ML24059A173
| ML24059A173 | |
| Person / Time | |
|---|---|
| Issue date: | 02/23/2024 |
| From: | NRC/OCIO |
| To: | - No Known Affiliation |
| References | |
| FOIA-2024-000098 | |
| Download: ML24059A173 (55) | |
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coming equest_NRC-2021-000021 From:
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TVA's Joseph Shea Greetings.
Jared Sullivan Mon, 2 Nov 2020 20:02:00 -0600 FOIA Resource
[External_Sender] FOIA Request: Predecisional Rnforcement Conference of I'd like any and all transcripts and exhibits from the predecisional enforcement conferences of TVA's Joseph Shea relating to Docket# IA-20-008, NRC Office of Investigations Report NO. 2-2019-015, or Report for Investigation No. 2-2018-033.
Please describe any deleted material and provide a statutory justification for the decision. I am filing this request as a member of the news media since I am a reporter and editor for The New Yorker, Time, Men's Journal, and Field & Stream. The request is made as part of the news-gathering process and is not for commercial use.
Please waive fees accumulated during the search and review process. Please contact me if the agency determines that a fee applies.
If you have any questions about the nature or scope of this request, please call me at l(b)(6)
I*
Jared R. Sullivan jr-sullivan.com
commg equest_NRC-2021-000027 From:
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Greetings:
Ken Klippenstein Mon, 9 Nov 2020 01:31:03 -0500 FOIA Resource
[External_Sender] FOIA Request dated November 9, 2020 foia dissent cables (NRC).pdf Attached please find my FOIA request dated November 9, 2020.
Please acknowledge receipt of this request at your earliest convenience.
Thank you for your assistance in this matter.
Sincerely, Ken Klippenstein DC Correspondent/The Nation l(b)(6)
I
U.S. Nuclear Regulatory Commission Mail Stop TWFN-6 A60M Washington, DC 20555-0001 Email: FOIA.resource@nrc.gov November 9, 2020 Greetings, This is a request under the Freedom of Info1mation Act ("FOIA"), 5 U.S.C. § 552 and the Privacy Act, 5 U.S.C. § 552a. This request should be considered under both statutes to maximize the release ofrecords.
REQUESTER INFORMATION Name: Kenneth Klippenstein Position: DC Correspondent/The Nation Address: 360 W Washington Ave Unit 1114, Madison, WI 53703 Email: ~ )(6)
I Phone:I ~----------~
Noel.le&,lamas Email: )(6)
RECORDS SOUGHT I respectfully request copies of all dissent channel cables, memos or any other similar type of submission received by your agency from January 1, 2009 to November 9, 2020.
BACKGROUND Many federal agencies contain a messaging framework through which they are invited to express constructive criticism of government policy; this request will refer to such mechanisms as a "dissent channel." Some agencies may not formally call it a dissent channel but the purpose is the same. For example, The Central Intelligence Agency has "red teams" of intelligence officers and analysts "dedicated to arguing against the intelligence community's conventional wisdom and spotting flaws in logic and analysis. 1 In 1980, one year after the Three Mile Island nuclear meltdown, the Nuclear Regulatory Commission (NRC) created its Differing Professional Opinion process, a dissent resolution mechanism.2 In 2011 the U.S. Agency for International Development (USAID) created a dissent reporting mechanism they called the Direct Channel, and made it open to direct-hire employees and to contractors.3 1 https://www.nytimes.com/2016/07 /02/opinion/washington-needs-more-dissent-channels.html 2 https ://www.pogo.org/report/2020/07 /stifling-dissent/
3 https://www.pogo.org/report/2020/07 /stifling-dissent/
The Department of Energy mandated the creation of its own department-wide Differing Professional Opinion process in 2005 after reviewing investigations into a 2002 "near-miss" incident at a commercial nuclear power plant and the 2003 Columbia Space Shuttle disaster.4 After the 2003 Columbia shuttle disaster, the National Aeronautics and Space Administration (NASA) created a dissent resolution process with a broad mandate: Any "substantive disagreement with a decision or action that an individual judges is not in the best interests of NASA" can qualify. 5 The Food and Drng Administration's (FDA) Center for Drug Evaluation and Research has a hybrid dissent resolution system for its over 5,000 employees.6 PLEASE NOTE:
Reasonably Foreseeable Harm. The FOIA Improvement Act of2016 amended the FOIA as follows (5 USC 552(a)(8)):
(A) An agency shall-(i) withhold information under this section only if-(1) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b); or (II) disclosure is prohibited by law; and (ii) (I) consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible; and (II) take reasonable steps necessary to segregate and release nonexempt infonnation....
INSTRUCTIONS REGARDING SEARCH
- 1. Instructions Regarding "Leads":
As required by the relevant case law, your agency should follow any leads they discover during the conduct of their searches and perform additional searches when said leads indicate that records may be located in another system. Failure to follow clear leads is a violation of FOIA.
- 2. Request for Public Records:
Please search for any records even if they are already publicly available.
- 3. Request for Electronic and Paper/Manual Searches:
I request that searches of all electronic and paper/manual indices, filing systems, and locations for any and all records relating or referring to the subject of my request be conducted.
- 4. Request for Search of Filing Systems, Indices, and Locations:
I request that your agency search all of their offices and components which are likely to contain responsive records.
- 5. Request regarding Photograph and other Visual Materials:
4 https://www.pogo.org/report/2020/07/stifling-dissent/
5 https ://www.pogo.org/report/2020/07 /stifling-dissent/
6 https://www.pogo.org/report/2020/07 /stifling-dissent/
I request that any photographs or other visual materials responsive to my request be released to me in their original or comparable forms, quality, and resolution. For example, if a photograph was taken digitally, or if your agency maintains a photograph digitally, I request disclosure of the original digital image file, not a reduced resolution version of that image file nor a printout and scan of that image file.
Likewise, if a photograph was originally taken as a color photograph, I request disclosure of that photograph as a color image, not a black and white image.
- 6. Request for Duplicate Pages:
I request disclosure of any and all supposedly "duplicate" pages. Scholars analyze records not only for the information available on any given page, but also for the relationships between that information and information on pages surrounding it. As such, though certain pages may have been previously released to me, the existence of those pages within new context renders them functionally new pages. As such, the only way to properly analyze released information is to analyze that information within its proper context. Therefore, I request disclosure of all "duplicate" pages.
- 7. Request to Search Emails:
Please search for emails relating to the subject matter of my request.
- 8. Request for Search of Records Transfen-ed to Other Agencies:
I request that in conducting your search, your agency disclose releasable records even if they are available publicly through other sources outside your agency.
- 9. Regarding Destroyed Records If any records responsive or potentially responsive to my request have been destroyed, my request includes, but is not limited to, any and all records relating or referring to the destruction of those records.
This includes, but is not limited to, any and all records relating or refen-ing to the events leading to the destruction of those records.
INSTRUCTIONS REGARDING SCOPE AND BREADTH OF REQUESTS Please interpret the scope of this request broadly. Your agency is instructed to interpret the scope of this request in the most liberal manner possible short of an interpretation that would lead to a conclusion that the request does not reasonably describe the records sought.
EXEMPTIONS AND SEGREGABILITY I call your attention to President Obama's 21 January 2009 Memorandum concerning the Freedom of Information Act, in which he states: "All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA [.... ]The presumption of disclosure should be applied to all decisions involving FOIA."
In the same Memorandum, President Obama added that government information should not be kept confidential "merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."
Finally, President Obama ordered that "The Freedom oflnformation Act should be administered with clear presumption: In the case of doubt, openness prevails."
Nonetheless, if any responsive record or portion thereof is claimed to be exempt from production, FOIA/PA statutes provide that even if some of the requested material is properly exempt from mandatory disclosure, all segregable portions must be released. If documents are denied in part or in whole, please specify which exemption(s) is (are) claimed for each passage or whole document denied.
Please provide a complete itemized inventory and a detailed factual justification of total or partial denial of documents. Specify the number of pages in each document and the total number of pages pertaining to this request. For "classified" material denied, please include the following information: the classification (confidential, secret or top secret); identity of the classifier; date or event for automatic declassification or classification review or downgrading; if applicable, identity of official authorizing extension of automatic declassification or review past six years; and, if applicable, the reason for extended classification beyond six years.
In excising material, please "black out" the material rather than "white out" or "cut out." I expect, as provided by FOIA, that the remaining non-exempt portions of documents will be released.
Please release all pages regardless of the extent of excising, even if all that remains are stationary headings or administrative markings.
In addition, I ask that your agency exercise its discretion to release records which may be technically exempt, but where withholding serves no important public interest.
ADDITIONAL INSTRUCTIONS REGARDING REQUEST Please produce all records with administrative markings and pagination included.
Please send a memo (copy to me) to the approptiate units in your office to assure that no records related to this request are destroyed. Please advise of any destruction of records and include the date of and authority for such destruction.
FORMAT I request that any releases stemming from this request be provided to me in PDF format.
FEE CATEGORY AND REQUEST FOR A FEE W AIYER I am the DC Correspondent for The Nation and a former contributor to The Young Turks and The Daily Beast. I have written extensively about intelligence community matters and will do the same here. My work has been referenced by The New York Times, The Washington Post, The Los Angeles Times, The Atlantic, and other major media outlets.
I am willing to pay any reasonable expenses associated with this request; however, as the purpose of the requested disclosure is in full conformity with the statutory requirements for a waiver of fees, I formally request such a waiver. I request a waiver of all costs pursuant to 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 conttibute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.")
Disclosure in this case meets the statutory criteria, and a fee waiver would fulfill Congress's legislative intent in amending FOIA. See Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003)
("Congress amended FOlA to ensure that it be 'liberally construed in favor of waivers for
noncommercial requesters."') I incorporate by reference the explanation and attached materials in the above sections which demonstrates why the requested information is in the public interest.
DoD 5400. 7-R C6. l.4. l provides that "documents shall be furnished without charge, or at a charge reduced below fees assessed to the categories ofrequesters in subsection C6.l.5., below, when the Component determines that waiver or reduction of the fees is int he public interest because fmnishing the infonnation is likely to contribute significantly to public understanding of the operations or activities of the Department of Defense and is not primarily in the commercial interest of the requester."
Should my request for a fee waiver be denied, I request that I be categorized as a member of the news media for fee purposes pursuant to DoD 5400.7-R C6.1.5.7. According to 5 U.S.C. § 552(a)(4)(A)(ii),
which codified the ruling of Nat '/ Security Archive v. Dep 't of Defense, 880 F.2d 1381 (D.C. Circ.
1989), the term "a representative of the news media" means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. This is consistent with the definition provided in DoD 5400.7-R C6.1.5.7.l.
As the legislative history of FOIA reveals, "It is critical that the phrase 'representative of the news media' be broadly interpreted if the act is to work as expected.... In fact, any person or organization which regularly publishes or disseminates information to the public... should qualify for waivers as a
'representative of the news media."' 132 Cong. Rec. S 14298 ( daily ed. Sept. 30, 1986) ( emphasis in original quotation); and 2) "A request by a repo1ier or other person affiliated with a newspaper, magazine, television or radio station, or other entity that is in the business of publishing or otherwise disseminating information to the public qualifies under this provision." 132 Cong. Rec. H9463 (Oct. 8, 1986) (emphasis in original quotation)). Therefore, in accordance with the Freedom oflnformation Act and relevant case law, I, Kenneth Klippenstein, should be considered a representative of the news media.
