First FOIA request launched after Climategate 2.0 – this one to the US Department of Energy

It appears that the focus of this has to do with the refusal to give up station data in and the DOE’s apparent complicity in that issue as revealed in the CG2 emails in 2009 from Dr. Phil Jones at CRU.

From the Competitive Enterprise Institute (via email):

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November 30, 2011

Freedom of Information Officer

Mr. Alexander Morris

U.S. Department of Energy

1000 Independence Avenue, SW

Washington, D.C. 20585

RE:     FOIA Request – 2007 communications between Office of Science and Dr. Phil Jones

ByRegularandElectronicMail — Alexander.Morris@xxx.doe.gov

Dear Mr. Morris,

On behalf of the Competitive Enterprise Institute (CEI), a not-for-profit policy organization in Washington, DC, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552 et seq. and the relevant U.S. Department of Energy (DoE) implementing regulations, please consider the following Request.

Please provide us within twenty (20) working days copies of any and all record(s) — defined here as correspondence and any memoranda, analysis, other communications cited therein or attached — which were

1. created, received and/or held by DoE’s Office of Science, and
2. sent by or to (including as a “cc:”) a Dr. Phil Jones of the Climatic Research Unit of the University of East Anglia (typical, but likely not exclusive address: p.jones@uea.xxx), and
3. dated during the year 2007.

Background

Dr. Phil Jones, whose work has on occasion been funded in part by the U.S. taxpayer through DoE, is on record stating to parties requesting certain information things such as “Why should I make the data available to you, when your aim is to try and find something wrong with it.” (Jones in a 2004 email to researcher Warwick Hughes).

Also, in the 2009 and 2011 “ClimateGate” releases of emails many or most of which had been subject to but improperly withheld under the UK’s FOI law, we have seen Jones’s admissions of destroying correspondence in response to or anticipation of FOI requests.

Most important to the present request, in several emails recently made public Phil Jones explicitly states that the DOE informed him it is “happy about [Jones] not releasing the original [temperature] station data” to researchers requesting that particular information, which information was funded by the U.S. taxpayer through DoE.

The data at issue was also requested under a the UK’s FOI law. Jones was funded by the U.S. taxpayer. As taxpayers we have a right to learn relevant facts of apparently public employee-enabling of a scientist they fund to avoid FOI requests.

Examples of recently released correspondence supporting the public’s need for this information is found in, e.g., “ClimateGate 2011” emails that DoE offered this counsel in 2007.

In email 1577, Phil Jones says the following:

“Any work we have done in the past is done on the back of the research grants we get – and has to be well hidden. I’ve discussed this with the main funder (US Dept of Energy) in the past and they are happy about not releasing the original station data.” (July 28, 2009)

Also, he repeats this in email 1217:

“Work on the land station data has been funded by the US Dept of Energy, and I have their agreement that the data needn’t be passed on. I got this in 2007.” (May 13, 2009)

Transparency

We note the inauguralpost on the White House “blog” made immediately upon President Obama’s swearing-in to office which restated, in pertinent part, a prominent promise made when courting votes during the election campaign:

Transparency — President Obama has committed to making his administration the most open and transparent in history, and WhiteHouse.gov will play a major role in delivering on that promise. The President’s executive orders and proclamations will be published for everyone to review, and that’s just the beginning of our efforts to provide a window for all Americans into the business of the government. You can also learn about some of the senior leadership in the new administration and about the President’s policy priorities. WhiteHouse.gov, “Change has come to WhiteHouse.gov”, January 20, 2009 (12:01 p.m.), http://www.whitehouse.gov/blog/change_has_come_to_whitehouse-gov/

Scope of Request

This Request for the described records covers DoE’sOfficeofScience(particularlyincluding,butnotlimitedto,itsOfficeofBiologicalandEnvironmentalResearch,andtheClimateandEnvironmentalSciencesDivisionanditsEarthSystemModelingProgram), and the period January 1, 2007 through December 31, 2007, inclusive.

