FREEDOM OF INFORMATION ACT REQUEST

November 21, 2022

Mark Bittner
Department of the Treasury
Director, FOIA & Transparency
1500 Pennsylvania Ave., N.W.
Washington, DC 20220

BY EMAIL: foiapl@[Link]

Re: FOIA Request - Certain work-related GMail correspondence

Dear Mr. Bittner or Records Officer:

On behalf of Energy Policy Advocates, a non-profit public policy institute organized

under the laws of Washington state, pursuant to the Freedom of Information Act (FOIA), 5

U.S.C. § 552 et seq., please provide copies of all electronic correspondence, and any

accompanying information (e.g., metadata, requiring native format, and any attachments, dated

from April 1, 2021 through November 22, 2022, for a) Secretary Janet Yellen, b) Climate

Counselor John E. Morton, and/or c) Didem Nisanci, that:

1) was sent to or from or copying their Treasury email account(s) that was also sent to or

from (e.g., forwarded to or between accounts) their Gmail account; and that which

2) was otherwise sent to or from or copies their GMail account, i.e., was not to or from their

Treasury account(s) but which also includes, anywhere: i) Treasury, ii) climate risk, iii)

TCFD, iv) ESG, v) climate-related, vi) social cost of carbon, vii) @[Link], and/or

viii) Schapiro (the latter two terms include in, e.g., mlschapiro@[Link]).

The above terms are not case sensitive.

correspond on Treasury-related matters and, by above the search parameters, the requested

records are inherently, presumptively work-related and thereby covered by FOIA.

We request entire “threads” of which any responsive electronic correspondence is a part,

regardless whether any portion falls outside of the above time parameter.

To narrow this request, please consider as non-responsive electronic correspondence

that merely receives newsletters or press summaries or ‘clippings’, such as news services or

stories or opinion pieces, from the original source (e.g., Politico, New York Times).

Regarding the emails sent to or from the Treasury accounts (item “1”), Energy Policy

Advocates requests records on your system, e.g., its backend logs, and does not seek only those

records which survive on an employee’s own machine or account.

We do not demand your office produce requested information in any particular format,

instead we request records in their native form, with specific reference to the U.S. Securities

and Exchange Commission Data Delivery Standards. The covered information we seek is

electronic information, this includes electronic records, and other public information.

To quote the SEC Data Delivery Standards, “Electronic files must be produced in their

native format, i.e. the format in which they are ordinarily used and maintained during the normal

course of business. For example, an MS Excel file must be produced as an MS Excel file rather

than an image of a spreadsheet. (Note: An Adobe PDF file is not considered a native file unless

the document was initially created as a PDF.)” (emphases in original).

In many native-format productions, certain public information remains contained in the

record (e.g., metadata). Under the same standards, to ensure production of all information

requested, if your production will be de-duplicated it is vital that you 1) preserve any unique
metadata associated with the duplicate files, for example, custodian name, and, 2) make that

unique metadata part of your production.

Native file productions may be produced without load files. However, native file

productions must maintain the integrity of the original meta data, and must be produced as they

are maintained in the normal course of business and organized by custodian-named file folders.

A separate folder should be provided for each custodian.

In the event that necessity requires your office to produce a PDF file, due to your normal

program for redacting certain information and such that native files cannot be produced as they

are maintained in the normal course of business, in order to provide all requested information

each PDF file should be produced in separate folders named by the custodian, and accompanied

by a load file to ensure the requested information appropriate for that discrete record is

associated with that record. The required fields and format of the data to be provided within the

load file can be found in Addendum A of the above-cited SEC Data Standards. All produced

PDFs must be text searchable.

Request for Fee Waiver

We request the Department of the Treasury waive or substantially reduce any fees associated

with this request. Our request for fee waiver is in the alternative, first for reasons of significant

public interest, and second, on the basis of the Energy Policy Advocates’ status as a media outlet.

We do not seek the information for a commercial purpose. Energy Policy Advocates is organized and

recognized by the Internal Revenue Service as a 501(c)3 educational organization. It actively publishes

and broadly disseminates public records pertaining to energy and environmental policymaking. The

requester has no commercial interest possible in these records.