I have the intent and ability to disseminate this significant expansion of public understanding of government operations. The public interest in this significant expansion of public understanding of government operations far outweighs any commercial interest of my own in the requested release.
Accordingly, my fee waiver request amply satisfies the rules of DoD 5400.7-R C6.1.4. l. Legislative history and judicial authority emphatically support this determination. For these reasons, and based upon the extensive elaboration above, I request a full waiver of fees be granted. I will appeal any denial of my request for a waiver administratively and to the courts if necessary.
Thank you for your time and attention in this matter.
Ken Klippenstein Noelle Llamas
2/22/24, 2:25 PM Em.ail Detail.s IIncoming Request_ NRC-2021-000061 From Email : System To Email : 1Cb)C6)
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Subject : FOIA Request NRC-2021-000061 Submitted Date Sent : 1/29/2023 12: 18:05 PM Email Body : This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: Tracking Number: NRC-2021-000061 Requester Name: Michael Ravnitzky Date Submitted: 12/11/2020 Request Status:
Submitted
Description:
I request a copy of the cover page and title page only for the NRC document: SECY-75-194A, Feb 19, 1976, Sandia Lab Study Report Regarding Reactor Sabotage Study. I do not request the document itself, only the cover page and title page. The cover page and/or title page do not contain information that would be exempt under FOIA.
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2/22/24, 2.:.26 PM E.mail Details From Email. : System To Email : ~ )(6)
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Subject : FOIA Request NRC-2021-000062 Submitted Date Sent : 1/29/2023 12: 18:05 PM coming equest_NRC-2021-000062 Email Body : This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: Tracking Number: NRC-2021-000062 Requester Name: Michael Ravnitzky Date Submitted: 12/11/2020 Request Status:
Submitted
Description:
A copy of the revised (new in winter 2020) Privacy Act Assessment for the WEBACTS database of the Advisory Committee on Reactor Safety about:b)ank 1 /1
t commg eouest NRC-2021-000063 From:
admin@foiaoolioe coy Colbert. Lezlie To:
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[External_Sender] FOIA Assignment for NRC-2021-000063 Tuesday, December 15, 2020 6:37:37 AM Date:
You have been assigned to the FOIA request - NRC-2021-000063. Once logged into FOIAonline, you can navigate to this case by following this link: Yie.w.. Additional details for this item are as follows:
- Tracking Number: NRC-2021 -000063
- Requester: Michael Ravnitzky
- Request Track: Simple
- Submitted Date: 12/14/2020
- Due Date: N/ A
Description:
- Short
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N/ A
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I request a copy of each of the following SECY reports: SECY 78-068, dated Feb 1, 1978; SECY 78-073, dated Jan 31, 1978; SECY 78-075, dated Feb 3, 1978; SECY 78-076, dated Feb 3, 1978; SECY-78-080, dated Feb 3, 1978; SECY 78-085, dated Feb 10, 1978; SECY-78-087, dated Feb 10, 1978; SECY-78-088, dated Feb 9, 1978; SECY 78-089, dated Feb 10, 1978; SECY 78-095, dated Feb 14, 1978; SECY 78-097, dated Feb 14, 1978; SECY 78-097 A, dated Sept 22, 1978. I ask that electronic copies of these documents be emailed to me at my contact address.
commg equest_ NRC-2021-000064 From :
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john@greenewald.com Tue, 15 Dec 2020 06:16:34 -0800 FOIA Resource
[External_Sender] FOIA REQUEST To whom it may concern, This is a non-commercial request made under the provisions of the Freedom of Information Act 5 U.S.C.
S 552. My FOIA requester status as a "representative of the news media." I am a freelance television producer often working on documentaries related to my FOIA requests, my work is commonly featured throughout major news organizations, and I freelance writer for news sites as well. Examples can be given, if needed.
I prefer electronic delivery of the requested material either via email to iohn@greenewald.com, FAX 1-818-659-7688 or via CD-ROM or DVD via postal mail. Please contact me should this FOIA request should incur a charge.
I respectfully request a copy of records (which includes videos/photos), electronic or otherwise, of the following:
All reports, memorandum, attachments, electronic or handwritten correspondence, etc. containing the following terms:
- Bigelow Aerospace
- Bigelow Aerospace Advanced Space Studies
- BAASS from January 2008 till December 2011.
Thank you so much for your time, and I am very much looking forward to your response.
Sincerely, John Greenewald, Jr.
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FAX 1-818-659-7688 Sincerely, John Greenewald, Jr.
CEO - The Black Vault, Inc.
http://www.theblackvault.com Toll Free: (800) 456-2228
International: 1 (818) 655-0474 Fax: (818) 659-7688 Mailing Address:
The Black Vault l(b)(6)
2/22/24, 2:.22 PM Email Details.
~ commg equest :NR.C-2022-000124 From Email. : System To Ema.ii : 1Cb)<6)
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Bee Email :
Subject : FOIA Request NRC-2022-000124 Submitted Date Sent: 1/29/2023 12:27:08 PM Email Body : This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: Tracking Number: NRC-2022-000124 Requester Name: Mr. Rowland G Hume Date Submitted: 04/05/2022 Request Status:
Submitted
Description:
Foia request for all responsive records for the keywords "UFO, UAP, UKN UAS, Unknown radiological(or) Hazardous object(s)" or any other acronym used for UFO by the NRC. Tha.nk you If any clarification is needed for my FOIA request please do not hesitate to contact me via ema.il address supplied. Kind Regards R. Hume.
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ept of State eferral NRC-2022-000126 From:
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Hudson, Jennifer L Thu, 7 Apr 2022 14:23:05 +0000 FOIA Resource
[External_Sender] State FOIA Litigation Referral FL-2021-00490 Hathaway Direct Reply NRC.pdf, Hathaway Complaint.pdf, Hathaway Initial Request Letter.pdf, Hathaway NRC March 2022.pdf The first and third attachments are the responsive records Good afternoon, The attached pdf contains documents that fall under your purview. We are referring them for your review and direct response to the requester. A copy of the original FOIA request and subsequent complaint is attached.
Please note, we are anticipating locating other documents under your purview and will send as they are located.
If I need to re-direct this to another office, please let me know.
Thank you, Jennifer Jennifer Hudson PacArctic Senior FOIA Consultant A/GIS/IPS Available Monday-Thursday 7-4:30 l'lENSITP:'E Qle:IT Ut>IGbAS~~fl!iQ
SEHSffPlE fHJf' UHCLA:SSfFffiB TO:
FROM:
U.S. Nuclear Regulatory Commission FOIA Officer Mailstop: TWFN-6 A60M Washington, DC 20555-0001 Email: FOIA.resource@nrc.gov Jeanne Miller ~
~
United States Department of State lfl a.shington, D. C. 20520 April 7, 2022 Case No. FL-2021-00490 Civil Action No. 21-cv-00691 Requester: Oona Hathaway Chief, Programs and Policies Division Office of Information Program and Services
SUBJECT:
Referral for Direct Reply - LITIGATION In processing this request, we have located the attached 29 pages which originated with your agency. Upon review, we have determined that there are no State Department equities within the documents. Please review this material and reply directly to the requester.
Please be advised that this case is in litigation; therefore, we suggest that you consult with your office of general counsel. In addition, please send us a copy of your reply to the requester.
Please refer to our case number in your copy to us and sent it to HudsonJ@state.gov If you have any questions, please contact the Ligation Case Officer, Jennifer Hudson, at HudsonJ@state.gov Attachments:
U nredacted Copy of 29 pages Copy of request letter Copy of complaint SE~ifSITNE BUT UNCLA:SSfFffiB 1
Evans, Wayne D From:
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Linhorst, Michael <michael.linhorst@yale.edu>
Tuesday, December 29, 2020 1 :33 PM FOIArequest FOIA Request - Office of Treaty Affairs Hathaway FOIA - State OT A.pdf On behalf of Prof. Oona Hathaway and the Yale Law School Center for Global Legal Challenges, please find attached a request under the Freedom of Information Act seeking records pertaining to the Office of Treaty Affairs.
Michael Linhorst Clinical Lecturer I Craig Newmark Fellow Media Freedom & Information Access Clinic Yale Law School ICb><6>
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Yale Law School Via Email U.S. Department of State Office of Information Programs and Services A/GIS/IPS/RL 2201 C Street N.W., Suite B266 Washington, D.C. 20520-0000 FOIARequest@state.gov December 29, 2020 Re:
Freedom of Information Act Request and Request for Expedited Processing and Fee Waiver-Nonbinding International Agreements
Dear Sir or Madam:
This is a request for records under the Freedom of Information Act ("FOIA"), 5 U.S.C.
§ 552, and the State Department regulations relating to FOIA requests, 22 C.F.R. §§ 171.10-171.18. It is also a request for expedited processing under 22 C.F.R. § 171.11 (f), and for a reduction or waiver of fees under 22 C.F.R. §§ 171.14-171. 16.
I am submitting this request on behalf of the Yale Law School Center for Global Legal Challenges. The Center for Global Legal Challenges is an independent center within the Yale Law School that bridges the divide between the legal academy and legal practice on global legal issues. It provides a forum where academic experts and students engage with public and private sector actors responsible for addressing global legal challenges. By bringing these communities together, the Center aims to inject new ideas into the public debate and grow a new generation of lawyers with a sense of their capacity and responsibility to use international law, foreign-affairs law, and national-security law to address the nation's challenges.
I.
Background
The Case-Zablocki Act of 1972 requires the Secretary of State to "transmit to the Congress the text of any international agreement... other than a treaty, to which the United States [or U.S. government agency] is a party," 1 U.S.C. § l 12b(a), and it charges the Secretary of State with determining "whether an arrangement constitutes an international agreement within the meaning of this section." 1 U.S.C. § 112b(e)(l). Arrangements constitute "international agreements" within the meaning of the Act if they create legally binding obligations governed by international law. 22 C.F.R. § 181.2(a). Nonbinding arrangements and understandings-sometimes referred to as "political comrnitments"-do not qualify. Whether an arrangement is binding is informed by the document's text, its negotiating history, and similar factors. Id. Some nonbinding understandings or arrangements may use any number of titles or descriptors, including "Memorandum of Understanding," "Statement of Intent," and "Cooperative
Arrangement." See Guidance on Non-Binding Documents, U.S. State Dep't, https://2009-2017.state.gov/s/1/treaty/guidance/index.htm [hereinafter State Guidance). However, the use, or the omission, of such descriptors does not always signify that a document is, or is not, a nonbinding understanding or arrangement. State Guidance. Some, but not all, nonbinding understandings or arrangements include a disclaimer that the document is not binding under international law, such as "not legally binding," "no binding obligations," "no legal obligations,"
"not constitute a legally binding agreement," and other similar phrases. Id. But, again, such disclaimers are not inevitably included. Nonbinding understandings or arrangements may also include signature lines, and nonbinding understandings or arrangements will have been sent outside the agency to a representative of a foreign government or international organization.
