CREW I citizens for responsibility and ethics in washington

May 7,2010

GSA FOIA Officer

General Services Administration (CAl) Washington, DC 20405

Re: Freedom ofInformation Act Appeal for Request No. 156968

Dear Sir or Madam:

By letter dated January 21,2010, U.S. General Services Administration ("GSA") Commissioner James A. Williams advised Citizens for Responsibility and Ethics in Washington ("CREW") that our Freedom of Information Act ("FOIA") request of November 1 0, 2009 was partially denied, and information in disclosed documents was exempt from disclosure based on FOIA Exemption 4. CREW hereby appeals that initial determination and requests you reverse it for the reasons set forth below.

CREW's FOIA request (attached as Exhibit A) seeks records related to government-wide program savings realized as a result of the e-Government Travel Service ("e-Gov Travel"). Among other things, CREW seeks contracts with e-Gov Travel providers and records related to those contracts. In its initial determination (attached as Exhibit B), GSA produced three disks containing e-Gov Travel contracts with CW Government Travel, Inc. ("CWGT"), Electronic Data Systems, LLC ("EDS"), and Northrop Grumman Mission Systems ("NGMS"). However, GSA redacted portions of the contracts, including proposals incorporated into the contracts, under FOIA Exemption 4. According to GSA, the information redacted includes "key personnel, non-current pricing, Service Level Agreements ("SLAs") which were negotiated to include incentives, disincentives and methodologies to measure the SLAs, and specific information regarding the Security Assertion Markup Language (SAML) Maintenance for E-Authentication." GSA asserted the redacted information is exempt under Exemption 4, which it characterizes as permitting agencies to withhold trade secrets or commercial or financial information that is privileged or confidential "the release of which can do harm to the entity that submitted the information to the government."

CREW appeals GSA's initial determination with regard to the numerous documents produced by GSA entirely or extensively redacted. For example, all 133 pages of the NGMS pricing proposal, including the line item descriptions and the prices, are redacted in their entirety. Nearly all 49 pages of the seven documents that comprise the NGMS master contract management proposal are wholly redacted, and nearly half the pages of the NGMS statement of work are redacted. Large portions of documents related to the CWGT and EDS contracts similarly are redacted.

Specifically, CREW appeals GSA's initial determination regarding the following documents:

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Freedom of Information Act Appeal May 7,2010

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On the NGMS disk:

• 07-29-03-eTS_NGMS Proposal_ VOLUME 4_ROUND 2_Revised 2 CLIN Pricing 1 Redacted

C _ NGMS SOW (REDACTED)

eTS_NGMS Proposal_ VOLUME 4_ROUND 2 Redacted

• NGMS - CORRECTED Non-redacted and redacted mods file

• DOC004

• NGMS - Master Contract Documents - Past Perf. File:

• All 20 documents

• NGMS Master Contract - Manage.Proposal File:

• All seven documents

• NGMS Master Contract - Tech Prop. File:

• All 14 documents

On the EDS disk:

• EDS _ Master Contract Manage. Approach (redacted) File:

• All documents, except Vol 2 - 0 Table of Contents

• EDS _ Master Contract Tech Prop (redacted) File:

• Vol 1-2 Technical Approach

• Vol 1-3 Performance Work Statement

• EDS FileFINAL Version 0110:

• EDS _ Attch 14 _ Vol4 Price Proposal (REDACTED):

• PBWS_QA_Revised_Redacted

• Vol 4 -2 Price Narrative

• Vol 4 - 4 Alternative Price Proposal Narrative

• D _ Contract Clauses (Section D.6 & D.28 Withheld)

On the CWGT disk:

• eTS R2 VI Final Part 1 REDACTED

eTS R2 VI Final Part 2 REDACTED

• eTS R2 VI Final Part 3 REDACTED

• eTS R2 V2 Final REDACTED

• eTS R2 V3 Final REDACTED

• Final Revised Proposal REDACTED

Copies of these documents are included on the attached disk (Exhibit C).

