Bipartisan senators fight 'political considerations' in EPA's new FOIA rule

Bipartisan senators fight 'political considerations' in EPA's new FOIA rule
© Greg Nash

A bipartisan group of senators is pushing back against the new public records policy at the Environmental Protection Agency (EPA), saying it may violate the law by giving political appointees the power to hold back requested information.

“The rule purports to make numerous changes to the EPA’s FOIA process that appear to run contrary to the letter and spirit of FOIA, thus undermining the American people’s right to access information from the EPA,” the senators wrote in a letter to EPA Administrator Andrew WheelerAndrew WheelerEPA, employee union sign contract after years of disputes OVERNIGHT ENERGY: Trump order aims to curb US agencies' use of foreign workers after TVA outrage | EPA transition back to the office alarms employees | Hundreds of green groups oppose BLM nominee EPA transition back to the office alarms employees MORE, referring to the Freedom of Information Act (FOIA).

The new EPA policy, first first reported by The Hill, was announced late last month without any opportunity for public feedback.

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Sens. Patrick LeahyPatrick Joseph LeahySenate Democrats demand answers on migrant child trafficking during pandemic Yates spars with GOP at testy hearing Vermont has a chance to show how bipartisanship can tackle systemic racism MORE (D-Vt.), Chuck GrassleyCharles (Chuck) Ernest GrassleyTrump puts trade back on 2020 agenda McConnell goes hands-off on coronavirus relief bill GOP chairmen hit back at accusation they are spreading disinformation with Biden probe MORE (R-Iowa), Dianne FeinsteinDianne Emiel FeinsteinSenators ask for removal of tariffs on EU food, wine, spirits: report Senate Democrats demand answers on migrant child trafficking during pandemic Yates spars with GOP at testy hearing MORE (D-Calif.) and John CornynJohn CornynCOVID-19 bill limiting liability would strike the wrong balance From a Republican donor to Senate GOP: Remove marriage penalty or risk alienating voters Skepticism grows over Friday deadline for coronavirus deal MORE (R-Texas) are asking the EPA to reconsider the policy and — at a bare minimum — give the public a chance to comment on it, rejecting the agency's assertion that such a process is unnecessary. 

“It is difficult to understand, however, how a rule that limits where requests may be made and appears to affirm political appointees’ authority to redact information in ways that may violate binding precedent is ‘insignificant’ or ‘inconsequential,’” they said, pointing to the two exceptions under law for avoiding public comment on a new rule.

Grassley and others have raised the possibility of a legislative response to the FOIA rule, decrying what they call a culture of secrecy coming from the federal government.

Lawmakers and media outlets have been vocal in their concerns about the rule, saying it would limit access to information by giving political appointees more power to determine whether documents are “responsive” to a requester's query.

EPA spokesman Michael Abboud said the agency "has no plans to withdraw the finalized rule" in a Monday statement to The Hill.

"As we have said 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," Abboud said.

The senators said the rule would give political appointees, including the administrator, the power to issue final determinations whether to release or withhold documents in response to FOIA requests.

“Expressly affirming appointees’ authority to issue final determinations may embolden future senior officials and increase the chances — under any administration — that final FOIA determinations are unnecessarily delayed or driven by political considerations rather than the law,” they wrote.

They were also concerned by an aspect of the rule that would allow political appointees to hold back portions of records, something they say does not fit under the current exemptions allowed by law and also violates a recent court decision that requires turning over a full record once it has been deemed responsive.

“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,’” Matt Topic, government transparency and First Amendment lawyer at Loevy & Loevy, a Chicago-based firm that specializes in civil rights, previously told The Hill. “There's a lot of opportunity to screw around with that."

Earlier this month, 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.

Environmental groups have also pushed back against the rule.

“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.”