Exemption 10

FOIA case study: Treasury wants $12,000 to provide company-redacted stimulus grant applications

Posted: April 14, 2011 | Tags: FOIA, Freedom of Information, stimulus, Treasury Department

I know a lot about the stimulus bill’s Section 1603 grant program, certainly a lot more than the average person. But 19 months after I started reporting on it, I still don’t know much at all. And not for the lack of effort.

I know the program is a program for investors, awarding a tax credit of up to 30 percent of the cost of an investment in a green energy project, and that credit may actually be taken in cash. I know that the law doesn’t require much of the applicants, only that they prove they do, indeed, have a renewable energy project and that they spell their own names correctly when they apply for a grant. I know that, to date, more than $6.4 billion (almost twice the program’s original cost estimate of $3.4 billion) has been given to at least 2,400 recipients. I also know that many of those recipients are foreign companies since there really aren’t many American green energy companies. And an even larger percentage of those companies are buying foreign-made equipment (and green energy equipment manufacturing is where the jobs are) to use on their projects. See our earlier reporting.

But I don’t know much about the individual projects, and what I do know I’ve found by digging on my own. I don’t know how many jobs have been created on each project or how efficiently each of these wind farms or solar arrays works. I don’t know where most of the projects are. While I’ve established the ownership of many of the large wind farms, they’re only a fraction of the list of recipients, so I don’t know who owns the majority of the projects. I don’t know if any of the projects went bust, or were sold, or whether any of them even generate any electricity.

Not that I haven’t asked. In November 2009, I filed a Freedom of Information Act request for a copy of all applications that were submitted for the program.

Most of my FOIA request has disappeared into the government ether. I was given a partial list of applicants and one sample application with every name blocked out (and the final 30 or so pages), which only helped establish that there was interesting and relevant info — about which projects have received money and what exactly they did with it — being provided.

But the largest part of my inquiry, the request for applications, has been stymied by the U.S. Treasury Department. Last June, officials informed me it would cost me at least $12,400 to pry the information out of them.

And that’s the special rate for journalists, which only requires me to pay for copying and duplication fees, not the search and processing time involved. I helpfully suggested that I didn’t need to have physical copies of the applications. I told Treasury’s FOIA officer Hugh Gilmore I did not want physical copies for a variety of reasons — save trees, save time, save money, save office space that doesn’t need to be filled with dozens of binders of paper — and I would be happy to accept electronic copies or come and view the copies of the records in person.

But Gilmore and Treasury (which is handling my request, although applications are sent to and evaluated by the Department of Energy) declined to compromise. Large amounts of information need to be redacted from these applications, at the discretion of the applicants themselves, under FOIA Exemption 4, which allows private companies the opportunity to remove proprietary information from releases under FOIA, Gilmore told me. He said the redactions must be done by manually blacking out the information and making a photocopy because electronic redaction is too vulnerable to “hacking.” While there have been instances where redactions made electronically have been reversed, those familiar with the process say measures can be taken to ensure they can't be undone.

FOIA law does allow me to ask for a waiver of these onerous copying and duplication fees on the basis that the release of the information would help the public’s understanding of how the government operates. I made that appeal, citing the obvious facts that Section 1603 has handed out billions of dollars, with virtually no explanation about the recipients or the projects they own. It is also an ongoing program that is still handing out money at a clip of several hundred million dollars a month.

As it happens, the judges of who gets a fee waiver and who doesn’t are… officials at Treasury, the very agency that told me I needed to pony up $12,000 for copying fees. Unsurprisingly, they denied my request for a fee waiver, determining that the information would not help the public understand how the government works. If the request for $12,000 in copying fees seemed absurd, we’re sent fully down the rabbit hole by the fact that the same group of people who are holding my request hostage are also the ones who get to decide whether I have to pay the fees.

In February, Treasury denied my appeal of their own denial, for the same reason, except this time, they included this gem of logic:

“The subject of requested records does not concern the operations or activities of the government. The records sought consist of information generated by non-governmental entities. These records relate to the entities that submitted them and their content does not contribute to the public’s understanding of the operations or activities of the U.S. government.”

So information provided by someone who isn’t the government, can’t help the public understand how the government works, even though it was given to the government, in response to a government-written application form, in order to participate in a government-run (and taxpayer-funded) grant program, and subsequently (presumably) used by government officials to determine recipients of this government program and how effective the program has been.

It’s not officially a denial of my request for documents, but the refusal to give me the information unless I pay a ludicrously high copying fee (for copies that don’t need to be made) is effectively a denial unless I want to lawyer up. And the fact that such bizarre logic backs up the denial makes it particularly egregious. Now I’m left with the option to litigate (at significant cost to my news organization and the taxpayers who have to pay the government lawyers) or just give up and agree that information on how billions of dollars of taxpayer money has been spent doesn’t really need to have sunlight shone on it.

One of the more infuriating parts of this whole saga (which is now in its 18th month) is that instead of constructively working to find a way around this copying fee (for example, not making the copies) Treasury has consistently tried to convince me that maybe I would be better off simply not requesting the information. I have been told that I could maybe try asking the requesters myself, rather than expecting the government to explain who they’re giving money to. I’ve also been told that the surest way to lower the predicted copying fees is to just ask for less.

Finally, in the most recent letter from Treasury — the one with the mind-blowing logic about information from non-governmental bodies not shedding any light on governmental activity — I was told that information has been publicly posted about how the money has been given out. Specifically, the letter directed me to this Treasury website where an Excel spreadsheet is buried at the bottom listing all the recipients. (Conservative columnist Timothy Carney at the Washington Examiner recently posted the list online, but it is updated weekly. )

Great.

It’s very helpful if, for instance, you want to know how much money the Meadow Lake Wind farm (which I profiled in one of my earlier stories, discovering they used steel towers made in Vietnam and blades and nacelles from Denmark) in Indiana has received: $276 million.

It isn’t very helpful, if you want to know anything about, say, “RV CSU Power, LLC” which has gotten $3.5 million for “solar electricity” in Colorado. As Treasury officials suggested, I tried to find out information about the company myself — it’s registered in Colorado, as a business based at an address in San Francisco. I couldn’t tell you what they spent the money on, how many jobs they created or even where their project is located. Maybe it’s a great project, maybe it’s not. We’ll never know. (RV CSU Power LLC, if you’re reading this, email me! Treasury said you can help me out! That goes for the other 2,400 recipients as well!)

And that’s the sad part, maybe all of these grants are money well-spent on solid job-creating projects. But it’s probably going to take a good lawyer to find out.

So much for transparency.




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