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Page 3

GSA improperly relied on Exemption 4 to redact information in these documents.

Exemption 4 exempts from compelled disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4).

GSA first misstates the test for confidential information by contending the information may be withheld because its release "can do harm" to the entities that submitted it. Information is "confidential" if disclosure "is likely ... to cause substantial harm to the competitive position of the person from whom the information was obtained." Nat 'I Parks & Conservation Ass 'n v. Morton, 498 F.2d 765,770 (D.C. Cir. 1974). Under this test, "competitive harm" is harm flowing from the affirmative use of the requested information by competitors of the submitter, and "should not be taken to mean simply any injury to competitive position." Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1291 n.30 (D.C. Cir. 1983). GSA, however, does not claim disclosure of any of the information is likely to cause substantial harm to NGMS, EDS, or CWGT, or that the harm would flow from the affirmative use of the redacted information by competitors.

GSA also improperly redacted entire categories of information. Disclosure of information related to broad categories of information such as non-current pricing and SLAs may or may not be likely to cause substantial harm depending on the specific facts. In fact, certain pricing information, as well as technical and management information, is not protected by Exemption 4. See, e.g., Martin Marietta Corp. v. Dalton, 974 F. Supp. 37,40-41 (D.D.C. 1997) (ordering disclosure of cost information and proprietary management strategies included in proposal incorporated into contract);. Accordingly, the government must demonstrate "specific information withheld in any particular instance qualifies as confidential commercial information exempt under FOIA Exemption 4." Gov 't Accountability Project v. United States Dep 't of Health & Human Servs., 2010 U.S. Dist. LEXIS 21415, at *29 (DD.C. Mar. 9,2010) (citing Judicial Watch, Inc. v. FDA, 449 F.3d 141, 149 (D.C. Cir. 2006)). By exempting categories of information, GSA failed to make the specific showing required by the FOIA.

Moreover, even if the categories listed by GSA could be used as the basis for redactions under Exemption 4, GSA improperly redacted far more information than is exempt. The FOIA requires agencies to "disclose any reasonably segregable portion of a record ... after deletions of the portions which are exempt." 5 U.S.C. § 552(b). "[T]he focus in the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material." Mead Data Central, Inc. v. United States Dep 't of Air Force, 566 F.2d 242,260 (D.C. Cir. 1977); see also Public Citizen Health Research Group v. FDA, 185 F.3d 898, 907 (D.C. Cir. 1999). By withholding entire documents or very large portions of them under Exemption 4, GSA did not comply with its duty under the FOIA to disclose all segregable portions.

While CREW cannot be certain what information GSA redacted from the documents it

Freedom of Information Act Appeal May 7,2010

Page 4

challenges in this appeal, it is highly unlikely all the contents of the hundreds of pages redacted in their entirety are exempt. It is far more likely significant portions of the documents can be disclosed. For example, GSA quite likely redacted information from the NGMS master contract management proposal that does not fall into any of the listed categories and should be disclosed. Similarly, the large sections redacted from the NGMS statement of work very likely contain information not exempt under Exemption 4. GSA further appears to have redacted descriptions of all contract line items from the NGMS pricing proposal in addition to pricing information, also information that should be disclosed.' GSA's wholesale redactions of the challenged documents are improper under the FOIA.

Conclusion

Based on the foregoing, we request that you reverse GSA's initial determination withholding pursuant to Exemption 4 the redacted portions of the documents listed above.

Sincerely,

ibL-~~

Adam J. Rappaport Senior Counsel

Citizens for Responsibility and Ethics in Washington

Enclosures

1 CREW's conclusion is based on the EDS and CWGT pricing proposal charts produced by GSA, which disclose each contract line item, its description, and a unit of measure, and only redacts pricing information. The NGMS pricing proposal, by contrast, is redacted entirely, including the chart headings. It is reasonable to conclude the NGMS pricing proposal includes descriptions similar to those in the EDS and CWGT ones.

