CAMPAIGN FOR ACCOUNTABILITY v. U.S. ENVIRONMENTAL PROTECTION AGENCY

Filing 1

COMPLAINT against U.S. ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-5407146) filed by CAMPAIGN FOR ACCOUNTABILITY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet, # 5 Summons for USAO, # 6 Summons for AG, # 7 Summons for EPA)(Creighton, Sara)

Exhibit A

February 16, 2018
VIA EMAIL: [e-mail]
Records, FOIA, and Privacy Branch
Office of Environmental Information
Environmental Protection Agency
1200 Pennsylvania Avenue NW (2822T)
Washington, D.C. 20460
Re: Freedom of Information Act Request
Dear Freedom of Information Officer:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. and the
implementing regulations of the Environmental Protection Agency (“EPA”), 40 C.F.R. Part 2,
Campaign for Accountability makes the following request for records.
Requested Records
Campaign for Accountability requests that EPA produce the following within 20 business days:
1) All records reflecting communications (including emails, email attachments, text messages,
telephone call logs, calendar invitations/entries, meeting notices, meeting agendas,
informational material, draft legislation, talking points, or other materials) between any
employee of the Office of the Administrator, including but not limited to Administrator
Pruitt, and any employee or representative of the Oklahoma Attorney General’s Office,
including but not limited to, anyone whose email address ends in “@oag.ok.gov”.
2) All records reflecting communications (including emails, email attachments, text messages,
telephone call logs, calendar invitations/entries, meeting notices, meeting agendas,
informational material, draft legislation, talking points, or other materials) between any
employee of the Office of the Administrator, including but not limited to Administrator
Pruitt, and any employee or representative of the following news organizations regarding the
Tar Creek superfund cleanup site in northeastern Oklahoma:
a) The Oklahoman aka NewsOK
b) Tulsa World
c) E&E News
d) Politico
3) All records reflecting communications (including emails, email attachments, text messages,
telephone call logs, calendar invitations/entries, meeting notices, meeting agendas,
informational material, draft legislation, talking points, or other materials) to, from, or
between any employee of the Office of the Administrator, including but not limited to
Administrator Pruitt, that contain the following search terms:
611 Pennsylvania Ave., S.E. #337  Washington, D.C. 20003  [phone]
campaignforaccountability.org

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February 16, 2018
Page 2
a)
b)
c)
d)
e)

“Tar Creek”
“LICRAT”
“State Auditor”
“Gary Jones”
“Mike Hunter”

Please provide all responsive records from July 1, 2017 to the date the search is conducted.
In addition to the records requested above, Campaign for Accountability also requests records
describing the processing of this request, including records sufficient to identify search terms
used and locations and custodians searched, and any tracking sheets used to track the processing
of this request. If your agency uses FOIA questionnaires or certifications completed by
individual custodians or components to determine whether they possess responsive materials or
to describe how they conducted searches, we also request any such records prepared in
connection with the processing of this request.
Background
By way of background, in 2011, as Oklahoma Attorney General, Mr. Pruitt asked the Oklahoma
State Auditor and Inspector to investigate certain contracting practices of the Lead-Impacted
Communities Relocation Trust (“LICRAT”), an Oklahoma state agency created to buy out
homeowners affected by a superfund cleanup site in northeastern Oklahoma. 1 In 2015, the State
Auditor asked Mr. Pruitt to release the Auditor’s report regarding LICRT. 2 Mr. Pruitt denied the
request.
In August 2017, Mr. Pruitt’s successor, Oklahoma Attorney General Mike Hunter, followed Mr.
Pruitt’s lead and again denied a request from the State Auditor to release the LICRAT audit. 3 On
November 9, 2017, CfA asked the auditor’s office for the records, following the unsuccessful
efforts of E&E News to obtain them.4 In response, the Auditor explained that he wanted to
release the records, but had been instructed not to do so by the AG’s office. CfA filed a request
for the records directly with the AG’s office, which denied the request.
On November 27, 2017, CfA filed a lawsuit in the District Court of Oklahoma County against
Oklahoma Attorney General Mike Hunter and Oklahoma State Auditor and Inspector Gary Jones
for failing to release copies of audits and documents related to corruption allegations associated
with the management of the Tar Creek Reclamation site in the state. 5

1

https://campaignforaccountability.org/work/cfa-lawsuit-against-oklahoma-officials-for-failing-to-releasedocuments-withheld-by-scott-pruitt/.
2
Id.
3
Id.
4
Id.
5
https://campaignforaccountability.org/cfa-sues-oklahoma-officials-for-failing-to-release-documents-withheld-byscott-pruitt/.

