OMB Letter Regarding Definiton of Earmarks

8/11/2019 OMB Letter Regarding Definiton of Earmarks

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Matthew J.B. Lawrence

Trial Attorney

April 24, 2013

Marie

A

Connelly

1919 Pennsylvania Ave, NW

Washington, D.C. 20006

U.S. Department of Justice

Civil Division, Federal Programs Branch

Via First-Class Mail

P.O. Box 883, Rm. 920

Washington, DC 20044

Via Overnight Delivery

20 Massachusetts Ave. N.W., Rm. 7336

Washington, DC 20001

Tel: 202/305-074 7

Fax: 202/616-8202

Re: Cause of Action

v.

Zients, et al.,

No.

12-0379 (D.D.C.)

Dear Ms. Connelly:

In your letter

of

April

11

2013, you requested I answer three questions about the OMB's

search for records responsive to your FOIA request, two

of

which you had asked previously in your

letter

of

January

15

2013. I understood my letter

of

February 15,2013 to have answered those two

questions, but in your recent letter you state that it did not

do

so. I hope that the responses below

to

all

three

of

the questions asked in your April 11, 2013 letter resolve the confusion, but am standing by to

talk further in hopes

of

demonstrating to you that the agency's search for responsive records was not

just adequate but exemplary.

1. Did any OMB component limit its search to documents containing the term earmark ?

Please allow me

to

reframe your question as Did any OMB employee limit his or her search

for responsive records to records containing the

tenn

'earmark'? This reframing

is

necessary because

Cause

of

Action did not direct its FOIA request

to

any particular component, rather it sought records

throughout the OMB, and the

OMB s

Office of General Counsel ( OGC ) did not believe that any one

component would be likely to possess all records responsive to your FOIA request. Similarly,

it

was

not possible to search for responsive records using a single central database, because the OMB does

not have such a database likely to contain all potentially responsive records. As a result, the agency

sent the FOIA request to several dozen agency employees who the OGC detennined, through a

rigorous process, were reasonably likely to possess responsive records (or supervise those who did).

(Jonathan

Rackoffs

e-mail

ofNovember

29, 2012 explained the specific process by which document

custodians were selected.) Those employees provided several thousand pages

of

potentially

responsive records, which the OGC further reviewed for responsiveness before making the

OMB s

production.

Sore-framed, the answer

is

that yes, probably, one or more OMB employees limited his or her

physical search for responsive records to records including the term earmark. The OGC specifically

selected employees likely to have knowledge or control

of

responsive records, and sent them the text

of

Cause

of

Action's FOIA request with instructions

to

provide all records responsive

to

it

from their

files. While custodians were told to err on the side

of

over--inclusion, the Office

of

General Counsel

did not instruct them to use any particular search terms. Rather, that possibility was rejected because


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it was not clear how to design a targeted search involving unifonn tenns that would be equally

applicable across branches and reasonably likely

to

identify responsive documents. Instead, the

detennination how

to

search for responsive records in each employee's possession (or Branch, in the

case

of

the 36 subject matter Branch Chiefs asked

to

provide responsive records) was left to that

employee. As a result, it is possible- and in light

of

questions that OGC received, likely- that one or

more employees, upon receiving the text

of

Cause

of

Action's request, did not have specific

knowledge

of

any responsive files but attempted nonetheless

to

respond to OGC's request by

searching their files for records including the term earmark.

I am not in a position to provide you a more specific response. The OMB was not obligated

under the FOIA to ask individual document custodians not only to provide records responsive to

Cause

of

Action's FOIA request but also to provide to OGC precise documentation about the method

by which

he

or she went about complying with that request. See Perry

v.

Block, 684 F.2d 121, 127

(D.C. Cir. 1982) (agency need not set forth with meticulous documentation the details of-an epic

search for the requested records affidavits that explain in reasonable detail the scope and method

of

the search conducted by the agency will suffice

to

demonstrate compliance with the obligations

imposed by the FOIA ); Citizens for Responsibility and Ethics in Washington

v. Dep't of

Justice, 535

F. Supp. 2d 157, 162 (D.D.C. 2008) (rejecting argument that agency's explanation

of

search was

inadequate because agency did not specify what terms current employees used in searching for

responsive records ). Because doing so would have made more burdensome the agency's diligent and

thorough search for records responsive to Cause

of

Action's request, the OMB opted not to request

such documentation.

2

OMB has at least two different definitions o earmark, the definition in E.O. 13457 and the

definition in its Memorandum M-07-09. Which definition o earmark did OMB s employees

use when searching for documents responsive for CoA s FOIA request?

The first-line document custodians initially charged with collecting responsive records were

not provided with a specific definition

of

the term eannark when they were asked to collect records

responsive to Cause

of

Action's FOIA request. Rather, they were provided with the precise text

of

Cause

of

Action's FOIA request and asked to provide responsive records. Because the OGC did not

collect documentation

of

the precise search methodology employed by the dozens

of

employees

involved in the collection effort, I am not in a position to say more about the definition

of eannark

document custodians employed. In reviewing the thousands

of

pages

of

documents it received from

the individual custodians for responsiveness, the OGC employed a definition of earmark consistent

with that provided in E.O. 13457.

Could you say more about what sort

of

records you are concerned that OMB employees may

have omitted by relying on one definition of earmark rather than another? I noticed that in footnote

7

of

your April 11 2013, letter you emphasize the phrase other communication in the definition

of

earmark provided in E.O. 13457, contrasting that definition to the one provided in M-07-09, which

does not include that phrase (it focuses instead upon bill or report language ). In case this potential

difference in wording between the two definitions is the source

of

your concern, I can confirm that

OGC counsel specifically directed that custodians look

n

particular for the sort

of

non-statutory

earmarks that are subject

to

the disclosure obligation

of

E.O. 13457.

3. Did all OMB employees consider an earmark to include requests made by Congress, (even

indirectly through the president or his administration) to federal agencies directing agencies to

award discretionary funds for reasons other than merit?


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Again, OMB employees were not provided with a specific definition

of

the

tenn

eannark

when they were asked to collect records responsive to Cause ofAction's FOIA request. Rather, they

were provided with the precise text

of

Cause

of

Action's FOIA request and asked to provide

responsive records. Because

tb e

OGC did not collect documentation

of

the precise search

methodology employed by the dozens

of

employees involved in the collection effort, I am not in a

position to say more about the definition

of

earmark document custodians employed.

That said, neither I nor my contacts at the OMB are aware

of

any definition

of

the term

earmark that an agency employee might have employed in processing Cause

of

Action's request that

would exclude a request from a member of Congress to a federal agency that circumvents [the]

merit-based or competitive allocation process, the first definition of earmark provided by both E.O.

13457 and M-07-09. I take that to be functionally equivalent to the definition in your question

( directing agencies to award discretionary funds for reasons other than merit ), but if you believe the

two are not functionally equivalent and are concerned that the agency's search was inadequate as a

result I am happy to discuss further.

I hope that these responses clarify for you how the agency conducted its search for records

responsive to Cause

of

Action's FOIA request.

f

not,

or if

you have any other questions or concerns,

I am standing by to talk further. I prefer to speak on the phone, where misunderstandings can be

hammered out quickly, but am of course happy to continue to correspond by letter

if

that remains your

preference.

Sincerely,

Is Matthew J B Lawrence

Matthew J.B. Lawrence

Documents

OMB Letter Regarding Definiton of Earmarks