EXHIBIT A

®

GSA Federal Acquisition Service

January 21, 2010

Mr. Adam J. Rappaport Senior Counsel

Citizens for Responsibility and Ethics in Washington 1400 Eye Street, N.W.

Washington, D.C. 20005

Dear Mr. Rappaport:

This letter is in response to your Freedom of Information Act (FOIA) request (156968) dated November 10, 2009, in which you requested copies of E-Gov Travel Service Master Contracts and other associated documents.

The U.S. General Services Administration (GSA) is enclosing three compact discs of the redacted sections of the E-Gov Travel Service (ETS) Contracts for CW Government Travel, Inc. (GS-33F-N0017), Electronic Data Systems, LLC (GS-33F-P0015 and Northrop Grumman Mission Systems (GS-33F-N0018) as well as the redacted modifications associated with each Master Contract. The enclosed documents have been reviewed by both the Government and the ETS vendors, and it has been agreed by both parties that the information provided is releasable.

GSA is partially denying your request for contracts with e-Gov Travel providers. The redacted material includes portions of the ETS proposals which were incorporated into the award which includes technical proposals, past performance information, contract award, the performance work statement, master contract files, final proposal revisions, attachments and modifications. Information redacted from modifications include key personnel, non-current pricing, Service Level Agreements (SLAs) which were negotiated to include incentives, disincentives and methodologies to measure the SLAs, and specific information regarding the Security Assertion Markup Language (SAML) Maintenance for E-Authentication. The redacted information is exempt from disclosure under 5 U.S.C. 552 (b)(4), which permits the government to withhold from release certain information that constitute Trade Secrets or Commercial or Financial Information that is privileged or confidential the release of which can do harm to the entity that submitted the information to the government.

You have a right to appeal this partial denial of your request. You must write within 120 days of your receipt of this letter to the Freedom of Information Act Officer (ACMC), General Services Administration, 1800 F Street, NW, Washington, DC 20405.

U.S. General Services Administration 2200 Crystal Drive

Arlington, VA 20406-0003

www.gsa.gov

Your appeal must contain a brief statement of the reasons why the requested information should be released. Enclose copies of your initial request and this denial. Both the appeal letter and envelope should be prominently marked, "Freedom of Information Act Appeal."

If you have any questions or comments, please feel free to contact Ms. Rebecca Koses at 703-605-5606.

Sincerely,

James Commi

C" -(

Enclosures

EXHIBIT B

c

~

I citizens for responsibility

I and ethics in washington I

November 10, 2009

Internal Revenue Service Disclosure Office 5 Room 7019

550 Main Street Cincinnati, OH 45202

Re: Freedom of Information Act Request

Dear Sir or Madam:

Citizens for Responsibility and Ethics in Washington ("CREW") makes this request for records, regardless of format, medium, or physical characteristics, and including electronic records and information, audiotapes, videotapes, and photographs, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq., and Internal Revenue Service ("IRS") FOrA regulation 26 C.F.R. § 601.702.

CREW seeks records related to costs and savings associated with the e-Government Travel Service ("e-Gov Travel"). Specifically, CREW requests:

(1) all records, including but not limited to, reports, analyses, memoranda, spreadsheets, and correspondence, that relate, refer to, or reflect savings realized as a result of e-Gov Travel;

(2) records provided to the Office of Management and Budget ("OMB") or the General Services Administration ("GSA") related to such savings;

(3) records that relate, refer to, or reflect any decrease in the IRS's ability to fund travel as a result of the costs of e-Gov Travel;

(4) contracts with the IRS's e-Gov Travel provider(s) and records related to those contracts; and

(5) records sufficient to identify the IRS's e-Gov Travel provider(s).