The central clearinghouse for these documents is the Office of Treaty Affairs ("the Office").
Implementing regulations require U.S.
agencies that "negotiat[e]
and conclud[ e]... international agreements" to "transmit[] to the Assistant Legal Adviser for Treaty Affairs... the texts of any document or set of documents that might constitute an international agreement." 22 C.F.R. § 181.3(b). Accordingly, the Office of Treaty Affairs receives copies of all agency-negotiated agreements that are binding or might be binding. In addition, the Office of Treaty Affairs also "encourages agencies and offices to share the text of non-binding documents." State Guidance. As the Office's website has noted: "Governments frequently wish to record in writing the terms of an understanding or arrangement between them without, by so doing, creating obligations that would be binding under international law." Id.
In short, three categories of documents reflecting international understandings or arrangements pass through the Office of Treaty Affairs: (1) binding agreements, (2) understandings or arrangements that might be binding, and (3) voluntarily shared nonbinding understandings or arrangements. Of these materials, this FOIA request covers only those documents that have been detern1ined to be nonbinding-that is, understandings or arrangements between the United States and a foreign nation or international organization that have been deemed not to be "international agreements" because they are not binding and therefore not reported to Congress pursuant to the Case-Zablocki Act.
I am requesting these records to promote increased transparency regarding the many nonbinding arrangements and understandings U.S. agencies and foreign governments have concluded since 1989. Many of these arrangements have a significant impact on the nation's economic and security interests. Prominent examples of nonbinding understandings or arrangements include the Atlantic Charter, the Helsinki Accords, and the Joint Comprehensive Plan of Action with Iran. They regulate numerous subjects of public concern, including trade policy, nuclear energy, sanctions regimes, and environmental protection. Given the far-reaching impact of nonbinding understandings and arrangements on American society, it is critical that the public has a complete understanding of their nature and scope-especially since they fall outside the Case-Zablocki Act's oversight regin1e.
II.
Formal Request
( 1) Unclassified guidance, policies, directives, rules, or regulations governing the drafting or evaluation of nonbinding understandings and arrangements. I respectfully request that the Department provide all unclassified guidance, policies, directives, rules, or regulations that (a) govern the Office's own internal process for making binding/nonbinding determinations, 2
(b) aid agencies in determining whether agreements are binding, and ( c) aid Department components and other agencies in drafting nonbinding agreements. I seek these records from the period of January 1, 1989 to December 31, 2019.
(2) Unclassified records associated with nonbinding understandings or an*angements. I request for the same period any and all unclassified records associated with nonbinding documents, including lists, records, or descriptions of those documents.
(3) Unclassified nonbinding understandings or arrangements in written form. I request for the same period any and all unclassified nonbinding understandings or arrangements with foreign countries or international organizations actually in the Office's possession. My understanding is that all records responsive to this request are retained within the Office of Treaty Affairs.
This request includes:
Any and all understandings or an-angements that are nonbinding based on the text or drafting history, as described in the Background statement above.
Any and all understandings or arrangements detennined to be nonbinding and therefore not reportable to Congress as an international agreement under the Case-Zablocki Act.
This request excludes:
Any agreement, understanding, or arrangement that has been reported to Congress as an international agreement under the Case-Zablocki Act.
Any nonbinding understanding or arrangement that is exclusively in verbal form.
III.
Application for Expedited Processing I request expedited processing for this request pursuant to 5 U.S.C. § 552(a)(6)(E) and implementing regulations 22 C.F.R. § 171.1 l(f). There is a "compelling need" for these records because, as described above, the information requested is sought by an organization "primarily engaged in disseminating information" to "to inform the public concerning actual or alleged Federal government activity." 5 U.S.C. § 552(a)(6)(E)(v)(ii); 22 C.F.R. § l 71. ll(f)(2). The Yale Law School Center for Global Legal Challenges identifies "the dissemination of ideas to the policy community outside academia" as "[a] central aspect of [its] mission." Projects &
Publications, Ctr. for Global Legal Challenges, https://law.yale.edu/center-global-legal-challenges/projects-publications; see also COVID and the Global Order, Yale L. Sch. (Sept. 28, 2020), https://law.yale.edu/yls-today/news/covid-and-global-order (summarizing a virtual discussion series with senior policymakers organized by the Center). I am the Director of the Center, and have a long record of furthering its mission by disseminating information to the general public through academic publications, legal biogs, and the popular press. See, e.g., Oona Hathaway, Reengaging on Treaties and Other International Agreements (Part II): A Path Forward, Just Security (Oct. 6, 2020), https://www.justsecurity.org/72690/reengaging-on-treaties-and-other-international-agreements-part-ii-a-path-forward; Oona
- Hathaway, The International Criminal Court Is No Threat to America, But John Bolton Is, Newsweek (Sept. 12, 2018),
https://www.newsweek.com/international-criminal-court-no-threat-america-john-bolton-opinion-1115820. Indeed, the Center previously filed a FOIA request with the 3
Department seeking Case-Zablocki Act cover memos, which I ( along with two co-authors) used to write an article in the Harvard Law Review. See Oona A. Hathaway, Curtis A. Bradley & Jack L. Goldsmith, The Failed Transparency Regime for Executive Agreements: An Empirical and Normative Analysis, 134 Harv. L. Rev. 629 (2020) [hereinafter Hathaway, Bradley & Goldsmith Article]. The requested records indisputably concern "actual or alleged Federal government activity." 22 C.F.R. § l 71.1 l(f)(2). Further, there is a particular urgency to inform the public about the requested records. Many of the arrangements at issue are enormously consequential to the nation's security and economic interests, see supra Part I, and any delay continues to leave the public in the dark about the understandings that the U.S. is reaching with foreign governments and international bodies.
If you require further explanation concerning the basis of this request for expedited processing, please contact me at the email address listed below.
IV.
Application for Waiver or Limitation of All Fees I also request that the Department waive and/or limit the search, review, and duplication fees associated with this request. A State Department regulation states that fees may be waived or reduced if disclosure "is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 22 C.F.R. § 171.16(a). Both factors counsel in favor of a fee waiver in this instance.
First, disclosure of the requested records "likely to contribute significantly to public understanding of operations or activities of the government." 22 C.F.R. § 171.16(a)(l). The requested records-nonbinding arrangements between the U.S. and foreign governments or international bodies-indisputably "concern identifiable operations or activities of the Federal Government." 22 C.F.R. § 171.16(a)(l)(i). Disclosme of the requested records would "be meaningfully informative about government operations or activities" and would enhance the public's understanding "to a significant extent." 22 C.F.R. § 171.16(a)(l)(ii), (iv). Many nonbinding arrangements have a significant impact on the nation's economic and security interests, see supra Part I, and limited oversight of these arrangements means that the public knows little about them. Further, disclosure will "contribute to the understanding of a reasonably broad audience of persons interested in the subject." 22 C.F.R. § 171.16(a)(l)(iii). The Yale Law School Center for Global Legal Challenges-of which I am the Director and on behalf of which I file this request-identifies "the dissemination of ideas to the policy community outside academia" as "[a] central aspect of [its] mission." Projects & Publications, Ctr. for Global Legal Challenges, https://law.yale.edu/center-global-legal-challenges/projects-publications. I advance the Center's mission by frequently contributing to popular legal biogs, see, e.g., Oona Hathaway, Universal Health Care is a National Secmity Issue, Just Security (Mar. 12, 2020),
https://www.justsecurity.org/69130/universal-health-care-is-a-national-security-issue, and by writing about legal issues for the popular press, see, e.g.. Oona Hathaway, Turkey is Violating International Law. It Took Lessons from the U.S., Wash. Post (Oct. 22, 2019),
https:/ /www.washingtonpost.corn/outlook/2019/10/22/turkey-is-violating-international-law-it-took-lessons-us. I also co-authored the Harvard Law Review article discussed above based on the State Department's Case-Zablocki Act cover memos---<locuments the Center obtained through a previous FOIA request. See Hathaway, Bradley & Goldsmith Article. I am, accordingly, well placed to "effectively convey information to the public," 22 C.F.R.
4
§ 171.16(a)(l)(iii), and my record ofresearch and commentary that influences the public debate demonstrates that the requested records will inform a broad audience.
Second, disclosure "is not primarily in the commercial interest of the requester." 22 C.F.R. § 171.16(a)(2). The requested records are not sought for commercial use and will be disclosed to the public at no cost. In addition, I am affiliated with Yale Law School, an educational institution, and am seeking the records described in this request for the purpose of contributing to the public understanding of the federal government's activities, and for related scholarly research.
I am therefore entitled to a waiver of search fees and review fees, and a waiver or reduction of duplication fees. See 22 C.F.R. § 171.16. Should the Department determine that I am not eligible for a fee waiver under 22 C.F.R. § 171.16, I request a fee limitation under 22 C.F.R. § 17 l. l 4(b )( 5)(ii)(A). As discussed above, I am affiliated with an educational institution and file this FOIA request to further my scholarly research. If you require further information concerning the basis of this request for a fee waiver and/or limitation, please contact me at the email address listed below.
Should the Department determine that I am not eligible for a waiver of all fees, I am willing to pre-authorize the expenditure of up to $100.00 to process this request. Please contact me via email to obtain my authorization prior to charging any fees above that amount.
V.
Response Requested in 20 Days Your attention to this request is appreciated, and I anticipate your determination concerning this request within twenty (20) working days pursuant to 22 C.F.R. § 171.1 l(e).
If this FOIA request is denied in whole or in part, I respectfully request that the Department provide a reasonable description of any withheld materials, and a justification for the withholding of such materials, including a reference to the FOIA exemption ( or other legal authority) supporting the withholding. See 5 U.S.C. § 552(a)(6)(A)(i); 22 C.F.R. § 171.11(1).
Should you have any questions regarding this request, please contact me at your earliest convenience at the email address listed below.
Sincerely, Oona A. Hathaway Director, Center for Global Legal Challenges Gerard C. and Bernice Latrobe Smith Professor of International Law Yale Law School oona.hathaway@yale.edu 5
2/22/24, 2:.27 PM Email Detail.s t
coming equest NRC-2022-000167 From Email :. System To Email :. kyle.malove@du,edu Cc Email:
Bee Email :
Subject : FOIA Request NRC-2022-000167 Submitted Date Sent: 1/29/2023 12:27:39 PM Email Body : This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: Tracking Number: NRC-2022-000167 Requester Name: Mr. Kyle Malave Date Submitted: 05/13/2022 Request Status:
Submitted
Description:
Accession Number: AD0667562 Titl.e: LARGE SIGNAL ANALYTICAL THEORY OF KLYSTRON WAVES. Descriptive Note: Research rept., Corporate Author:
CHALMERS UNIV OF TECHNOLOGY GOTEBORG (SWEDEN) RESEARCH LAB OF ELECTRONICS Personal Author(s): Wallander,Sven Report Date: 1967-09-15 Pagination or Media Count:.
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Hi Margo, rnatubosuo Samuel A FOIA Resource
[External_Sender] Re: REQUEST FOR RG 5.81 "Target Set Identification and Development for Nuclear Power Reactors" Tuesday, May 10, 2022 10:17:15 AM Thank you for your response to my mail. I am sorry for replying late as I couldn't get your earlier mail opened on my computer.
