Scorr A. Hopes, ArrorNEY ar Law Mamet BG 9x0 MD Bus aOR AKBYAHOD COM September 11, 2014 Assistant Secretary for Administration USDA Whitten Building, 209-A, 1400 Independence Ave, SW Washington, D.C. 20520-0103 FOIA Appeal — Request 2014-OC10-01714. Dear Assistant Secretary On behalf of Citizens for Responsibility and Ethics in Washington ("CREW") | hereby file this administrative appeal from the decision of the USDA on CREW's Freedom of Information Act ("FOIA") request filed on January 24, 2014. By letter dated January 24, 2014 CREW filed a FOIA request with the USDA FOIA Office for: 1. Any and all records from January 1, 2012 to October 31, 2013 relating to the neonicotinoid class of pesticides and their relationship to colony collapse disorder and the massive die-off of honeybees. Specifically, data provided to the USDA by pesticide manufacturers and distributors Bayer Crop Science, Syngenta, Monsanto, Arysta, Valent USA and Jansen as well as trade groups such as the National Com Growers and the National Association of Wheat Growers, regarding pending legislation or rulemakings dealing with the neonicotinoid pesticides clothiandin and thiamethoxam. 2. Records that reflect any communication between any empioyee of the USDA and any employee of the aforementioned pesticide companies and trade groups regarding neonicatinoids from January 1, 2012 to October 31, 2013. 3. Records that reflect any communication between any employee of the USDA and any employee of the Environmental Protection Agency regarding neonicotinoids from January 1, 2012 to October 31, 2013, 4. Records that reflect any communication between any employee of the USDA and any employee of the U.S. Senate or House of Representatives regarding regulation of the aforementioned pesticides from January 1, 2012 to October 31, 2013.© Page2 September 11, 2014 By letter dated August 1, 2014, USDA released information to CREW. However, certain information was withheld pursuant to FOIA Exemptions 5 (deliberative process privilege) and 6. CREW appeals certain redactions made by the USDA in its August 1, 2014 release to CREW. As the released pages are not numbered, | will do my best to identify the withholdings being appealed. For your information, the documents are posted online (htto/wmw scribd com/doc!239288868/Responsive-Document-CREW-Department- of-Agriculture-Regarding-Pesticides-8-1-2014), and the page numbers used in this appeal are the page numbers corresponding to the PDF of that document. CREW appeals the following withholdings for the reasons provided below: 1, Page 131 of the PDF (marked control number 7243719), This ie a letter from USDA with the signature of Lori Ross, but no other information released in the body Of the letter. No FOIA exemption is marked on the page. First, as the page is not marked with an exemption (as required by the FOIA), CREW appeals this withholding. Furthermore, CREW appeals the failure of USDA to segregate non- exempt material for release. Please review this document, release the segregable information with the proper exemption markings on this page. Note that without any further information, CREW appeals the use of any FOIA exemptions on this page. 2, Page 384 of the PDF (e-mail from Sheryl Kunickis dated April 14, 2014). Certain information on this page is withheld pursuant to Exemption 5. Because this email appears to have been sent to individuals that are neither USDA nor federal government employees, it fails to meet the threshold of Exemption 5 and must be released, 3. Page 418 of the PDF (e-mail from Christi Palmer dated April 8, 2014). Certain ‘material on this page is withheld pursuant to Exemption 5, Ms, Palmer appears to be an employee of Rutgers and therefore the threshold of Exemption 5 has not been met and the withholding of this information is not appropriate. 4. Page 423 of the PDF (e-mail from Jean Reimers dated February 3, 2014). Certain material on this page is withheld pursuant to Exemption 5. Ms, Reimers is the Bayer government relations director and therefore the threshold of the exemption has not been met and the withholding of this information is not appropriate, 5. Pages 425-426 of the PDF (e-mail thread dated January 15, 2013). Certain material on this page is withheld pursuant to Exemption 5. Two of the individuals on this email, however, are employees of the States of California and Washington, and are not federal government employees. Accordingly, the threshold of the exemption has not been met and the withholding of this information is not appropriate. 6. Page 430 of the PDF (e-mail dated December 19, 2011). This email from Laura Phelps of Bayer states there is a draft letter attached to the email, which has not been released or otherwise accounted for. CREW appeals the search USDA conducted as inadequate as it failed to uncover the attachment to this letter. CREW© Page 3 September 11,2014 also appeals withholding this letter pursuant to Exemption 5, given that it is from Bayer, and therefore, not within the threshold of Exemption 5. 