Please identify and inform us of all responsive or potentially responsive documents within the statutorily prescribed time, and the basis of any claimed exemptions or privilege and to which specific responsive or potentially responsive document(s) such objection applies. Further, please inform us of the basis of any partial denials or redactions.

Specifically, if your office takes the position that any portion of the requested records is exempt from disclosure, we request that you provide us with an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1972), with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA” pursuant to Founding Church of Scientology v. Bell, 603 F.2d 945, 959 (D.C. Cir. 1979), and “describ[ing] each document or portion thereof withheld, and for each withholding it must discuss the consequences of supplying the sought-after information.” King v. U.S. Department of Justice, 830 F.2d 210, 223-24 (D.C. Cir. 1987).

In the event that some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable, non-exempt portions of the requested records. See 5 U.S.C. §552(b). If it is your position that a document contains non-exempt segments and that those non-exempt segments are so dispersed throughout the documents as to make segregation impossible, please state what portion of the document is non-exempt and how the material is dispersed through the document. Mead Data Central v. U.S. Department of the Air Force, 455 F.2d 242, 261 (D.C. Cir. 1977). Claims of non-segregability must be made with the same detail as required for claims of exemption in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release.

Please provide copies of documents, in electronic format if you possess them as such, otherwise photocopies are acceptable. By this we mean that no delay need be incurred on the basis that the records are held in a particular format and must be transferred as we seek them as held in whatever medium or bearing whatever physical characteristics may be the case.

Request for Fee Waiver

We request your office(s) waive any fees associated with this request on the basis that CEI is a nonprofit, tax-exempt public interest organization, with formal research, educational and publication functions as part of its mission, and because release of these records will serve the public interest by contributing significantly to the public’s understanding of the controversial topics of environmental and science-related policy and specifically the ongoing debate over the transparency and credibility of taxpayer-funded science and the activities of taxpayer-funded scientists, and because such a release is not primarily in our organization’s commercial interest.

If our fee waiver request is denied we are willing to pay up to $50.00, and in the event of any appeal as appropriate and regardless of that outcome or your response to this fee waiver request we request the search and document production proceed in the interim.

As explained below and in our initial Request, this FOIA Request satisfies the factors customarily considered for waiver or reduction of fees, as well as the requirements of fee waiver under the FOIA statute – that 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 commercial interest of the requester. 5 U.S.C. § 552(a)(4)(A)(iii). 5 U.S.C. § 552(a)(4)(A)(iii), see also inter alia DOE’s implementing regulations, Title10,CodeofFederalRegulations(Section1004.9).

CEI promotes the public interest advocating sensible policies to protect human health and the environment including through education on activities of government and taxpayer-supported entities, and has routinely received fee waivers under FOIA.

CEI is a national, nonprofit organization dedicated in great part to relevant energy and environment issues with no commercial interest in obtaining the requested information. Instead, CEI intends to use the requested information to inform the public, so the public can meaningfully participate in the policymaking process related to hydrocarbon energy production and use with complete, relevant information.

1. The subject matter of the requested records must specifically concern identifiable operations or activities of the government.

The requested records relate to DoE’s process and advice given regarding obligations to disclose certain details regarding taxpayer-funded work. Pursuant to FOIA this process, related correspondence, these determinations and the policies and procedures on which they are based are unquestionably “identifiable operations or activities of the government.” The Department of Justice Freedom of Information Act Guide expressly concedes that “in most cases records possessed by federal agency will meet this threshold” of identifiable operations or activities of the government. There can be no question that this is such a case.

2. For the disclosure to be “likely to contribute” to an understanding of specific government operations or activities, the releasable material must be meaningfully informative in relation to the subject matter of the request.

The disclosure of the requested documents must have an informative value and be “likely to contribute to an understanding of Federal government operations or activities.” The Freedom of Information Act Guide makes it clear that, in the Department of Justice’s view, the “likely to contribute” determination hinges in substantial part on whether the requested documents provide information that is not already in the public domain. The requested records are “likely to contribute” to an understanding of your agency’s activities because with limited exceptions they are not otherwise in the public domain and are not accessible other than through a FOIA request.