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February 16, 2018
Page 3
On January 17, 2018, the Oklahoma Attorney General’s Office filed a motion to dismiss CfA’s
lawsuit.6 A hearing is scheduled for February 23, 2018.
In addition to legal filings, several news organizations have covered the lawsuit. On December
6, Politico published a story about the audit in which Mr. Pruitt defended his refusal to release
the audit.7 On February 2, 2018, The Oklahoman published an article in which Ryan Jackson,
chief of staff at the EPA,8 also defended Pruitt’s refusal to release the audit. 9
Mr. Pruitt is now the head of the EPA where he oversees the agency’s Superfund cleanup
program. Notably, on February 10, 2018, the Tulsa World obtained a copy of a 2013 EPA
Inspector General report that concluded there were “no law violations related to the handling of a
contract to dismantle and remove buildings in the Tar Creek Superfund site.” 10
Fulfilling This Request
Campaign for Accountability seeks all responsive records regardless of format, medium, or
physical characteristics. In conducting your search, please understand the terms “record,”
“document,” and “information” in their broadest sense, to include any written, typed, recorded,
graphic, printed, or audio material of any kind. We seek records of any kind, including electronic
records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone
messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone
conversations or discussions. Our request includes any attachments to these records. No
category of material should be omitted from search, collection, and production.
Please search all records regarding agency business. You may not exclude searches of files or
emails in the personal custody of your officials, such as personal email accounts. Records of
official business conducted using unofficial systems or stored outside of official files is subject to
the Federal Records Act and FOIA. 11 It is not adequate to rely on policies and procedures
that require officials to move such information to official systems within a certain period of
time; Campaign for Accountability has a right to records contained in those files even if

6

https://campaignforaccountability.org/work/cfa-lawsuit-against-oklahoma-officials-for-failing-to-releasedocuments-withheld-by-scott-pruitt/.
7
Malcolm Burnley, The Environmental Scandal in Scott Pruitt’s Backyard, Politico, December 6, 2017, available at
https://www.politico.com/magazine/story/2017/12/06/scott-pruitt-tar-creek-oklahoma-investigation-215854.
8
https://www.epa.gov/aboutepa/epas-chief-staff.
9
Justin Wingerter, Scott Pruitt Revealed Findings of Tar Creek Investigation to Subjects of the Investigation, The
Oklahoman, February 2, 2018, available at http://newsok.com/scott-pruitt-revealed-findings-of-tar-creekinvestigation-to-subjects-of-the-investigation/article/5581922.
10
Randy Krehbiel, 2013 EPA Investigation Found no Wrong-doing by Tar Creek Trust, Tulsa World, February 10,
2018, available at http://www.tulsaworld.com/homepagelatest/epa-investigation-found-no-wrong-doing-by-tarcreek-trust/article_ae02def8-ffc0-558e-9d93-c427d2fc0c31.html.
11
See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149–50 (D.C. Cir.
2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955–56 (D.C. Cir. 2016).

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February 16, 2018
Page 4
material has not yet been moved to official systems or if officials have, through negligence
or willfulness, failed to meet their obligations.12
In addition, please note that in conducting a “reasonable search” as required by law, you must
employ the most up-to-date technologies and tools available, in addition to searches by
individual custodians likely to have responsive information. Recent technology may have
rendered DOT’s prior FOIA practices unreasonable. In light of the government-wide
requirements to manage information electronically by the end of 2016, it is no longer
reasonable to rely exclusively on custodian-driven searches. 13 Furthermore, agencies that
have adopted the National Archives and Records Agency (NARA) Capstone program, or similar
policies, now maintain emails in a form that is reasonably likely to be more complete than
individual custodians’ files. For example, a custodian may have deleted a responsive email from
his or her email program, but DOT’s archiving tools would capture that email under Capstone.
Accordingly, Campaign for Accountability insists that DOT use the most up-to-date technologies
to search for responsive information and take steps to ensure that the most complete repositories
of information are searched. Campaign for Accountability is available to work with you to craft
appropriate search terms. However, custodian searches are still required; agencies may not
have direct access to files stored in .PST files, outside of network drives, in paper format, or
in personal email accounts.
Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure,
withholding information “only if . . . disclosure would harm an interest protected by an
exemption” or “disclosure is prohibited by law.” 14 If it is your position that any portion of the
requested records is exempt from disclosure, Campaign for Accountability requests that you
provide 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 (1974). As you are aware, a Vaughn index must describe
each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as
to whether the material is actually exempt under FOIA.” 15 Moreover, the Vaughn index “must
describe each document or portion thereof withheld, and for each withholding it must discuss the
consequences of disclosing the sought-after information.”16 Further, “the withholding agency
must supply ‘a relatively detailed justification, specifically identifying the reasons why a
12