Please search for responsive records regardless of format, medium, or physical characteristics. We seek records of any kind, including electronic records, audiotapes, videotapes, photographs, and back-up tapes. Our request includes any telephone messages, voice mail messages, daily agenda and calendars, information about scheduled meetings and/or discussions, whether in-person or over the telephone, agendas for those meetings and/or discussions, participants included in those meetings and/or discussions, minutes of any such

1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005 I 202.408.5565 phone ! 202.588.5020 fax ! www.citizensforethics.org

Freedom of Information Act Request November 10,2009

Page 2

meetings and/or discussions, the topics discussed at those meetings and/or discussions, e-mail regarding meetings and/or discussions, e-mail or facsimiles sent as a result of those meetings and/or discussions, and transcripts and notes of any such meetings and/or discussions to the extent they relate to the aforementioned requested information.

If it is your position that any portion of the requested records is exempt from disclosure, CREW requests that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1972). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity "to permit a reasoned judgment as to whether the material is actually exempt under FOIA." Founding Church of Scientology v. Bell, 603 F.2d 945, 959 (D.C. Cir. 1979). Moreover, the Vaughn index must "describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of supplying the sought-after-information." King v. U.S. Dep't of Justice, 830 F.2d 210,223-24 (D.C. Cir. 1987) (emphasis added). Further, "the withholding agency must supply' a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.'" Id. at 224, citing Mead Data Central v. U.S. Dep't of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977).

In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See 5 U.S.C. § 552(b) ("Any reasonably segregable portion of a records shall be provided to any person requesting such record after deletion of the portions which are exempt ... "); see also Schiller v. Nat'] Labor Relations Bd., 964 F.2d 1205, 1209 (D.C, Cir. 1992). Ifit is your position that a document contains non-exempt segments, but those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt and how the material is dispersed throughout the documents. Mead Data Central, 566 F.2d at 26l. Claims ofnon-segregability must be made with the same degree of detail as required for claims of exemption in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release.

Public Interest Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 26 C.F.R. § 60l.702(£)(2), CREW requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government and its expenditures, and the disclosures likely will contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way. Moreover, the request is primarily and fundamentally for non-commercial purposes. 5 U.S.C. § 552(a)( 4)(A)(iii). See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

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Page 3

These records are likely to contribute to the public's understanding of the extent to which e-Gov Travel provides cost savings to agencies and taxpayers, and whether the costs associated with e-Gov Travel have resulted in limitations on travel at the IRS. In 2003, GSA awarded a 10 year, $450 million contract to three companies to provide Web-based travel management services for the federal government. See GSA Press Release, GSA Awards E- Travel Contract: E-Gov Initiative Saves Millions (Nov. 10,2003) (attached as Exhibit A). GSA claimed at the time eGov Travel would save millions of dollars by reducing federal travel management costs by up to 50 percent. Id. Three years later, GAO issued a report evaluating GSA's projection that e-Gov Travel would realize $473 million in savings from 2002 to 2013. See E-Government Travel, Participation by Small Businesses and Estimated Program Savings, at 8, 36 (Publication No. GAO-06-911, Sep. 2006) (available at http://www.gao.gov/new,items/d06911.pdf). GAO reported GSA did not provide evidence for the bulk of the projected savings, id. at 37-40, and recommended GSA collect data from individual agencies on actual savings realized as a result of e-Gov Travel, id. at 43.

The importance of measuring any cost savings is underscored by Office of Management and Budget ("OMB") efforts to evaluate and report on this subject. In August 2006, OMB issued a memorandum to all agency chief information officers instructing them to develop baseline cost estimates for e-Government Initiatives, including e-Gov Travel, and to begin measuring actual costs so that OMB could identify savings. See Karen S. Evans, Administrator, E-Government and Information Technology, Memorandum for Chief Information Officers (Aug. 8, 2006) (available at http://www.whitehouse.gov/OMB/memorandalfy2006/m06-22.pdf). OMB said it planned to request information regarding actual cost savings and cost avoidance on a semi-annual basis. Subsequently, some information about cost savings from e-Gov Travel has been included in OMB's annual Report to Congress on the Benefits of the E-Government Initiatives. See, e.g., http://www.whitehouse.gov/omb/assets/egov docs/FY09 Benefits Report.pdf. The requested records will shed light both on whether e-Gov Travel is achieving its objectives and on the IRS's management of this program.

CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal Revenue Code. CREW is committed to protecting the right of citizens to be aware of the activities of government officials and to ensuring the integrity of those officials. CREW is dedicated to empowering citizens to have an influential voice in government decisions and in the government decision-making process. CREW uses a combination of research, litigation, and advocacy to advance its mission. The release of information garnered through this request is not in CREW's financial interest. In addition, CREW will disseminate any documents it acquires from this request to the public through www.governmentdocs.org.aninteractive website CREW founded that includes thousands of pages of public documents from a number of organizations in addition to CREW. CREW website also contains links to thousands of pages of documents acquired from multiple FOIA requests. See www.citizensforethics.org.CREW·svirtual reading room provides around-the-clock access to anyone willing to learn about the government activities

Freedom of Information Act Request November 10, 2009

Page 4

that form the focus of CREW's FOIA requests. The CREW website also includes documents relating to CREW's FOIA litigation, Internal Revenue Service complaints, and Federal Election Commission complaints and requests for investigation.

Under these circumstances, CREW satisfies fully the criteria for a fee waiver.

News Media Fee Waiver Request

CREW also asks that it not be charged search or review fees for this request because CREW qualifies as a "representative of the news media" pursuant to the FOIA and FTC FOrA regulation 16 C.F.R. § 4.8. In Nat'l Sec. Archive v. U.S. Dep't of Defense, 880 F.2d 1381,1386 (D.C. Cir. 1989), the Court of Appeals for the District of Columbia Circuit found the National Security Archive was a representative of the news media under the FOIA. As the court noted, the FOIA's legislative history indicates the phrase "representative of the news media" is to be interpreted broadly; "[i]t 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. '" Id., citing 132 Cong.Rec. S 14298 (dailyed. Sept. 30, 1986) (emphasis in original).

CREW routinely and systematically disseminates information to the public in several ways. First, CREW maintains a frequently visited web site, www.citizensforethics.org, that received 43,592 visits in October 2009. The website reports the latest developments and contains in-depth information about a variety of activities of government agencies and officials. The website CREW maintains by which it disseminates documents it acquires through FOIA requests, www.governmentdocs.org, received 2,077 visits in October 2009.

Second, since May 2007 CREW has published an online newsletter, CREWCuts, that currently has 15,503 subscribers. CREWCuts provides subscribers with regular updates regarding CREW's activities and information the organization has received from government entities. A complete archive of past CREWCuts is available at http://www.citizensforethics.org/newsletter.

Third, CREW publishes a blog, Citizens blogging for responsibility and ethics in Washington, that reports on and analyzes newsworthy developments regarding government ethics and corruption. The blog, located at http://www.citiznesforethics.org/blog, also provides links that direct readers to other news articles and commentary on these issues. CREW's blog had 2,609 hits in October.

Finally, CREW has published numerous reports to educate the public about government ethics and corruption, Examples include: The Revolving Door, a comprehensive look into the

Freedom of Information Act Request November 10, 2009

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post-government activities of24 former members of President Bush's cabinet; 2008 Top Ten Ethics Scandals; 2008 Most Embarrassing Re-Elected Members a/Congress; 2008 Most Corrupt Members of Congress; and Those Who Dared: 30 Officials Who Stood Up For Our Country. These and all other CREW's reports are available at http://www.citizensforethics.org/reports.

Based on these extensive publication activities, CREW qualifies for a fee waiver as a "representative of the news media" under the FOIA and agency regulations.