I am a Postdoctoral Researcher working on a project that require the document I requested for.
The project is under Nuclear Energy University Program (Project 21-24332), sponsored by DOE.
Below are the requested information:
Mailing address:
Room 382, Scott Laboratory, Department of Mechanical and Aerospace Engineering, 201 W 19th Ave., Columbus, OH 43210.
TeL!Cb)(6)
Thank you.
Samuel Olatubosun (PhD).
Get Outlook for Android From: FOIA Resource <FOIA.Resource@nrc.gov>
Sent: Tuesday, May 10, 2022 9:49:48 AM To: Olatubosun, Samuel A.<olatubosun.l@osu.edu>
Subject:
RE: REQUEST FOR RG 5.81 "Target Set Identification and Development for Nuclear Power Reactors" Good morning. This is my second attempt to reach you with regard to the request that you submitted last Friday (below).
In order to log in your request to our information management system, FOIAonline, we must have (1) a mailing address for you; (2) a fee ceiling that you are willing to pay for our processing of your request; and (3) a telephone number.
Unless and until we receive this information, we cannot move forward to process your request.
J\\11.argo L Stevens
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Sent: Friday, May 06, 2022 10:52 AM To: FOIA Resource <FOIA.Resource@ nrc.gov>
Subject:
[External_Sender] REQUEST FOR RG 5.81 "Target Set Identification and Development for Nuclear Power Reactors"
Dear Sir/Madam,
My name is Samuel Olatubosun, a Post doctoral Scholar at the Ohio State University.
Please can you kindly provide me with the document which has t he reference below:
'U.S. Nuclear Regulatory Commission. Rev. 1-2019. "Target Set Identification and Development for Nuclear Power Reactors (OUO-SRI)." RG 5.81, U.S. Nuclear Regulatory Commission.'
This document is needed for a research on Physical Security at the Department of Mechanical and Aerospace Engineering.
Thank you.
-Samuel Olatubosun
BI Consultation P.OllP.St NRC;-2022-000170)
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VIA EMAIL - URGENT PENDING LIT/GA TION To:
ATTN: Donna Sealing USNRC FOIA Privacy Act Section Mail Stop T5 F09 11555 Rockville Pike Rockville, MD 20852 From:
Michael G. Seidel Section Chief Record/Information Dissemination Section Information Management Division 200 Constitution Drive Winchester, VA 22602-4843 U.S. Department of Justice Federal Bureau of Investigation Washington, D. C. 20535 May 17, 2022
Subject:
FOIPA Request of THE BRADY CENTER TO PREVENT GUN VIOLENCE FBI FOIPA Request Number: 1451131 -000
Subject:
NICS Standard Operating Procedures Pending Litigation: THE BRADY CENTER TO PREVENT GUN VIOLENCE v. FBI Civil Action Number: 21-cv-0166 While reviewing records responsive to the above FOIPA request, the FBI located the enclosed FBI documents containing information concerning your agency (Attachment A). Please review the bracketed information and return the documents to us, making any deletions you deem appropriate, citing the exemption(s) claimed. In the event exemptions are claimed, your office may need to provide a declaration supporting the claimed exemptions.
A copy of the requester's initial letter and the complaint is enclosed for your convenience (Attachment 8). If you have any questions concerning this referral, please contact the Litigation Support Unit at 540-868-4407. FBI FOIPA Request Number 1451 131-000 and/or FBI Civil Action Number 21-cv-0166 should be utilized during any consultation with the FBI concerning this referral.
This matter involves pending litigation. If possible, we request your agency's response on or before June 10, 2022. We thank you in advance for your immediate attention to this matter.
Enclosures Only the incoming request is a esponsive record.
U.S. Department of Justice Federal Bureau of Investigation Washington, D.C. 20535 ATTACHMENT A List of attached Documents (include File, Section, FDPS Page Numbers and/or Bates Numbers)
FOIPA [1451131-000], File [NICS SOPs], Section 11, Bates Pages [(21-cv-0166)-3510-3514}1 1 For internal FBI reference: FOPS pages [321-325].
Case 1:21-cv-00166 Document 1-1 Filed 01/19/21 Page 2 of 103 October 29, 2019 Federal Bureau of Investigation Attn: FOI/PA Request Record/Information Dissemination Section 170 Marcel Drive Winchester, VA 22602-4843 Fax: (540) 868-4391/4997 Holly E. Loiseau Weil, Gotshal & Manges LLP 2001 M Street, NW Suite 600 Washington, D.C. 20036
+1 (202) 682-7144 holly.loiseau@weil.com Re:
FREEDOM OF INFORMATION ACT REQUEST FOR DOCUMENTS CONTAINING THE NICS STANDARD OPERATING PROCEDURES
Dear Sir or Madam:
Pursuant to the provisions of the Freedom oflnformation Act ("FOIA") 5 U.S.C. § 522 et seq., our firm hereby requests on behalf of our client, The Brady Center to Prevent Gun Violence
("Brady Center"), that the Federal Bureau of Investigation ("FBI") produce copies of documents and records related to the National Instant Criminal Background Check Systems ("NICS") Standard Operating Procedures ("SOPs"), including:
- 1. All complete or partial tables of contents or indexes that depict, organize, or display any SOPs relating to NICS in effect as of October 2019 ("Category 1 Request: Scope")';
- 2. A full and complete (i.e., unredacted) copy of each and every current SOP relating to NICS, including any cover page, attachments, and/or exhibits thereto in effect as of October 2019 ("Category 2 Request: Current SOPs");
- 3. A full and complete (i.e., unredacted) copy of each and every historical SOP relating to NICS (including those that have been revised and/or are no longer in effect) dating back to January 1, 2011, including any cover page, attachments, and/or exhibits thereto
("Category 3 Request: Historical SOPs");
AVAILABILITY OF EXISTING NICS SOPS AND RELATED IMPLICATIONS In Sanders v. United States, 324 F. Supp. 3d 636 (D.S.C. 2018), the United States District Court for the District of South Carolina ordered the United States to produce "all NICS SOPs in effect in April 2015." "February 7, 2018 Order [ECF No. 52]. Approximately one week later, the United States filed a "Notice of Compliance" certifying that it transmitted by one compact disc a 1 The SOPs contained in Exhibit A appear to be part of a larger set of NICS SOPs, and the purpose of this request is, in part, to determine which SOPs from the incomplete and redacted set in the Brady Center's possession are missing or withheld.
WEIL:\\97221372\\22\\99995.6232
Case 1:21-cv-00166 Document 1-1 Filed 01/19/21 Page 3 of 103 "complete, unredacted, set" ofNICS SOPs "in effect in April 2015 for in camera review by the Comt." "February 15, 2018 Notice of Compliance" [ECF No. 53). Subsequently, upon the Court's review, a number of additional NICS SOPs were disclosed in the course of litigation. See "November 30, 2017 Motion to Dismiss" by United States of America [ECF No. 43), "December 22, 2017 Response in Opposition to Motion to Dismiss" by Plaintiff [ECF No. 44), "March 30, 2018 Supplement to Motion to Dismiss" by United States of America [ECF No. 66) (filing and disclosing SOPs 1.3, 3.4, 5.0, 5.4.7, 5.5.3, 5.5.4, 5.5.5, 5.10, 5.16 and 12.0 as exhibits). These publicly available SOPs are included as Exhibit A attached to this request. Moreover, SOPs 3.4, 5.5.4, 5.5.5, and 12.0 were produced with minor to extensive redactions. The Brady Center hereby requests that the FBI produce NICS SOPs 3.4, 5.5.4, 5.5.5, and 12.0 without redaction.
It is clear that there are a significant number of SOPs that relate to the administration of the NICS system beyond those included in Exhibit A. Below is a non-exhaustive list that encompasses NICS SOPs identified from the document productions made in the Sanders case. At a minimum, the Brady Center expects that each individual SOP listed below is responsive to at least one if not all of the Brady Center's requests. The Brady Center hereby requests that the FBI produce each of the SOPs identified below without redaction as well as any other SOPs responsive to the Brady Center's requests.
Additional NICS SOPs Known to Exist:
Again, the list of21 SOPs above is non-exhaustive - the Brady Center expects that there are far more SOPs that are responsive to the Brady Center's three categories of requests. Indeed, given the numbering system above, it is clear that there are far greater than 21 SOPs relating to NICS.2 WEIL:\\97221372\\22\\99995.6232 2
Case 1:21-cv-00166 Document 1-1 Filed 01/19/21 Page 4 of 103 Thus, the Brady Center's expectation would be that the above SOPs and their surrounding SOPs are likely directly responsive to its requests.
EXEMPTIONS UNDER 5 U.S.C. 552(b) DO NOT APPLY The purpose of FOIA is to "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep 't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (internal citations omitted). An agency must disclose agency records to any person pmsuant to FOIA's § 552( a, "unless they may be withheld pmsuant to one of the nine enumerated exemptions listed in § 552(b)." Dep 't of Justice v. Julian, 486 U.S. 1, 8 (1988); 5 U.S.C. § 552(a), (b)(l)-(9). "Consistent with the Act's goal of broad disclosure, these exemptions have been consistently given a narrow compass." Dep 't of Justice v. Tax Analysts, 492 U.S. 136, 151 ( 1989) ( ordering disclosure of requested documents). Courts resolve all doubts in favor of disclosure. See Dep 'ta/Interior v.
Klamath Water Users Protective Ass 'n, 532 U.S. 1, 8 (2001). Further, the agency challenging a FOIA request bears the burden of establishing that any claimed exemption applies. Nat'! Council of La Raza v. Dep 't of Justice, 411 F.3d 350, 356 (2d Cir. 2005); 5 U.S.C. § 552(a)(4)(B).
Of the statutory exemptions under FOIA, only two exemptions are potentially relevant to the Brady Center's requests: Exemption (b)(7)(E) or Exemption (b)(5). See 5 U.S.C. § 552(a), (b)(l)-
(9). As explained below, the documents requested by the Brady Center fall under neither exemption and therefore responsive documents should be produced without redactions accordingly. Responsive documents are requested to be produced in their entirety, including all attachments, enclosures, and exhibits. In the event that the FBI or related agency does find an exemption applies, the Brady Center respectfully requests that the FBI "carry its burden of demonstrating [that an exemption applies] by submitting detailed explanations[, such as through the use of declarations,] why any withheld documents fall within an exemption." Florez v. CIA, 829 F.3d 178, 182 (2d Cir. 2016).
Further, the Brady Center requests that any documents responsive to the Brady Center's requests that it detern1ines cannot be disclosed be identified in accordance with Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir. 1975).3 FOIA regulations provide that, if some parts of records containing the requested information fall within the statutory exemptions to mandatory disclosure, the non-exempt material shall be disclosed after the exempt material has been redacted. See 5 U.S.C. § 522(b); 28 C.P.R. § 16.6. Finally, if the requested records are not in the possession of the FBI or its agents, the Brady Center requests that the FBI identify all federal agencies and/or other individuals and entities believed to possess such documents.
2 The list above includes SOPs in Parts 3, 5, 10, and 11 (implying that there are Parts 1, 2, 4, 6, 7, 8, 9), as well as one or two degrees of sub-Parts - indicating that there are a significant number of sub-Parts within each Part that would also be responsive.