See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016)
(“The Government argues that because the agency had a policy requiring [the official] to forward all of his emails
from his [personal] account to his business email, the [personal] account only contains duplicate agency records at
best. Therefore, the Government claims that any hypothetical deletion of the [personal account] emails would still
leave a copy of those records intact in [the official’s] work email. However, policies are rarely followed to
perfection by anyone. At this stage of the case, the Court cannot assume that each and every work-related email in
the [personal] account was duplicated in [the official’s] work email account.” (citations omitted)).
13
Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28,
2011), https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidentialmemorandum-managinggovernment-records; Office of Mgmt. & Budget, Exec. Office of the President, Memorandum for the Heads of
Executive Departments & Independent Agencies, “Managing Government Records Directive,” M-12-18 (Aug. 24,
2012),
https://www.archives.gov/files/records-mgmt/m-12-18.pdf.
14
FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185).
15
Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).
16
King v. U.S. Dep’t of Justice, 830 F.2d 210, 223-24 (D.C. Cir. 1987) (emphasis in original).

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February 16, 2018
Page 5
particular exemption is relevant and correlating those claims with the particular part of a
withheld document to which they apply.’”17
In the event some portions of the requested records are properly exempt from disclosure, please
disclose any reasonably segregable non-exempt portions of the requested records. If it is your
position that a document contains non-exempt segments, but that those non-exempt segments are
so dispersed throughout the document as to make segregation impossible, please state what
portion of the document is non-exempt, and how the material is dispersed throughout the
document.18 Claims of nonsegregability must be made with the same degree of detail as required
for claims of exemptions 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.
You should institute a preservation hold on information responsive to this request.
Campaign for Accountability intends to pursue all legal avenues to enforce its right of access
under FOIA, including litigation if necessary. Accordingly, DOT is on notice that litigation is
reasonably foreseeable.
To ensure that this request is properly construed, that searches are conducted in an adequate but
efficient manner, and that extraneous costs are not incurred, Campaign for Accountability
welcomes an opportunity to discuss its request with you before you undertake your search or
incur search or duplication costs. By working together at the outset, Campaign for
Accountability and DOT can decrease the likelihood of costly and time-consuming litigation in
the future.
Where possible, please provide responsive material in electronic format by email or in PDF or
TIF format on a USB drive. Please send any responsive material being sent by mail to Campaign
for Accountability, 611 Pennsylvania Ave., SE, # 337, Washington, DC 20003.
Fee Waiver Request
In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 40 C.F.R. § 2.107(1), Campaign for
Accountability requests a waiver of fees associated with processing this request for records. The
subject of this request concerns the operations of the federal government, and the disclosures will
likely contribute to a better understanding of relevant government procedures by the general
public in a significant way. Moreover, the request is primarily and fundamentally for noncommercial purposes.
Campaign for Accountability requests a waiver of fees because disclosure of the requested
information is “in the public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government.” 19 The disclosure of information
sought under this request will document and reveal the operations of the federal government,
including to whom top administration officials are communicating with and the means used for
17

Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).
Mead Data Central, 566 F.2d at 261
19
40 C.F.R. § 2.107(l)(1), (2)(i)-(iv).
18

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February 16, 2018
Page 6
these communications. Taxpayers deserve to know whether top administration officials are using
transparent means of communication while conducting official business. Additionally, taxpayers
deserve to know if top administration officials are in contact with anyone who may be paying
them to do work that is not in the public interest.
This request is primarily and fundamentally for non-commercial purposes. 20 As a 501(c)(3)
nonprofit, Campaign for Accountability does not have a commercial purpose and the release of
the information requested is not in Campaign for Accountability’s financial interest. Campaign
for Accountability’s mission is to promote transparency in government, to educate the public
about government activities, and to ensure the accountability of government officials. Campaign
for Accountability uses the information gathered, and its analysis of it, to educate the public
through reports, press releases, or other media. 21 Accordingly, Campaign for Accountability
qualifies for a fee waiver.
Conclusion
Campaign for Accountability looks forward to working with you on this request. If our request
for a fee waiver is not granted, if you have any questions about this request, or foresee any
problems in fully releasing the requested records within FOIA’s deadlines, please contact me at
[e-mail] or [phone].
Thank you for your assistance.
Sincerely,

Daniel E. Stevens
Executive Director

20
21

40 C.F.R. § 2.107(l)(1), (3)(i)-(ii).
https://campaignforaccountability.org.