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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 of 'earmark, the definition in E.O. 13457 and the
definition in its Memorandum M-07-09. Which definition of '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 in 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 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 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. If 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