3 "Preparation of a Vaughn index requires agencies to itemize and index documents requested, segregate their disclosable and nondisclosable portions, and correlate each nondisclosable portion with Freedom of Information Act provision which exempts it from disclosure." Ferguson v. F.B.l.,
722 F.Supp. 1137, 1144 (S.D.N.Y.1989) (internal citation omitted). "The purpose of a Vaughn index is to afford a FOIA plaintiff an opportunity to decide which of the listed documents it wants and to determine whether it believes it has a basis to defeat the Government's claim of a FOIA exemption." New York Times Co. v. Dep 't oflustice, 762 F.3d 233,237 (2d Cir. 2014) (internal citations omitted).
WEIL:\\97221372\\22\\99995.6232 3
Case 1:21-cv-00166 Document 1-1 Filed 01/19/21 Page 5 of 103 5 U.S.C. 552(b)(7)(E)
There are discrete categories of law enforcement and national security records that are exempt from FOIA requirements. Most notably, 5 U.S.C. § 552(b)(7)(E) allows agencies to withhold only "records or information compiled for law enforcement purposes," but only to the extent that the production of such law enforcement records or infom1ation would "disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E).
The Criminal Justice Information Services ("CJIS") division of the FBI has repeatedly insisted that NICS is not a law enforcement agency. See Sanders v. United States, Civil Action No.
2:16-2356-RMG (D.S.C. 2018), ECF No. 43, Exhibit 21, p. 66, 78, 113 (noting that former Acting Unit Chief John C. Quinlan of the N-DEx Program Office stated in his deposition: "You have to be a criminal justice agency, so NICS does not have access to N-DEx because it's not a criminal justice entity within - within the FBI."). Indeed, the NICS system itself is used to monitor a process that is entirely legal: the purchase ofa firearm. See id. ECFNo. 44, Exhibit 14, p. 167, 193,195, 209-11, 215,216 (noting that former Assistant Director Stephen L. Morris of the CJIS Division stated in his deposition: "Well, in short tem1, my basis would be the administration of criminal justice is when you're dealing with criminals, and not everybody that conducts a NICS transaction is a criminal.
Those are law-abiding citizens trying to purchase a firearm. They're not criminals."). Id. at 210-11.
Thus, because (in the FBI's own view) the NICS is not a law enforcement agency-and it therefore follows that the FBI does not use NICS SOPs for law enforcement purposes-the Brady Center need not entertain the question of whether the NICS SOPs could constitute "techniques and procedures" or "guidelines" within Exemption (7)(E) as it only applies to law enforcement records. As such, Exemption (7)(E) should be inapplicable for each document responsive to Brady Center's requests.
5 U.S.C. 552(b)(5)
In order for 5 U.S.C. 552(b)(5) to apply, the documents that an agency is withholding must be both "predecisional" and "deliberative." Brennan Center for Justice at NY University School of Law v. Dep 't of Justice, 697 F.3d 184, 194 (2nd Cir. 2012). The NICS SOPS are neither. "This privilege protects recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Id.
(internal quotations and citations omitted) ( emphasis added). Specifically, a "document claimed to be exempt will be found outside Exemption 5 if it closely resembles that which FOIA affirmatively requires to be disclosed" such as "statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register" or "administrative staff manuals and instructions to staff that affect a member of the public." Id. (emphasis added).
Here, it is clear that Exemption (b )(5) does not apply. As the Fourth Circuit recently held, "the NICS SOPs contain a set of requirements specifying the course of action an Examiner must take in conducting a background check," and the SOPs are "rigid," "highly structured," and "Examiners are governed by the SOPs, which mandate the standards for approval or denial of the firearm sale."
Sanders, 937 F.3d at 329. The mandatory nature of the NICS SOPs relied on are, therefore, not akin to "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency" that would WEIL:\\97221372\\22\\99995.6232 4
Case 1:21-cv-00166 Document 1-1 Filed 01/19/21 Page 6 of 103 entitle them to protection from disclosure under Exemption (b)(5). Rather, they are closer to "administrative staff manuals and instructions to staff that affect a member of the public," for which Exemption (b)(5) does not grant any protection. As such, Exemption (b)(5) should also be inapplicable for each document responsive to Brady Center's requests.
FORMAT AND PRODUCTION REQUESTS The Brady Center further requests that, pursuant to 5 U.S.C. § 522(a)(3)(B), the FBI produce responsive documents in the native electronic format in which the document was created. To the extent that the FBI is unable to produce the responsive documents in the requested format, the Brady Center requests confirmation that the record does not exist in native format and production of the documents in the following format, listed in order of the Brady Center's preference: (1) PDF format or (2) paper copy.
The Brady Center requests that the FBI produce these documents within twenty (20) working days as required by FOIA. Additionally, in accordance with Section 7 of the OPEN Government Act of 2007, Pub. L. No. 110-175, and pursuant to Attorney General Holder's FOIA Memorandum of March 19, 2009, the Brady Center requests that the FBI provide the individualized tracking number associated with this request should the request take longer than 10 days to process.
FEE WAIVER REQUEST Pursuant to 31 C.F.R. § l.7(d), this request qualifies for a fee waiver because the requested information will be used for a public interest purpose and not for commercial purposes. The Brady Center is a 50l(c)(3) non-profit dedicated to creating a safer America by cutting gun deaths in half by 2025. The requested infonnation will be used to educate the public and further this goal. In the past, federal agencies have granted the Brady Center (previously known as the Center to Prevent Handgun Violence) a fee waiver under like circumstances. See, e.g., Center to Prevent Handgun Violence v. Dep't of the Treasury, 49 F.Supp.2d 3, 5 (D.D.C. 1999) (acknowledging the Bureau of Alcohol, Tobacco, Firearms and Explosives's past grant of a fee waiver to the Brady Center for a similar request of government records).
The Brady Center appreciates your prompt consideration of this request. If you have any questions, or if the Brady Center can be of any assistance in expediting this request, please contact me at (202) 682-7144.
WEIL:\\97221372\\22\\99995.6232 5
Case 1:21-cv-00166 Document 1-1 Filed 01/19/21 Page 7 of 103 cc:
Joshua Scharff Tess Fardon Kayleigh Golish Alex Walsh Amama Rasani John Lapin WEIL:\\97221372\\22\\99995.6232 Sincerely, By:
Isl Holly E. Loiseau Holly E. Loiseau WEIL, GOTSHAL & MANGES LLP 200 I M Street, NW Suite 600 Washington, DC 20036 T: (202) 682-7144 F: (202) 857-0940 Holly.Loiseau@W eil. com Attorney for The Brady Center to Prevent Gun Violence.
6
Case 1:21-cv-00166 Document 1-3 Filed 01/19/21 Page 2 of 11 Weil, Gotshal &: Manges LLP Via Electronic Submission through eFOJP A Portal July 21, 2020 Federal Bureau of Investigation Attn: Public Information Officer Information Management Division 170 Marcel Drive Winchester, VA 22602-4843 2001 M Street, NW Suite 600 Washington, DC 20036
+ 1 202 682 7000 tel
+ 1 202 857 0940 fax Holly E. Loiseau
+1 (202) 682-7144 holly.loiseau@weil.com Re: FREEDOM OF INFORMATION ACT EXPEDITED REQUEST FOR DOCUMENTS RELATED TO THE NICS BACKGROUND CHECK PROCESS DURING THE COVID-19 PANDEMIC
Dear Sir or Madam:
Pursuant to the Freedom of Information Act ("FOIA") 1 and Department of Justice regulations2 Weil, Gotshal & Manges LLP hereby submits this expedited FOIA request on behalf of our client, The Brady Center to Prevent Gun Violence ("Brady Center"). The Brady Center requests that the Federal Bureau of Investigation ("FBI") produce the following records related to the National Instant Criminal Background Check Systems ("NICS") during the COVID-19 pandemic, i.e., for each month in 2020 and for each week beginning March 1, 2020 and thereafter through June 30, 2020:
- 1.
Any and all documents indicating the total number of background checks 3 conducted and completed within the three-business-day "default proceed" period;4
- 2.
Any and all documents indicating the number of delayed background checks that were not completed within the "default proceed" period;
- 3.
Any and all documents indicating (i) the number of background checks that were denied immediately, (ii) the number of delayed background checks that were denied on each business day during the "default proceed" period, and (iii) the number of delayed 1 5 U.S.C. § 522, et seq.
2 28 CFR § 16.5(e).
3 The Brady Center recognizes that the FBI released a report representing the number of firearms background checks initiated through the NJCS from November 1998 to June 30, 2020. The report stated that 3,931,607 background checks were initiated through the NJCS system in June 2020. NJCS Firearm Background Checks, Federal Bureau of Investigations, available at https://www.tbi.gov/file-repository/nics_firearm_checks_-_month_year.pdf/view. This expedited FOIA request seeks information in addition to the figures released in this report.
4 The "default proceed" period is also known as the Brady Transaction" period.
Case 1:21-cv-00166 Document 1-3 Filed 01/19/21 Page 3 of 11 July 21, 2020 Page 2 Weil, Gotshal & Manges LLP background checks that were denied on each business day following the expiration of the "default proceed" period;
- 4.
Any and all documents indicating the number of delayed background checks that were proceeded following the expiration of the "default proceed" period, and, separately, any and all documents indicating the number of background checks that were denied following the expiration of the "default proceed" period;
- 5.
Any and all documents related to the number of NICS examiners conducting background checks during the COVID-19 pandemic, including any and all documents regarding how those numbers compare to the number of NICS examiners conducting background before the COVID-19 pandemic;
- 6.
Any and all documents related to that number of NICS examiners who are unable to work for any period of time as a result of the COVID-19 pandemic, the reason for their absence, and the length of their absence;
- 7.
Any and all documents related to guidance or flexible work arrangements provided to NICS examiners and the percentage of NICS examiners who are using a flexible work anangement; and
- 8.
Any and all documents explaining or describing the policies, procedures, or other guidance provided to NICS examiners by the FBI, including any new or additional processes and procedures, during the COVID-19 pandemic.
BASIS FOR EXPEDITED REQUEST I.
Increased gun sales during the COVID-19 pandemic is a matter of widespread media interest that raises questions about the government's ability to respond.
This request qualifies for expedited processing because the FBI' s handling of the dramatic increase in gun sales during the COVID-19 pandemic is a "matter of widespread... media interest."5 "Neither FOIA nor [DOJ] regulations require the requester to prove wrongdoing by the government in order to obtain documents on an expedited basis."6 Rather, "[t]he request must simply provide grounds to suppo1t the contention that the matter is time sensitive" and that "there exist possible questions about the government's integrity that affect public confidence. "7 This is because FOIA protects the right of the public "to know 'what their Government is up to. "'8 The American public is already clearly deeply concerned about the sharp increase in gun purchases within the span of just one month during the 5 28 C.F.R. § 16.5(e)( l)(iv).
6 Citizenf for Responsibility & Ethics in Wash. v. Dep 't of Justice, No. 19-1552 (ABJ), 2020 WL 5 L5884, at *6 (D.D.C. Jan.
31, 2020).