Given current concerns about the credibility of certain taxpayer-funded research and related processes (as revealed in, inter alia, the “ClimateGate” release of emails in 2009 and 2011), this information will facilitate meaningful public understanding of the described campaign, therefore fulfilling the requirement that the documents requested be “meaningfully informative” and “likely to contribute” to an understanding of your agency’s decision-making process and the controversial issue described above.

3. The disclosure must contribute to the understanding of the public at large, as opposed to the understanding of the requester or a narrow segment of interested persons.

Under this factor, the identity and qualifications of the requester—i.e., expertise in the subject area of the request and ability and intention to disseminate the information to the public—is examined. As described in our Request, above and below, CEI has a well-established interest and expertise in the subject of taxpayer-funded science and the related regulatory policies, demonstrated through, inter alia, freedom of information requests and litigation.

More importantly, CEI unquestionably has the “specialized knowledge” and “ability and intention” to disseminate the information requested in the broad manner, and to do so in a manner that contributes to the understanding of the “public-at-large.” CEI intends to disseminate the information it receives through FOIA regarding these government operations and activities in a variety of ways, including but not limited to, analysis and distribution to the media, distribution through publication and mailing, posting on the organizations’ websites, and emailing.

As shown by the extensive public discussion following revelation of certain tactics in the “ClimateGate” releases, these records are the subject of great public interest. To deny this would be prima facie capricious.

4. The disclosure must contribute “significantly” to public understanding of government operations or activities.

With the exception of the limited ClimateGate releases which do include Phil Jones flatly stating he has corresponded with DoE and received a staffer’s blessing to withhold data, there are currently no records publicly available regarding the requested information — correspondence to and from DoE addressing this matter. Absent disclosure of the records requested, the public’s understanding will be shaped only by what we are told was a “selective” and “out of context” release of emails. Further, Jones’ admissions of having destroyed records makes release of DoE’s versions more important to the public debate.

The records requested will contribute to the public understanding of the government’s role, or their “operations and activities” associated with this critically important information. The disclosure of the requested records is also essential to public understanding of DoE decision making process, its advice to parties it funds regarding transparency, and U.S. influence in critical “climate science” efforts including but not limited to the “IPCC” process. After disclosure of these records, the public’s understanding of this process will be significantly enhanced. The requirement that disclosure must contribute “significantly” to the public understanding is therefore met.

5. The extent to which disclosure will serve the requester’s commercial interest, if any.

As already stated CEI has no commercial interest in the information sought or otherwise in the requested records. Nor does ATI have any intention to use these records in any manner that “furthers a commercial, trade, or profit interest” as those terms are commonly understood. CEI is a tax-exempt organization under sections 501(c)(3) of the Internal Revenue Code, and as such has no commercial interest. The requested records will be used for the furtherance of CEI’s mission to inform the public on matters of vital importance to the regulatory process and policies relating to energy and the environment.

6. The extent to which the identified public interest in the disclosure outweighs the requester’s commercial interest.

See answers to factors 1-5 above. Whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.” When a commercial interest is found to exist and that interest would be furthered by the requested disclosure, an agency must assess the magnitude of such interest in order to compare it to the “public interest” in disclosure. If no commercial interest exists, an assessment of that non-existent interest is not required. As noted above, ATI has no commercial interest in the requested records.

Disclosure of this information is not “primarily” in CEI’s commercial interest. On the other hand, it is clear that the disclosure of the information requested is in the public interest. It will contribute significantly to public understanding of the regulatory process as already described.

We respectfully request, because the public will be the primary beneficiary of this requested information, that DoE waive processing and copying fees pursuant to 5 U.S.C. §552(a)(4)(A). In the event that your agency denies a fee waiver, please send a written explanation for the denial. Also, please continue to produce the records as expeditiously as possible, but in any event no later than the applicable FOIA deadlines.

Sincerely,

Christopher C. Horner

CHorner@cei.org

1899 L Street NW, Suite 1200

Washington, DC 20036

202.331.2260 (O)