventory was not supplied by the agency]
If you choose to continue to withhold some or all of the material which was denied in my initial request to your agency, I ask that you give me an index of such material, together with the justification for the denial of each item which is still withheld. As provided in the Freedom of Information Act, I will expect to receive a reply to this adminstrative appeal letter within twenty (20) working days. If you deny this appeal and do not adequately explain why the material withheld is properly exempt, I intend to initiate a lawsuit to compel its disclosure.
[You can say that you intend to sue if that is your present inclination even though you may ultimately decide not to file suit.]
[MARK CLEARLY ON ENVELOPE: ATTENTION: FREEDOM OF INFORMATION APPEALS]
<5> FOIA Addresses of selected Federal Agencies
FUND FOR OPEN INFORMATION AND ACCOUNTABILITY, INC. P.O. BOX O2
2397, BROOKLYN, NY 11202-0050