Conclusion

Please respond to this request in writing within 20 days as requested under 5 U.S.C. §552(a)(6)(A)(I). If all of the requested documents are not available within that time period, CREW requests that you provide it with all requested documents or portions of documents that are available within that time period.

If you have any questions about this request or foresee problems in releasing fully the requested records within the 20-day period, please call me within that time period. I can be reached at (202) 408-5565. Also, if CREW's request for a fee waiver is not granted in full, please contact me immediately upon making such a determination. Please send the requested documents to Adam J. Rappaport, Citizens for Responsibility and Ethics in Washington, 1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005.

Thank you for your attention to this matter.

Sin:~Y, .1, I~

A/ '~'"-~'-/ j£"i,_"-~4 .

r- k f' ,/

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Adam J, Rappaport" Senior Counsel

Citizens for Responsibility and Ethics in Washington

Enclosure

EXHIBIT A

GSA Awards E- Travel Contract: E-Gov Initiative Saves Millions

http://www.gsa.gov/Portallgsa/ep/contentView.do?pf-=y&noc=T&chan ...

Back to Original

U. S. General, Services Adtnlnistratlon

GSA Awards E-Travel Contract: E-Gov Initiative Saves Millions

GSA #10056

November 10, 2003

Contact: GSA Public Affairs (202) 501-1231

Washington, D.C. - The U.S. General Services Administration today awarded its E-Travel contract to CW Government Travel Inc. (CWGT) of San Antonio, Electronic Data Systems Corp. (EDS) of Fairfax, Va and Northrop Grumman Mission Systems (NGMS) of Fairfax, Va.

All three companies were awarded the 10-year; $450 million contract to provide Web-based, travel management services for the federal government.

E-Travel will be available to civilian agencies in the first quarter of the 2004 calendar year. It will deliver an easy-to-use, integrated travel service tool to the desktops of government customers. The service, one of President Bush's E-Government Initiatives, will simplify federal travel management, and at the same time save taxpayers up to 50 percent in federal travel management costs over 10 years.

GSA successfully resolved the EDS complaint to the General Accounting Office that its proposal needed a full hearing by inviting EDS, along with CWGS and NGMS--the three were finalists in the bid process--to re-demonstrate their E-Travel solutions. GSA conducted its review and determined that a" three are consistent with the E-Travel solicitation requirements.

The Office of Management and Budget has helped implement President Bush's E-Gov vision, harnessing the Internet to achieve new government efficiencies and, ultimately, saving taxpayer dollars. E- Travel contracts embrace best commercial practices to use the Internet effectively and also empower the federal traveler--all at a substantially lower cost to the taxpayer.

E-Travel will be hosted commercially to minimize federal technology costs and guarantee real-time information. From travel planning and authorization to reimbursement, E-Travel leverages best practices in areas such as administration, finance and information technology to realize significant cost savings and improved employee productivity.

Independent verification and validation testing of the vendors' solutions will begin immediately. In addition, selected agencies soon will launch E-Travel to demonstrate initial operational capability. All civilian agencies are expected to complete migration to E- Travel by Sept. 30, 2006, the end of the fiscal year. The E-Travel contract accommodates existing travel agencies and FedTripO, the existing federal online booking service.

GSA is a centralized federal procurement, property management and policy agency created by Congress to improve government efficiency and help federal agencies better serve the public. It

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GSA Awards E- Travel Contract: E-Gov Initiative Saves Millions

http://www.gsa.gov/Portal!gsa/ep/contentView.do?pf=y&noc=T &chan ...

acquires, on behalf of federal agencies, office space, equipment, telecommunications, information technology, supplies and services. It also plays a key role in developing and implementing governmentwide policies. GSA, comprised of 13,000 associates, provides services and solutions for the office operations of over one million federal workers located in more than 8,000 government-owned and leased buildings in 2,000 U.S. communities.

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