Rule of Three 1999-2019 (Environmental Protection Agency)

Dear Emma North-Best <requests@muckrock.com>,
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This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: (https://www.foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=EPA-2021-006383&type=request)

* Tracking Number: EPA-2021-006383
* Requester Name: Emma North-Best
* Date Submitted: 09/03/2021
* Request Status: Submitted
* Description:
To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

Copies of lists or indexes of frequently requested records under FOIA and other disclosure laws, including but not limited to those subject to the Rule of Three (see FOIA, 5 U.S.C. § 552(a)(2)(D) (2000)).

I also request copies of emails, memos and letters discussing the handling of frequently requested records that are subject to the Rule of Three, including but not limited to the removal of any such records.

You may limit this request to records generated between January 1, 1999 (or since your office's creation, whichever came later) and December 31, 2019.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Emma North-Best

Attachments:

https://cdn.muckrock.com/outbound_composer_attachments/EmmaBest/100347/Fee20category20and20search20parameters.pdf
Upload documents directly: https://www.muckrock.com/

09/08/2021
Emma North-Best
MuckRock News DEPT MR 118675
411A Highland Ave
Somerville, MA, 02144-2516

requests@muckrock.com
RE: Freedom of Information Act Request - EPA-2021-006383
Hello:
Please see attached.

Sincerely,

National FOIA Office
U.S. Environmental Protection Agency

Hello,
Please see the attachment below.
Thank you,
The National FOIA Office

Your request for Fee Waiver for the FOIA request EPA-2021-006383 has been
denied.

* Fee Waiver Original Justification:
I am a member of the news media and request classification as such. I have previously written
about the government and its activities, with some reaching over 100,000 readers in outlets such
as Gizmodo, MuckRock, Motherboard, Property of the People, Unicorn Riot, and The Outline,
among others. As such, as I have a reasonable expectation of publication and my editorial and
writing skills are well established. In addition, I discuss and comment on the files online and
make them available through non-profits such as the library Internet Archive and the journalist
non-profit MuckRock, disseminating them to a large audience. While my research is not limited
to this, a great deal of it, including this, focuses on the activities and attitudes of the government
itself. As such, it is not necessary for me to demonstrate the relevance of this particular subject in
advance.
Further, case law states that “proof of the ability to disseminate the released information to a
broad cross- section of the public is not required.” Judicial Watch, Inc. v. Dep’t of Justice, 365
F.3d 1108, 1126 (D.C. Cir. 2004); see Carney v. U.S. Dep’t of Justice, 19 F. 3d 807, 814-15 (2d
Cir. 1994). Further, courts have held that "qualified because it also had “firm” plans to “publish a
number of . . . ‘document sets’” concerning United States foreign and national security policy."
Under this criteria, as well, I qualify as a member of the news media.
Additionally, courts have held that the news media status "focuses on the nature of the requester,
not its request. The provision requires that the request be “made by” a representative of the news
media. Id. § 552(a)(4)(A)(ii)(II). A newspaper reporter, for example, is a representative of the
news media regardless of how much interest there is in the story for which he or she is requesting
information." As such, the details of the request itself are moot for the purposes of determining
the appropriate fee category.

* Fee Waiver Disposition Reason:
See letter submitted to the Requester.

Dear Ms. North-Best:

The EPA National FOIA Office has received your FOIA request, EPA-2021-006383, in which you seek the following records:

Copies of lists or indexes of frequently requested records under FOIA and other disclosure laws, including but not limited to those subject to the Rule of Three (see FOIA, 5 U.S.C. § 552(a)(2)(D) (2000)).

I also request copies of emails, memos and letters discussing the handling of frequently requested records that are subject to the Rule of Three, including but not limited to the removal of any such records.

You may limit this request to records generated between January 1, 1999 (or since your office's creation, whichever came later) and December 31, 2019.

The EPA Chief FOIA Officer Reports are EPA records, which contain information regarding EPA's handling of frequently requested records. The EPA Chief FOIA Officer reports are available on the agency website located at https://www.epa.gov/foia/foia-reports-quarterly-reports-annual-reports-chief-foia-officer-reports#chief.

The EPA proactively discloses agency records released in FOIA requests by making these records publicly available in FOIAonline. The FOIAonline search link is https://foiaonline.gov/foiaonline/action/public/home<https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Ffoiaonline.gov%2Ffoiaonline%2Faction%2Fpublic%2Fhome&data=04%7C01%7CWeth.Patricia%40epa.gov%7Cb41c7066de0d4af0bbcf08d97fa8ad7a%7C88b378b367484867acf976aacbeca6a7%7C0%7C0%7C637681184713062791%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=lmO8Qm9tcfC2lRGMifVYT%2BGBuhgIs499WWZLko4G780%3D&reserved=0>. For example, in FOIA Case Number EPA-2021-006203, EPA proactively disclosed the EPA FOIA logs for FY 2017, FY 2018, FOIA 2019, FY 2020, and a large portion of FY 2021. A review of these EPA FOIA logs may be of interest to you.

The National FOIA Office does not have responsive records in the form of lists, indexes, memos, and letters "discussing the handling of frequently requested records that are subject to the Rule of Three."

If the links above providing information are sufficient as a response to your request, please advise me.

In the event that you would like the National FOIA Office to conduct a search for responsive records in the form of emails "discussing the handling of frequently requested records that are subject to the Rule of Three," I am suggesting an email search containing the below terms and custodians:

Key Word Search: Rule of Three

Custodians: Timothy Epp
Larry Gottesman
Nicole Rementer

Date Range: July 1, 2016 to December 31, 2019

Under the FOIA Improvement Act of 2016<https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.congress.gov%2F114%2Fbills%2Fs337%2FBILLS-114s337enr.xml&data=04%7C01%7CWeth.Patricia%40epa.gov%7Cb41c7066de0d4af0bbcf08d97fa8ad7a%7C88b378b367484867acf976aacbeca6a7%7C0%7C0%7C637681184713072745%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=wZn5FB8kTukWFcM6sq8QhSOYUKsVZtwNqx2ewbU9%2Bcg%3D&reserved=0>, federal government agencies were required to make available for public in an electronic format records that have been requested three or more times.
I have changed the date range to begin from July 1, 2016, because that is the effective date of the FOIA Improvement Act of 2016.

It is important to note that many of the responsive emails may contain copies of the EPA Chief FOIA Officer Report or discuss the EPA Chief FOIA Officer Report. You may wish to have these emails excluded from the responsive records.

In the event that you wish for the National FOIA Office to conduct the above email search, please advise me within 20 working days from the date of this email. If the National FOIA office does not receive a response from you by October 27, the National FOIA Office may issue a final determination to close out your request. Please note that you are not prohibited from submitting additional Freedom of Information Act requests in the future. For more information, please visit our website at: https://www.epa.gov/foia.

If you have any questions, please contact me.

Kind regards,
Patricia A. Weth

Patricia A. Weth
Assistant General Counsel|National FOIA Office<https://www.epa.gov/foia/forms/contact-us-about-freedom-information-act-and-foia-requests>
U.S. Environmental Protection Agency | Office of General Counsel
Phone (202) 564-2295| Weth.Patricia@epa.gov<mailto:Weth.Patricia@epa.gov>

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EPA-2021-006383 has been processed with the following final disposition: Failure to respond to request for clarification.