Environmental groups fight EPA's new FOIA rule

Environmental groups fight EPA's new FOIA rule
© Aaron Schwartz

A coalition of environmental groups pushed back Monday against a new Environmental Protection Agency (EPA) rule that could restrict access to public records. 

The new EPA rule, the details of which were first reported by The Hill, allows the administrator and other political appointees to review all materials requested under the Freedom of Information Act (FOIA) process. 

“Any politicization of FOIA undermines its core functions of enabling the public to inform itself on what its government is up to, and to hold officials accountable for those actions,” the groups wrote in the letter, saying they were “concerned that this new rule will unduly impair the public’s right and ability to apprise itself of important agency actions.”

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According to the new rule, which was signed by EPA Administrator Andrew WheelerAndrew WheelerOvernight Energy: Harris goes after DOJ antitrust probe of automakers over emissions | Trump on energy-efficient light bulbs: 'I always look orange' | Climate change only briefly discussed in third presidential debate Overnight Energy: Trump administration to repeal waterway protections| House votes to block drilling in Arctic refuge| Administration takes key step to open Alaskan refuge to drilling by end of year Trump administration to repeal waterway protections MORE without first going through a comment period, political appointees and other officials would review documents and then decide “whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue ‘no records’ responses.”

The groups that signed the letter, including the Sierra Club, the Natural Resources Defense Council, the Union of Concerned Scientists and many others, have asked Wheeler to withdraw the rule, saying it would be improper to implement it without giving the public a chance to weigh in on its impacts. 

EPA’s new rule is similar to the controversial process employed by the Department of the Interior, which also lets political appointees review FOIA requests before they are released to the requester. 

Critics of the rule at EPA and Interior have highlighted the potential for abuse.

“Aside from this requirement intuitively granting political staff heightened opportunities to interfere with FOIA requests, it is difficult to see how this change could possibly improve the Agency’s FOIA efficiency or enhance the public’s lawful access to information,” the groups wrote in their Monday letter.

There is already talk in Congress of using legislation to limit the review of public records documents by non-FOIA staff, something the agencies refer to as an “awareness review.”

“Transparency laws like the Freedom of Information Act help provide access to information in the face of an opaque and obstinate government. Unfortunately, a recent Supreme Court ruling and new regulations at EPA and the Department of Interior are undermining access,” Sen. Chuck GrassleyCharles (Chuck) Ernest Grassley'Mike Pounce' trends on Twitter after Trump slip at GOP retreat Cruz warns GOP support for expanded background checks could help elect Warren president Lawmakers applaud Trump's ban on flavored e-cigarettes MORE (R-Iowa) said in a late June speech on the Senate floor.

“The public’s work ought to be public. So, I’m working on legislation to address these developments and promote access to government records.”

Sen. Ed MarkeyEdward (Ed) John MarkeyYoung insurgents aren't rushing to Kennedy's side in Markey fight Ocasio-Cortez endorses Markey in Senate race amid speculation over Kennedy candidacy House votes to block drilling in Arctic refuge MORE (D-Mass.) is also considering legislation in response to the new rules.

“The new regulation does not grant any additional authorities to 'reject' FOIA requests by claiming 'no records.' A response that yields 'no records' is simply a request in which a search has been conducted and no responsive records are found, it is a frequent determination that has existed since the passage of the FOIA, and has been available to any official authorized to issue FOIA determinations. This new regulation brings EPA into compliance with the law, which the Obama administration ignored,” an EPA spokesman said last month.

In Monday’s letter, the groups contend that holding back documents from a FOIA request is illegal.

“The law is clear that FOIA does not permit agencies to withhold a record or a portion of a record “on the basis of responsiveness,” they wrote.

EPA and Interior have said the FOIA rules are a necessary update to congressional changes to the FOIA law in 2016.

While the EPA administrator and other political appointees have had the ability to grant or deny FOIA requests, doing so under the “basis of responsiveness” and “no response” option is a new addition in the forthcoming rule.

A blanket explanation for non-responsive materials could make it harder for groups or individuals to legally challenge any of EPA’s decisions to withhold documents, because it will be more difficult to prove why they were withheld. A person appealing their FOIA response would not know if any documents were withheld under a “no records” response.

“You could have a situation where there is a pile of documents that the FOIA officer thinks is responsive and have a political appointee overrule them and say, 'I don’t think those documents are responsive because that’s not exactly what that person was looking for,’” said Matt Topic, government transparency and First Amendment lawyer at Loevy & Loevy, a Chicago-based firm that specializes in civil rights when the rule was first unveiled in late June. “There's a lot of opportunity to screw around with that."

Other major changes in the rule include a decision to no longer allow EPA regional offices to handle initial FOIA requests. All requests instead must first be sent to the agency’s National FOIA Office, which will then delegate the requests to the proper office. 

Any requests sent first to regional offices by members of the press, the public or any organizations will not be redirected and won’t be considered received.

“EPA expects to improve the efficiency and consistency of its intake and assignment processing, including more consistent and earlier outreach to requesters, through centralizing these functions into one office at the Agency,” the EPA said in a statement when it first announced the rule change.