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FOIA Productions: An Incomplete Story

Like other watchdog groups, perhaps more actively than most, CEI has for years sought release of public records, to help inform the public who owns them of important details related to the creation and implementation of major policy proposals — as well as policymakers and the courts who should be guided by such information.

Specifically, the following documents have been produced in response to Freedom of Information Act (FOIA) requests seeking to gain information about how the administration has worked with outside groups, like environmental groups, to pursue its climate agenda. Many of these documents were improperly redacted and should be subject to further review by the Trump administration as they rightfully belong to Americans as public records.  Many appear on their face to be important to understanding the genesis and propriety of major EPA rules, and the Paris Climate Treaty. Most, if not all, should plainly have been released under FOIA and President Obama’s much-touted but disregarded “transparency memos.”

CEI was heartened by and sought to take full advantage of President Obama’s much-ballyhooed transparency-oriented Memorandum to the Heads of All Departments and Agencies upon taking office, which ordered federal agencies to release requested public records unless prohibited from doing so. As was proved time and again in numerous court cases, the bureaucracy broadly disregarded this FOIA Memo. The (b)(5) “deliberative process” exemption, “which has come to be known as the “withhold it because you want to” exemption, was particularly abused.[1]

This and the reality that withholdings in FOIA litigation sometimes extended into multiple thousands of pages, as we saw in CEI v. EPA over “Richard Windsor” records, left requesters often without actual recourse, such as a realistic prospect of effective in camera review of withholdings begging for challenge. Other important records came to light fairly late in the Obama administration, such that now is the time to review the redacted content.

With this in mind the following inventory is a sampling of records which appear to be wrongly withheld under FOIA, and would have been released had the Obama transparency memo ever been implemented. They were obtained by CEI or groups who worked with CEI on these issues.

Any private sector CEO or lawyer landing at a business, after a hostile takeover for example, would be obligated to review records on the firm’s system relating to existing and possible litigation. Therefore, the new administration would be irresponsible not to examine the Environmental Protection Agency’s, State Department’s, Treasury Department’s and other agencies’ internal records regarding predetermination or information at odds with the relevant, regulatory records.

At minimum, these records if reviewed will inform the Trump Administration about its key policy priorities, and in turn support the necessary effort to clearly explain any regulatory reversal to the courts and American public. Congress, too, would benefit from this type of review.

Environmental Protection Agency:

  • Redacted Lisa Heinzerling and “Richard Windsor” emails (view)
  • ClimateGate withholdings (view)
  • Michael Goo and Joe Goffman withholdings relating to work with green pressure groups in developing greenhouse gas rules and use of Yahoo, Gmail and AOL accounts for EPA-related correspondence (view)
  • Withholdings arising from discovery of Gmail usage in developing “social cost of carbon” concept (view)
  • Questionable and related withholdings regarding record retention issues and Gina McCarthy’s destruction of all text messages on her government agency phone (view)
  • Other EPA withholdings of possible interest (view)

Treasury Department:

  • Records relating to CEI v. Treasury – Carbon tax documents discussing hypothetical authority, media reports, and more (view)

State Department:

  • Records relating to the Paris Climate Treaty (view)
  • Records relating to the State Department’s work with NGO lobbyist Jennifer Morgan on China (view)

Notes:

[1] U.S. House of Representatives Committee on Oversight and Government Reform, FOIA Is Broken, Staff Report 114th Congress, January 2016,, p. 10, citing National Security Archive, The Next FOIA Fight: The B(5) “Withhold It Because You Want To” Exemption, Mar. 27, 2014.