This morning I filed the following Appeal with Obama’s Treasury Department over its continued withholding of documents responsive to our Freedom of Information Act Request seeking internal discussions over administering a possible cap-and-trade scheme that the president, as a candidate, made clear was intended to cause our energy prices to “necessarily skyrocket” and “bankrupt” numerous facilities.
The message of this is not to rehash what the documents reveal, about which those media outlets willing to report have already reported, and those seeking to make go away have already tried their level best. Instead, it is to follow up on Treasury’s vows of cooperation, after which they suddenly went silent, refusing to comply with the law in any meaningful way. It is clearly still hiding what are intended to be public documents.
If the administration had, for example, merely made a nod in the direction of complying with FOIA and provided an index of documents – even a sorry specimen claiming that all that is relevant is being provided except for those parts that are not – then that would only have prejudiced, say, a court against Treasury’s interest in openness and veracity with regard to our document Request. As I told any reporter willing to listen, following the first release of redacted (and within days, unredacted) documents, would have been the case had they attempted to convince a court that these specious redactions of merely embarrassing language were permissible under FOIA. I suggested they dropped those redactions as insurance against possible litigation, as that would have been tossed on our first motion and given the court an idea of their idea of compliance.
Instead, the administration went spinning wildly about that which they did release, and otherwise are just clamming up and counting on us not pressing. If this persists they will see that they counted wrong.
September 29, 2009
DO, Assistant Director,
Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, DC 20220
RE: NOTICE OF APPEAL, FOIA Request – Communications regarding “cap-and-trade”, Treasury FOIA No. 2009-04-090
BY ELECTRONIC AND CERTIFIED MAIL
Dear Treasury FOIA Staff,
CEI hereby appeals your recent response to the above-cited Freedom of Information Act request, which in our view thoroughly violates Treasury’s obligations under the law both substantively and procedurally.
Acting under FOIA, CEI sought documents relating to Treasury’s deliberations over efforts to administer or otherwise manage elements of a potential greenhouse gas “cap-and-trade” scheme. After discussions with you, we clarified and specified our request, without substantively narrowing it. After a significant delay, Treasury responded on September 11 by producing a mere five redacted documents, which Treasury then released in unredacted (though still partially withheld) form on September 18. Your response fails any reasonable test for compliance with FOIA and constitutes an effective denial of our request.
As such, please consider this Appeal and notice of intent to sue if Treasury does not come into compliance with its legal obligations within a reasonable period of time.
CEI asserts on information and belief that Treasury is withholding numerous documents responsive to our Request, and that as such Treasury is in violation of FOIA’s requirement of identifying responsive documents. Further, Treasury is demonstrably withholding portions of those documents excerpted in its response, also in violation of FOIA.
As such, Treasury is also in violation of its obligations to also produce an index and description of those responsive documents being withheld in whole or in part, and Treasury’s basis for such withholding.
Due to these failures to comply with the FOI Act’s requirements, CEI has prepared a Complaint seeking Treasury’s immediate compliance. We intend to file this by October 15, 2009, if by then Treasury has not materially altered its failure to comply.
Please promptly provide any response including index and/or responsive documents addressed to me and/or CEI General Counsel Sam Kazman by email (CHorner@cei.org, SKazman@cei.org) and/or fax at 202.331.0640.
Christopher C. Horner, Esq.
 We note our numerous communications with Treasury’s Office of Environment and Energy from April through July 2009, including its Director’s stated contention, in a telephone conversation of April 30, 2009, that our original FOIA request covered nearly every document and email created by the Office of Environment and Energy. In order to facilitate a timely response from you, we agreed to narrow our FOIA request to accommodate your concerns. Specifically, we sought only “hypothetical or actual proposals or programs being developed or discussed by the Department of Treasury, or by other government units, which might originate out of or be managed in whole or in part by Treasury; the programs or proposals, whether international or domestic, involving ‘cap-and-trade’ schemes that deal with ‘carbon’, ‘carbon dioxide’ or ‘greenhouse gases'; received or sent by or within the Office of the Deputy Secretary for Environment and Energy since 1st August 2008″.