7 Id. (citing 28 C.F.R. § 16.5(e)(l)(iv)) (emphasis Judge Jackson's).
8 Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004) (quoting Dep't r4 Justice v. Reporters Comm.for Freedom of the Press, 489 U.S. 749,773 (1989)).
Case 1:21-cv-00166 Document 1-3 Filed 01/19/21 Page 4 of 11 July 21, 2020 Page 3 Weil, Gotshal & Manges LLP COVID-19 pandemic. Indeed, there have been over 5,900 news articles on the shocking increase in gun sales during the COVID-19 pandemic. 9 This dramatic number of news articles indicates that the public's confidence in the integrity of the NICS process and the ability of NICS to process the additional background checks in a timely manner is in question.
Not only is the news media interested in the rise in gun sales during the COVID-19 pandemic, Congress also shares the concern of the public and the Brady Center. Citing "coronavirus-related anxiety," sixteen Democratic Senators wrote to FBI Director Wray and Acting Bureau of Alcohol, Tobacco, Firearms & Explosives ("ATF") Director Lombardo on April 2, 2020, urging them to "take appropriate steps to promote public safety and responsible firearm ownership in the wake of surging gun sales across the country." 10 The Senators' letter explains that if a background check for a particular individual "is not completed within three business days," federal fireaims licensees "may choose to transfer the gun(s) to that individual anyway in what is known as a 'default proceed."' 11 Indeed, this congressional concern is bipartisan. A separate group of twenty-eight Republican Senators wrote to 9 See, e.g., Stephanje Pagones, Gun sales break May record amid coronavirus riots, Fox Bus. (Jun. 2, 2020); Max Matza, How the coronavirus led to the highest-ever spike in US gun sales, BBC (Apr. 6, 2020); Thomas Kika, Coronavirus Economy: Gun Sales Hit Record High Despite Wall Street Downturn, Job Losses, lNT'L Bus. TIMES NEWS (Apr. 5, 2020);
Anna Giaritelli, Fear of coronavirus chaos drives gun purchases.for se(f-defense, THE EXAMINER (Apr. 5, 2020); Gun Sales in US Breaks 20-Year Record After Declared as Evsential Commodity Amid COVID-19 Lockdown, Over 3. 7 Million Guns Sold in March 2020, LATESTLY (Apr. 4, 2020); Lihesa McCormick, Gun sales continue to climb in Missouri and Kansas amid COVID-19 pandemic, Fox-4 WDAF (Apr. 3, 2020); Maya Prabhu, DIGGING DEEPER: Georgia law bars limiting of gun sales during pandemic, THE ATLANTA-JOURNAL CONST. (Apr. 3, 2020); Kathy Cunan, Gun sales soar in mass. amid coronavirus pandemic, WCVB 5 (Apr. 3, 2020); Gun sales surge 85 percent, Fox 5 N.Y. (Apr. 3, 2020); Xander Landen, Vennont gun background checks hit record high in March, VTDIGGER (Apr. 3, 2020); Matt Bise, Pandemic gun sales: "I've never been picked clean like this. It's sca,y. ", POST & COURIER (Apr. 2, 2020); Anna Giaritelli, FBI performs record number of gun sale background checks in March as coronavirus rages, THE EXAMlNER (Apr. 2, 2020); Keith Collins and David Yaffe-Bellany, About 2 Million Guns Were Sold in the U.S. as Virus Fears Spread, N.Y. TIMES (Apr. 2, 2020); Danny Hakim, Ailing N.R.A. Finds New Rallying Cry: Keep Gun Shops Open, N.Y. TIMES (Apr. 2, 2020); Hayley Miller, FBI Reports Staggering 3.7 Million Firearm Backgrourul Checks in March, HUFFPO (Apr. 2, 2020); Josh Campbell, FBI sees spike in gun sale background checks amid coronavirus pandemic, CNN (Apr. 2, 2020); Zusha Elinson, Gun Background Checks Hit Record in March, Sparked by Coronavirus Fears; The proxy for firearm sales hit an all-time high as Americans wony about social breakdown and prisoner releases, WALL STREET JOURNAL (Apr. 2, 2020); Zachary Petrizzo, Coronavirus Spurs Historic Buying Spree of 2 Million Guns, MEDIAITE (Apr. 2, 2020); Stephen Dinan, Gun sales up 85% in March amid coronavirus fears, THE WASH. TIMES (Apr. 2, 2020); Lisa Marie Pane, Gun background checks smash records amid coronavirus fears, AP NEWS (Apr. J, 2020); Everytown, Moms Demand Action Respond to New FBI Data Showing Increase in Background Checks, MOMS DEMAND ACTION (Apr. I., 2020); Tyler Vazquez, Coronavirus: Fear drive 'unprecedented' gun and ammunition sales in Brevard County, FLORIDA TODAY (Mar. 25, 2020); Kurtis Lee and Anita Chabria, As the coronavirus pandemic grows, gun sales are surging in many states, L.A. TIMES (Mar. 16, 2020); Richard A. Oppel Jr., For Some Buyers With Virus Fears, the Priority Isn't Toilet Paper. It's Guns., N.Y. TIMES (Mar. J 6, 2020).
10 Letter from Senators Markey, Blumenthal, Murphy, et al., to Hon. Christopher Wray, Dir. FBI, and Hon. Regina Lombardo, Acting Dir. ATF (Apr. 2, 2020) (hereinafter "Markey Letter"), available at https: //w ww. markey.senate.gov /download/fui-atf-letter-on-sw-ging-gun-sales.
11 Id. at 1.
Case 1:21-cv-00166 Document 1-3 Filed 01/19/21 Page 5 of 11 July 21, 2020 Page4 Weil, Gotshal & Manges LLP Director Wray and Director Lombardo on May 5, 2020, "seeking additional information on the impact the coronavirus has had on your agencies and the firearm transfer process." 12 Like the Brady Center, the Senators worry that "the coronavirus pandemic could overwhelm NICS and allow prohibited individuals to obtain firearms through 'default proceeds."' 13 Furthermore, the Brady Center understands that the House Judiciary Committee may have already sent a similar letter to the FBI. The extensive reporting by the media and the attention of both houses of Congress to this issue clearly demonstrates that this is a matter of pressing public concern. Therefore, the Brady Center is entitled to have this request processed on an expedited basis.
II.
Failure to expedite processing of this request could pose an imminent threat to the life or physical safety of an individual.
This request also qualifies for expedited processing under 5 U.S.C. § 552(a)(6)(E) and 28 C.F.R.
§ 16.5(e). The Brady Center seeks information related to NICS background checks during the COVID-19 pandemic national emergency as soon as possible because the dramatic increase in gun purchases poses an imminent threat to the public. 14 The FBI' s own statistics on monthly background checks-a proxy for gun sales-indicate that the number of gun sales have dramatically increased from last year's figures. 15 In the first six months of 2020, there have been over 19,000,000 background checks, an increase of 5,300,000 from the same period last year. 16 These monthly comparisons between 2019 and 2020 are both striking and alarming:
Over 745,000 more checks in February 2020 than February 2019 (a 36 percent increase);
At least 1,000,000 more checks in March 2020 than in March 2019 (a 41 percent increase);
At least 575,000 more checks in April 2020 than in April 2019 (a 25 percent increase);
At least 740,000 more checks in May 2020 than in May 2019 (a 32 percent increase); and At least 1,615,000 more checks in June 2020 than in June 2019 (a 70 percent increase).
The graph below illustrates the impact of COVID-19 on gun sales.
12 Letter from Senators Capito, Cornyn, Cruz, et al., to Hon. Christopher Wray, Dir. FBI, and Hon. Regina Lombardo, Acting Dir. ATF (May 5, 2020), available at https://www.capito.senate.gov/download/05-04-2020-capito-nics-covid-letter.
13 Markey Letter, supra note 9, at 2.
14 28 C.F.R. § 16.S(e)l)(i).
15 NICS Firearm Background Checks, Federal Bureau of Investigation, available at https://www.fbi.gov/file-repository /nics_firearm_ checks_ -_month_year. pdf/vie w.
16 ld.
July 21, 2020 Page 5 Case 1:21-cv-00166 Document 1-3 Filed 01/19/21 Page 6 of 11 4,500,000 4,000,000 3,500,000 3,000,000 2,500,000 2,000,000 1,500,000 Weil, Gotshal & Manges LLP NICS Firearm Backgound Checks Per Month Feb Mar Apr May
~2019 2020 June If NICS is unable to timely process each background check, many more guns could fall into the hands of prohibited purchasers who would, under normal circumstances, be deemed ineligible to possess a gun due to the risk they pose to themselves and others. 17 This could occur under the "default proceed" process, where gun purchases effectively can be approved for potentially dangerous individuals who are legally prohibited from possessing a gun. While most background checks are completed in a matter of minutes, NICS sometimes needs to contact local law enforcement personnel to examine additional records. 18 COVID-19 and the growing civil unrest and protests around the country are undoubtedly making it more difficult for local law enforcement agencies to provide NICS examiners with the requested information on a timely basis. In the case of a firearm procured unlawfully through a "default proceed," the firearm would remain in the possession of the prohibited purchaser until the NICS is able to provide final disposition of the prohibited purchaser's background check and ATF is able to retrieve the firearm. While the unprecedented COVID-19 pandemic in still ongoing, this process may take months-or even years-longer than it normally would. ATF's National Tracing Center is already short-staffed, and A TF' s own data show that it often takes law enforcement years to retrieve guns under nmmal circumstances. 19 17 The Gun Control Act of 1968, codified at 18 U.S.C. § 920, et seq., for instance, prohibits the sale to, and possession of firearms by, a person who, among other thjngs, has (i) been found to have harassed, stalked, or threatened an intimate partner or family member such that the victim has been placed in a reasonable fear of bodily injury; (ii) has been convicted of an offense of domestic violence; (iii) has been convicted of a serious crime, including a crime of violence; (iv) has been found to be a danger to themselves or others.
18 See WTLLIAM J. KROUSE, CONG. RESEARCH SERV., R45970, GUN CONTROL: NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM (NICS) OPERATIONS AND RELATED LEGISLATION 30-31 (2019).
19 Dan Frosch and Zusha Elinson, Armed and Dangerous: How the ATF Retrieves Guns from Banned Buyers, W ALL STREET JOURNAL (Feb. 19, 2019); ATF: NTC Firearms Trace Data-2018, available at https://www.atf.gov/resow-ce-
Case 1:21-cv-00166 Document 1-3 Filed 01/19/21 Page 7 of 11 July 21, 2020 Page 6 Weil, Gotshal & Manges LLP This sudden, sharp increase in sales is not only alarming and taxing on NICS and the A TF' s limited recovery resources, but it is also life threatening. Even one gun falling into the wrong hands could threaten the safety of another, as "default proceed" sales are eight times more likely to involve a prohibited purchaser than other sales.20 This is not mere conjecture. A recent UC Davis Violence Prevention Program report states that the "2.1 million additional fuearms purchased from March through May 2020... represents a 64% increase over the expected volume of purchases."21 The spike in firearms purchases is an imminent threat to the life or physical safety of potentially hundreds of people, as the study calculates, controlling for the effects of COVID-19 common to all states, "an almost 8%
increase in firearm violence, or 776 more injuries than expected in March through May in the U.S. had no spike in firearm purchases occurred."22 Therefore, the Brady Center is entitled to have this request processed on an expedited basis because, as the data indicates, a "failure to obtain an expedited FOIA response" on the above matters
"'could reasonably be expected to pose an imminent threat to the life or physical safety of an individual."'23 Indeed, the State Department recently recognized that a FOIA request for information regarding the use of three-dimensional printers to create guns similarly satisfied this "imminent threat" standard for expedited processing because the documents were "necessary to ensuring the physical safety" of the public. 24 The nexus of the imminent harm is even closer in this present request. It is logical that the skyrocketing demand for guns coupled with the uncertainty in the ability of NICS examiners to complete background checks in time will likely result in even more firearms falling into the hands of prohibited purchasers.
