Pressure mounts against EPA's new FOIA rule

Pressure mounts against EPA's new FOIA rule
© Aaron Schwartz

A Democratic lawmaker along with a group of nearly 40 media publications are raising concerns over a new Environmental Protection Agency (EPA) public information rule that could allow political officials more leeway to withhold requested documents.

In a letter sent Tuesday evening, Rep. Katie Porter (D-Calif.) asked EPA chief Andrew WheelerAndrew WheelerOvernight Energy: Historic heat wave is double whammy for climate change | Trump sees 'bigger problems' than plastic straws | House Science chair threatens EPA over 'stonewalled' answers Science committee chair threatens EPA over 'stonewalled' answers to lawmakers Overnight Energy: USDA expected to lose two-thirds of research staff in move west | EPA hails Trump's work on reducing air pollution | Agency eyes reducing inspections of nuclear reactors MORE to review and revise the Freedom of Information Act (FOIA) rule, which she argues shrouds the process in secrecy and failed to go through the typical public comment period.

“Government transparency is central to our democracy. At a time when climate change threatens our communities, public access to the government’s work to address this crisis is essential,” Porter wrote.

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“The rule, as published by EPA, will make the public process for accessing information more opaque. It is particularly concerning that the EPA chose to write this rule without public input.”

The Hill was first to report on the finalized rule change, submitted to the public record at the end of June without public comment.

“Before choosing to substantially and formally change the FOIA process at EPA, members of the public should be afforded the opportunity to weigh in with the agency regarding this proposal,” Porter wrote.

The agency has argued it did not need to put the rule through a public comment period, pointing to several procedural exemptions.

“It is routine for agencies to update their FOIA regulations to reflect self-executing statutory provisions," a senior EPA FOIA official told The Hill.

According to the new language in the EPA’s FOIA rule, the administrator and other officials would be allowed to review all materials that fit a FOIA request criteria, known as responsive 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.”

Lawyers outside the agency who specialize in FOIA requests say the “no records” response could lead to a situation where records seekers are being told there are no documents meeting their search criteria, even if they were found by EPA staffers who handle the requests, with those documents ultimately withheld by political appointees.

The EPA has denied the characterization of the language, arguing the specification in the rule simply states officials have the right to tell requesters there were no records responsive to them. The EPA also denied that the number of political officials allowed to view FOIA requests prior to release was expanded under the latest rule, arguing they had the same powers in the previous version.

Also Tuesday, the Society for Environmental Journalists along the Reporters Committee for Freedom of the Press and 37 other news media organizations sent a letter to the EPA asking it to suspend the implementation of the FOIA rule in order to allow a public comment period.

“The News Media Coalition is deeply concerned about the Proposed Rule, which contains provisions that undermine the Act, are impermissible under clear, binding D.C. Circuit precedent, and would diminish journalists’ ability to gather and report information to the public about the actions of the EPA and its personnel,” the group wrote.

News organizations that signed the letter include The Associated Press, Politico, Gannett, McClatchy, The New York Times and The New Yorker.

The latest Society for Environmental Journalists letter comes after the nonprofit previously raised flags over the rule at the end of June, a letter which the EPA later derided as containing “numerous inaccuracies."

The group separately responded to EPA Tuesday, writing, “As we said in our initial letter, we believe this new rule will make journalists’ jobs even more difficult, and by extension, it 'will impede the public’s access to environmental information and its right to know how tax dollars are spent.'”

The news organizations urged EPA to suspend the rule and open it to public comment period for no fewer than 60 days.

EPA denied the accusations in both letters.

"After many years of delay, EPA’s FOIA regulations are now in line with the Congressionally mandated changes to the statute and EPA has no plans to withdraw the finalized rule. This rule will enhance transparency and efficiency of responses to FOIA requests. Allegations made that the rule is changing the political appointees role in FOIA are false and irresponsible," EPA spokesman Michael Abboud said.

Several lawmakers on both sides of the aisle have also expressed concern over what appears to be a growing trend of FOIA secrecy at government agencies.

The Interior Department has also been criticized for proposing a FOIA rule in December that would allow political officials mentioned in FOIA requests the ability to view the responsive records prior to release, in a move dubbed an “awareness review.”

Senators from both parties unhappy with the new Trump administration rules say they may craft legislation to fix it. Sens. Chuck Grassley (R-Iowa) and Ed MarkeyEdward (Ed) John MarkeyHillicon Valley: Trump seeks review of Pentagon cloud-computing contract | FTC weighs updating kids' internet privacy rules | Schumer calls for FaceApp probe | Report says states need more money to secure elections Poll: McConnell is most unpopular senator FTC looks to update children's internet privacy rules MORE (D-Mass.) are separately considering bills to address the FOIA changes at both agencies.

"In a self-governed society, the people ought to know what their government is up to,” said Grassley 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.”