7. Page 485 of the PDF (e-mail dated April 16, 2014). This email is from Charles Allen of Texas A & M University. Portions of the text of the e-mail were withheld pursuant to Exemption 5. Mr. Allen is not employed by the federal government and therefore the document does not meet the threshold of Exemption 5 and should be released, 8. Page 487 of the PDF (e-mail dated April 14 2014). This email is from Mark Matocha of Texas A & M University. Portions of the text of the e-mail were withheld pursuant to Exemption 5. Mr. Matocha is not employed by the federal goverment, and therefore the document does not meet the threshold of Exemption 5 and should be released. 9. Page 500-513 of the PDF. These pages are withheld in full pursuant to Exemption 5. CREW appeals this withholding, based on USDA's failure to segregate and release all non-exempt information. Please review this document and release the segregable information. 10, Page 514 of the PDF (e-mail dated March 29, 2012). This email is from Erik Johanson from the State of Washington. Portions of the text of the e-mail were withheld pursuant to Exemption 5. Mr. Johnson is not employed by the federal government and therefore the document does not meet the threshold of Exemption 5 and should be released. 11. Page 515-517 of the PDF. These pages are withheld in full pursuant to Exemption 5. CREW appeals this withholding based on USDA's failure to segregate and release all non-exempt information. Please review this document and release the segregable information. 12. Page 994 of the PDF (e-mail dated February 6, 2013), This email is from Erik Johanson from the State of Washington. Portions of the text of the e-mail were withheld pursuant to Exemption 5. Mr. Johnson is not employed by the federal government and therefore the document does not meet the threshold of Exemption 5 and should be released, 13. Page 995 of the PDF (e-mail dated February 24, 2012). This email is sent to stelinski@ufledu. Portions of the text of the e-mail were withheld pursuant to Exemption 5. The recipient of the e-mail is not employed by the federal government and therefore the document does not meet the threshold of Exemption 5 and should be released. 14. Page 996 of the PDF. This document is withheld in full. It appears to be the attachment referenced on page 995 of the POF, which is a document sent from outside the federal goverment, which therefore does not meet the threshold of Exemption § and should be released,© Page 4 September 11, 2014 45. Page 1089 of the PDF (e-mail from National Cotton Council employee dated October 25, 2011). Certain material on this page is withheld pursuant to Exemption 5, The NCC is not part of the federal government and therefore the threshold of Exemption 5 has not been met and the withholding of this information is not appropriate 46. Pages 1304-5 of the PDF. It appears to be the attachment referenced on page 4303 of the PDF, which is a document sent to a personal gmail address. As this gmail address is outside the federal government, the sending of this material outside of the federal goverment vitiates the protection of Exemption and should be released, 47. Pages 1307-8 of the PDF. These pages are withheld in full pursuant to Exemption . CREW appeals this withholding based on USDA's failure to release all non-exempt, segregable . Please review this document and release the segregable information. 48. Pages 1313-15 of the PDF. These pages ate withheld in full pursuant to Exemption 5. CREW appeals this withholding based on USDA's failure to release all non-exempt, segregable . Please review this document and release the segregable information. 49, Page 1375 of the PDF (e-mail from employee of CropLife America dated March 48, 2013). Certain material on this page is withheld pursuant to Exemption 5. CropLife America is not part of the federal government and therefore the threshold of exemption has not been met and the withholding of this information is not appropriate, 20. Page 1377-1382 of the PDF. These pages appear to be the attachment ‘referenced on page 1375 of the PDF, which is a document sent from an employee of CropLife America. As this document came from outside the federal government, the threshold of exemption has not been met and the withholding of this information is not appropriate. For all of the reasons stated above, CREW asks that you review this material and release the information discussed above. If you have any questions conceming this appeal, feel free to contact me at your convenience. Sincerely, fon J tet Scott A. Hodes