III.
The Brady Center urgently seeks to inform the public about government's ability to perform background checks during the COVID-19 pandemic.
Finally, the Brady Center's request qualifies for expedited processing because the Brady Center is "primarily engaged in disseminating information" and seeks to "urgent[ly] inform the public about an center/firearms-trace-data-2018. See also OFFICE OF THE INSPECTOR GEN., DEP'T OF JUSTICE, REVIEW OF THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES' ENFORCEMENT OF BRADY ACT VIOLATIONS IDENTIFIED THROUGH THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM 17 (2004), available at https:/ /oig.justice.gov/reports/ ATF/e0406/exec.htm.
20 See FIXING THE DEFAULT PROCEED FLA w, GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE (2017); see also Letter from Thomas E. Bush, lll, Assistant Director, CJIS Division, FBI, to Michael R. Bloomberg, Mayor ofN.Y.C. (Oct. 21, 2008), available at http://everytown.org/documents/20 l 6/10/2008_ l 0_21 -fbi-letter.pdf.
21 UC Davis Health, Firearm purchasing during pademic's onset Linked to higher rates of firearm violence in U.S. (July 6, 2020), available at https://health.ucdavis.edu/health-news/newsroom/surge-in-firearm-purchasing-during-pandemics-onset-lin ked-to-h i gher-rates-of-firearm-violence-i n-us-/2020/07.
22 ld.
23 Hajro v. U.S.C.l.S., 832 F. Supp. 2d l095, 1115 (N.D. Cal. 2016), rev'd on other grounds, 81 I F.3d l086 (9th Cir. 2016)
(quoting 28 C.F. R. § 16.5( e)( I )(i)).
24 Compl., ECF No. 1, <jf 24 & Ex. H, Brady Ctr. to Prevent Gun Violence v. Dep't of State, No. 18-cv-03007-JEB (D.D.C.
Dec. 19, 2018).
Case 1:21-cv-00166 Document 1-3 Filed 01/19/21 Page 8 of 11 July 21, 2020 Page 7 Weil, Gotshal & Manges LLP actual or alleged Federal Government activity."25 The Brady Center publishes comprehensive reports based on records obtained via its FOIA requests, which in turn often generate substantial media coverage. For instance, a Brady Center FOIA request uncovered that the National Rifle Association's gun lobbyists helped author an ATF white paper on how the Trump Administration planned to reduce regulations on assault weapons, silencers, and gun dealers. 26 This Brady Center report led to widespread reporting. 27 Publishing information "need not be [ the organization's] sole occupation"28 in order to qualify for expedited processing of a FOIA request on this basis. Just as Protect Democracy, in Protect Democracy Proj. v. Dep't of Defense, intended "to disseminate the information obtained" and "to inform public understanding on operations and activities of the government" by "gather[ing] and disseminat[ing] information that is likely to contribute significantly to the public understanding of executive branch operations and activities,"29 the Brady Center intends to do the same here, as it did with its reporting on the ATF white paper. 30 "The standard of ' urgency to inform' requires that the information requested should pertain to a matter of a current exigency to the American public and that a reasonable person might conclude that the consequences of delaying a response to a FOIA request would compromise a significant recognized interest." 31 Courts have established a three-part test to meet this standard. The court asks "(1) whether the request concerns a matter of current exigency to the American public; (2) whether the consequences of delaying a response would compromise a significant recognized interest; and (3) whether the request concerns federal government activity."32 As evidenced by the incredible media and congressional interest regarding the increase in gun sales during COVID-19 and the government's ability to process the increased number of requests, "the subject matter of the request" is "central to a pressing issue of the day."33 Indeed, the "current exigency" of COVID-19, compounded by the additional strain on law 25 28 C.F.R. § I 6.5(e)(l)(ii); see also 5 U.S.C. § 552(a)(6)(E)(v)(II).
26 Brady Center to Prevent Gun Violence, Brady Center FOIA Litigation Forces Release of Secret ATF Documents Regarding Gun Lobby Influence of Federal Gun Policy (Feb. 13, 2018), available at https://www.bradyunited.org/press-releases/brady-center-foia-litigation-forces-release-of-secret-atf-documents-regarding-gun-lobby-influence-of-federal-gun-policy.
27 See, e.g., Ali Watkins, How the N.R.A. Keeps Federal Cun Regulators in Check, N.Y. T IMES (Feb. 22, 2018); Josh Pagliery, Exclusive: Cun lobbyist helped write ATF official's proposal to deregulate, CNN INVESTIGATES (Feb. 14, 2018);
Khorri Atkinson, Report: Cun lobbyist helped write ATF deregu.lation memo, Axios (Feb. 14, 2018); Alison R. Parker, Cun safety group exposes secret NRA lobbyist behind Trump's ATF memo, AMERICAN INDEPENDENT (Feb. 13, 2018).
28 Protect Democracy Proj., Inc. v. Dep't of Def, 263 F. Supp. 3d 293,298 (D.D.C. 2017) (quoting Landmark Legal Found.
- v. E.P.A., 9l0 F. Supp. 2d, 270, 276 (D.D.C. 2012)).
29 Id.
30 See also Ctr. for Pub. Integrity v. Dep't of Def, 411 F. Supp. 3d 5, 11 (D.D.C. 2019) (finding plaintiff "primarily engaged in disseminating information" because it intended "to produce one or more original investigative reports based on the analysis of the requested information").
31 H.R. Rep. No. 104-795, at 26 (1996).
32 Al-Fayed v. C.I.A., 254 F.3d 300,310 (D.C. Cir. 2001).
33 Wadleton v. Dep'tofState, 941 F. Supp. 2d 120, 123 (D.D.C. 2013).
Case 1:21-cv-00166 Document 1-3 Filed 01/19/21 Page 9 of 11 July 21, 2020 Page 8 Weil, Gotshal & Manges LLP enforcement as a result of the growing civil unrest and protests sweeping the nation, establishes a "substantial interest, either on the part of the American public or the media." 34 The analogous regulations promulgated by the Departments of Defense and State are instructive.
"The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an 'urgency to inform' the public on a topic." 35 Furthermore, the consequences of delaying response would compromise a significant recognized interest because if production is unduly delayed both the Brady Center and the public at large will be "precluded... from obtaining in a timely fashion information vital to the current and ongoing debate surrounding" public safety, gun sales, and government action during COVID-19. 36 "Being closed off from such a debate is itself a harm to open democracy."37 But there is another potential harm too: the possibility of someone who should never have been allowed to purchase a gun using it against another person. "By then, any damage will have been done. "38 In short, the Brady Center has demonstrated an urgency to inform the public.
FORMAT AND PRODUCTION REQUESTS The term "document" shall mean all of the following, without limitation and by way of description: (a) all printed materials of every kind whatsoever; (b) all handwritten materials of every kind whatsoever; ( c) all materials in electronic media regardless of the forms of such media, including emails; (d) all drafts of subject documents; (e) alJ documents referenced in subject documents, including those noted as exhibits and attachments, as well as those referenced in the bodies of subject documents or in footnotes to subject documents; (f) all documents, otherwise identified, but containing marginal or other annotations, handwritten or otherwise; (g) all documents in the form of transcripts of meetings and telephone conversations and memoranda of such meetings and telephone conversations, whether printed or handwritten; (h) to the extent not covered by the definitions in (a)-(g), all materials generated by or received by any government employee, consultant or other person having any relationship to the government; (i) to the extent not covered by the definitions in (a)- (h), all materials generated by any person not in the employ of the government, including but not limited to lawyers, foreign government officials of every level, other interested parties and non-parties to any communications on any relevant subject.
Responsive documents are requested to be produced in their entirety, including all attachments, enclosures, and exhibits. FOIA regulations provide that, if some parts of records containing the requested information fall within the statutory exemptions to mandatory disclosure, the non-exempt 34 Al-Fayed, 254 F.3d at 310.
35 32 C.F.R. § 286.8(e)(3) (Defense); accord 22 C.F.R. § 17 l.l I (State).
36 Protect Denwcracy Proj., 263 F. Supp. 3d at 299.
31 See Elec. Frontier Found. v. Office of Dir. of Nat. Intelligence, 2007 WL 420831 1, at *7 (N.D. Cal. Nov. 27, 2007)
("[O]ngoing public and congressional debates about issues of vital national importance cannot be restarted or wound back.").
38 Protect Denwcracy Prqj. 263 F. Supp. 3d at 300; see also Payne Enterprises, Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) ("[S)tale information is of little value.").
Case 1:21-cv-00166 Document 1-3 Filed 01/19/21 Page 10 of 11 July 21, 2020 Page 9 Weil, Gotshal & Manges LLP material shall be disclosed after the exempt material has been deleted. 39 Accordingly, if FBI determines that some portion of a record that is otherwise responsive to this request is exempt, we request that FBI provide a copy of all reasonably segregable, non-exempt portions of the record. If the requested records are not in the possession of FBI or its agents, we request that FBI identify all federal agencies and/or other individuals and entities believed to possess such documents. To the extent that FBI detelmines that any subject document cannot be disclosed, we request that such documents be identified in accordance with Vaughn v. Rosen, 523 F.2d 1136.
The Brady Center further requests that, pursuant to 5 U.S.C. § 522(a)(3)(B), the FBI produce responsive documents in the native electronic format in which the document was created. To the extent that the FBI is unable to produce the responsive documents in the requested format, the Brady Center requests confirmation that the record does not exist in native format and production of the documents in the following format, listed in order of the Brady Center's preference: (1) PDF format or (2) paper copy.
The Brady Center requests that the FBI produce these documents within twenty (20) working days as required by FOIA. Additionally, in accordance with Section 7 of the OPEN Government Act of 2007, Pub. L. No. 110-175, and pursuant to Attorney General Holder's FOIA Memorandum of March 19, 2009, the Brady Center requests that the FBI provide the individualized tracking number associated with this request should the request take longer than 10 days to process.
FEE WAIVER REQUEST Pursuant to 31 C.F.R. § l.7(d), this request qualifies for a fee waiver because the requested information will be used for a public interest purpose and not for commercial purposes. The Brady Center is a 501(c)(3) non-profit dedicated to creating a safer America by cutting gun deaths in half by 2025. The requested information will be used to educate the public and further this goal. In the past, federal agencies have granted the Brady Center (previously known as the Center to Prevent Handgun Violence) a fee waiver under like circumstances.40 The Brady Center appreciates your prompt consideration of this request. If you have any questions, or if the Brady Center can be of any assistance in expediting this request, please contact us using the information in the signature blocks below.