The below clearly demonstrates that:

Requester is a non-profit classified as such by the Internal Revenue Service.

Requester does not seek these records for a commercial purpose and has no

commercial interest possible in these records.

1. The Requester intends to broadly disseminate the information requested.

The Requester has both the intent and the ability to convey any information obtained

through this request to the public. Energy Policy Advocates publishes its finding regularly through

the organization’s website, [Link]. This work is frequently cited in newspapers and

trade and political publications. 1 Requester intends to broadly disseminate public information

obtained under this FOIA as it has other information relevant to its mission and work.

2. Disclosure is “likely to contribute” to an understanding of specific government operations

or activities because the releasable material will be meaningfully informative in relation

to the subject matter of the request.

The requested records, if they exist, pertain to Treasury working as part of the current

administration’s “whole of government” approach to imposing a “climate” agenda through

executive action, which is not only of major media, public and policy interest but occupies a

substantial part of all three named officials’ official time. Any records responsive to this request

therefore are likely to have an informative value and are “likely to contribute to an understanding

of Federal government operations or activities”.

1
See, e.g., recent coverage at Editorial, Wall Street Journal, “Biden’s ‘BackDoor’ Climate
Plan,” March 17, 2021, [Link]
11616020338, and Stuart Parker, “Conservative Group Says States’ Ozone Suit ‘Trojan
Horse’ for GHG Limits,” Inside EPA, February 24, 2021.
3. The disclosure will contribute to the understanding of the public at large, as opposed to

merely that of the requester or a narrow segment of interested persons.

Energy Policy Advocates is dedicated to and has a documented record of promoting the

public interest, advocating sensible policies to protect human health and the environment, broadly

disseminating information relevant to the policy issues on which its experts work. With a

demonstrated interest and record in the relevant policy debates and expertise in the subject of

energy- and environment-related regulatory policies, Energy Policy Advocates 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.”

4. The disclosure will contribute “significantly” to public understanding of government

operations or activities.

The Requester repeats and incorporates here by reference the arguments above from the

discussion of how disclosure is “likely to contribute” to an understanding of specific government

operations or activities.

The Requester has stated “with reasonable specificity that its request pertains to operations of the

government,” and that it intends to broadly disseminate responsive records. Therefore, Energy Policy

Advocates first seeks waiver of any fees under FOIA on the above significant public interest basis.

Disclosure of records responsive to this request will contribute “significantly” to public understanding

of government operations or activities. 5 U.S.C. § 552(a) (4)(A)(iii) (“Documents shall be furnished

without any charge...if 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 government and is not

primarily in the commercial interest of the requester”).

In the alternative, Energy Policy Advocates requests a waiver or reduction of fees as a

representative of the news media. The provisions for determining whether a requesting party is a

representative of the news media, and the “significant public interest” provision, are not mutually

exclusive. As Energy Policy Advocates is a non-commercial requester, it is entitled to liberal

construction of the fee waiver standards. 5 U.S.C.S. § 552(a)(4)(A)(iii), Perkins v. U.S. Department of

Veterans Affairs, 754 [Link].2d. 1 (D.D.C. 2010). Alternately and only in the event the Department of

the Treasury refuses to waive our fees under the “significant public interest” test, which Requester

would then appeal while requesting the Department of the Treasury proceed with processing on the

grounds that Energy Policy Advocates is a media organization, a designation the federal government has

acknowledged for the purposes of FOIA. 2 Requester asks for a waiver or limitation of processing fees

pursuant to 5 U.S.C. § 552(a)(4)(A)(ii) (“fees shall be limited to reasonable standard charges for

document duplication when records are not sought for commercial use and the request is made by.... a

representative of the news media…”).

The Department of the Treasury must address both of these requests for fee waiver

in the event it denies one; failure to do so is prima facie arbitrary and capricious.

Energy Policy Advocates looks forward to your response.

Rob Schilling
Executive Director
Energy Policy Advocates
Schilling@[Link]

2
See, e.g., Securities & Exchange Commission Requests No. 21-00769-FOIA, No. 21-01234- FOIA, 22-
00557-FOIA, 22-01573-FOIA; Department of the Interior Request No. DOI-OS- 2021-003335.