39 See 5 U.S.C. § 522(b); 28 C.P.R. § 16.6.
40 See, e.g., Center to Prevent Handgun Violence v. Dep't of the Treaswy, 49 F.Supp.2d 3, 5 (D.D.C. 1999) (acknowledging the Bureau of Alcohol, Tobacco, Firearms and Explosives's past grant of a fee waiver to the Brady Center for a similar request of government records).
Case 1:21-cv-00166 Document 1-3 Filed 01/19/21 Page 11 of 11 July 21, 2020 Page 10 cc:
Joshua Scharff Tess Pardon Kayleigh Golish Alex Walsh Amarna Rasani John Lapin Weil, Gotshal & Manges LLP Sincerely, By:
/s/ Holly E. Loiseau Holly E. Loiseau WEIL, GOTSHAL & MANGES LLP 2001 M Street, NW Suite 600 Washington, DC 20036 T: (202) 682-7144 Holly.Loiseau@Weil.com Attorney for The Brady Center to Prevent Gun Violence.
Case 1:21-cv-00166 Document 1-4 Filed 01/19/21 Page 1 of 6 EXHIBITD
Case 1:21-cv-00166 Document 1-4 Filed 01/19/21 Page 2 of 6 Seeking record~ sufficient to shl)w the following data, ()n an annual bit'li~. for eacb calendar year from 2000 to 2018:
- 1.
Tite number offederal NICS transactions that received an immediate response.
Year Totals 2000 3,084,398 2001 3,146,829 2002 3.472,061 2003 4,087.5 14 2004 4.288,2!0 2005 4.523.780 2006 4,816,683 2007 4,705,505 2008 5,334, I 35 2009 5,572,720 2010 5.489,892 2011 6.254,374 2012 7,934,976 2013 8.497,353 2014 7,477,549 2015 8,083,046 2016 8,306,584 2017 7,648.423 2018 7,309,648 Note: TI1e totals above do not include the immediate response of "delayed" listed in le.
- a. The number offederal NICS transactions that received an inuuediate response of"proceed."
Year Totals 2000 3.008.468 2001 3.073.921 2002 3.404.780 2003 4.014.739 2004 4.233.2 11 2005 4.476.809 2006 4,771.494 2007 4,662.435 2008 5.290.003 2009 5.532.719 2010 5,448.435 2011 6.210. 169 2012 7.885.241 2013 8,448.926 2014 7,431.806 2015 8,034.005 2016 8.256.829 2017 7.600.259 2018 7.259,714 Page 1 of 3
Case 1:21-cv-00166 Document 1-4 Filed 01/19/21 Page 3 of 6
- b. The number of federal NlCS transactions that received an immediate response of "denied,"broken down by the applicable federal prolubited category / reason for the denial Year Totals 2000-2002 Not available 2003 18.468 2004 18,55 1 2005 19.796 2006 21.755 2007 22,805 2008 25,904 2009 23,9 18 2010 25.472 2011 28.474 2012 32.433 2013 32,080 2014 33,032 2015 38,966 2016 40,9 14 2017 41,610 2018 44,094 Note: The reason for denial is not maintained on immediate response denial counts.
- c. The number of federal NlCS transactions that received an i1nmediate response of "delayed."
Year Totals 2000 1,175,872 2001 1,145 097 2002 776,832 2003 375 287 2004 396,808 2005 428,859 2006 446,069 2007 431,378 2008 479,ll4 2009 510,708 20IO 547.502 201 l 621 25J 2012 790,449 2013 818,610 2014 779,139 2015 890,492 2016 1,054,249 2017 989,823 2018 925,694
- 2.
TI1e number of delayed federal NlCS transactions resolved within three business days.
- a. TI1e number of delayed federal NlCS transactions resolved within three business days with a response of "proceed."
- b. The number of delayed federal NlCS transactions resolved within tluee business days with a response of "denied."broken down by the applicable federal prohibited category/ rc.ason for the denial Note: This infonnation is not available.
Page 2 of 3
Case 1:21-cv-00166 Document 1-4 Filed 01/19/21 Page 4 of 6
- 3.
TI1e total munber offederaJ NICS transactions that remained delayed past three business days.
Year Totals 2000-2013 Not available 2014 228,006 2015 271,359 2016 303,146 2017 310.232 201.8 275,879
- a. The total 1mmber of federal NICS transactions that remained delayed past three business days and ultimately received a "proceed "response.
Note: Th.is infonnation is not available.
- b. The total number of federal NlCS transactions that remained delayed past three business days and ultimately received a "den.ied"response. broken down by the applicable federal prohibited category / reason for the denial.
Note: This infonnation is not available.
- 4.
TI1e n b
ffi d 1 NICS um ero e era ed muesolved at 90 days.
transact.10 ns purJ' Year Totals 2000-2013 Not available 2014 172,879 2015 200,360 2016 216.744 2017 212,617 2018 201,323 Seeking records sufficient to show the following data for calendar year 2019:
- 5.
T11e total munber of federal NICS transactions.
I 20~car I
T;~~.732 I
- a. The number of federal NlCS transactfons that received a "proceed" response.
I Year I
Totals I
- 019 7,763.319
- b. The number of federal NlCS transactions that received a "denied" response.
I Year I
Totals I
- 019
!03,592 Page 3 of 3
Case 1:21-cv-00166 Document 1-4 Filed 01/19/21 Page 5 of 6 Seeking records sufficient to sbow the folJowing data, on a monthly basis, from January to March 2019 and January to March 2020:
I. TI1e total number offederal NICS transactions.
Month 2019 2020 Januaiv 586.144 721,803 Febrnarv 685,840 789,840 March 823.273 1,462,536
- a. TI1e number of federal NICS transactions that received a "proceed" response.
Mont11 2019 2020 Januruv 557,604 686,13 1 Febrnarv 643,894 739,217 March 774,918 1.,327,205 b The number of federal NICS UID1.sactions tltat received a "denied" response.
Month 2019 2020 Januarv 7.463 8.627 FebrnatY 8.249 9,738 March 9,558 23.692
- 2.
TI1e number of federal NICS transactions that received an immediate response.
Month 2019 2020 Januaiy 526.382 633.630 Febrnruv 61 Ll lO 703.718 March 731.125 I., 163.545 Note: TI1e totals above do 1101 include the immediate response of "delayed" listed in 2c.
a The number of federal NICS trdllsactions tliat received an inuuediate response of "proceed."
Month 2019 2020 Januarv 522,853 629.427 Febrnruv 606,523 698.402 March 725,550 U53.073
- b. The number offed era! NICS trdllsactions tltat received an iuunediate response of "denied,"broken down by tile applicable federal prolubited categoty / reason for the denial.
Mont11 2019 2020 Januarv 3,16 1 3,736 Februarv 4,113 4,807 March 5,029 9,676 Note: TI1e reason for denial is not maintained on immediate response denial counts.
- c. TI1e number of federal NfCS transactions that received an immediate response of "delayed."
Montlt 2019 2020 Januarv 59,742 88,173 Februarv 74,726 86,122 March 92, 144 298.991 Page 1 of 2
Case 1:21-cv-00166 Document 1-4 Filed 01/19/21 Page 6 of 6
- 3.
TI1e number of delayed federal NICS trnusactious resolved within tluee business days.
- a. The number of delayed federal NICS transactions resolved with.in tluee business days wit.11 a response of "proceed."
- b. The number of delayed federal NICS transactions resolved witlJ.in tluee business days wit.11 a response of "den.ied,"broken down by tl1e applicable federal prohibited categocy / reason for the denial Note: Th.is information is not available.
- 4.
The to 1 ta mun ero e
b ffed ral NICS um1sact1ons iat remame e
tl
- d d la ed past tluee business days.
Mont.11 2019 2020 January 18,624 20,759 Februarv 23,281 26,149 March 28,089 76,558
- a. The total number of federal NICS transactions that remained delayed past tluee business days m1d ultimately received a "proceed "response.
Note: This infonnation is not available.
- b. TI1e total number of federal NlCS transactions tliat remained delayed past three business days and ultimately received a "den.ied"response, broken down by tlle applicable federal prob.ibited category / reason for tl1e denial.
Note: TI1is infom1ation is not available.
- 5.
TI1e n b
f 6 d I N CS um ero :e era I
ed transacuons ouri
- unreso ve al I d 90 days.
Montll 2019 2020 Janua1v I 5.009 16,686 Febrnarv 18,4 11 20.396 March 21.661 Unavailable Note: March 2020 was unavailable at tJ1e time of tlti.s response.
Page 2 of 2
Case 1:21-cv-00166 Document 1-5 Filed 01/19/21 Page 1 of 3 EXHIBITE
Case 1:21-cv-00166 Document 1-5 Filed 01/19/21 Page 2 of 3 Spiking U.S. gun sales deluge FBl's background check system, cause delays reuters.com/article/usa-guns-fbi/si:.1iking.:!J:§:gun-sales-deluge-fbis-background-check-sY.stem-cause-delaY.s-idUSLBN2GB5RA AMERS Updated By Brad Brooks 3Min Read (Reuters) - A surge in people buying guns since the coronavirus pandemic began has flooded the FBI's background check system, causing a spike in the number of delayed checks and allowing gun sales to proceed without them, FBI data disclosed on Tuesday showed.
FILE PHOTO: A member of the U.S. Congress wears a "Background Checks Save Lives" sticker during a news conference announcing the introduction of "bipartisan legislation to expand background checks for sales and transfers of firearms" on Capitol Hill in Washington, U.S., January 8, 2019. REUTERS/Jonathan Ernst/File Photo Gun control advocacy group Everytown for Gun Safety obtained FBI data through a Freedom of Information Act request.
There has been a 54% increase in the number of background checks that were delayed past three days in the March through July period, as compared with the same time last year, the data shows.
More than 5% of the 5.86 million background checks conducted during those months this year were delayed past three business days, it showed.
More Americans are trying to buy guns than ever, according to FBI data. The bureau conducted 93% more background checks in that March through July period this year as compared with the same period the previous year, when it conducted 3.03 million checks.
Background checks may have become more difficult to complete as state law enforcement and other government agencies housing records may have been closed or slower in replying to FBI requests because of the pandemic's impact on staffing, said Rob Wilcox, deputy director of policy at Everytown.
If an FBI background check takes longer than three business days, a gun dealer can sell the firearm to a buyer, under current regulations.
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Case 1:21-cv-00166 Document 1-5 Filed 01/19/21 Page 3 of 3 That worries groups like Everytown because it means thousands of people prohibited by law from owning guns - such as most convicted felons - may have obtained them as the FBI background check was delayed.
"They should have allocated the people and resources needed to conduct these background checks," said Wilcox.
The FBI did not immediately respond to a request for comment. When asked in April about the spike in background checks caused by increased gun sales, the FBI said its system was "operational and will continue to process requests."
U.S. gun sales have soared this year, sparked by fears of social unrest because of the pandemic, violence seen on the streets of American cities during protests for racial justice, and the turbulence over the presidential election.
Reporting by Brad Brooks in Lubbock, Texas; Editing by Bill Tarrant and Timothy Gardner Our Standards: The Thomson Reuters Trust Principles.
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