Bipartisan senators introduce bill to challenge new EPA policy and Supreme Court ruling on FOIA

Bipartisan senators introduce bill to challenge new EPA policy and Supreme Court ruling on FOIA
© Greg Nash

Senators from both sides of the aisle are backing a bill to strengthen the public’s ability to obtain government records, seeking to counteract recent changes that make it easier for the Trump administration to withhold information.

The new Freedom of Information Act (FOIA) bill introduced Tuesday directly challenges both an Environmental Protection Agency (EPA) policy implemented earlier this year and a June Supreme Court ruling.

Senate Judiciary Committee members Chuck GrassleyChuck GrassleyOn The Money: Treasury announces efforts to help people get stimulus payments | Senate panel unanimously advances Yellen nomination for Treasury | Judge sets ground rules for release of Trump taxes Senate panel unanimously advances Yellen nomination for Treasury Finance Committee vote on Yellen nomination scheduled for Friday MORE (R-Iowa.), Patrick LeahyPatrick Joseph LeahyDemocrats seek answers on impact of Russian cyberattack on Justice Department, Courts Senate approves waiver for Biden's Pentagon nominee Democrats swear in three senators to gain majority MORE (D-Vt.), John CornynJohn CornynTrump impeachment trial to begin week of Feb. 8 Limbaugh falsely says Biden didn't win legitimately while reacting to inauguration Top Texas Democratic Party staffers to step down after underwhelming election results MORE (R-Texas) and Dianne FeinsteinDianne Emiel FeinsteinHillicon Valley: Intelligence agency gathers US smartphone location data without warrants, memo says | Democrats seek answers on impact of Russian hack on DOJ, courts | Airbnb offers Biden administration help with vaccine distribution Democrats seek answers on impact of Russian cyberattack on Justice Department, Courts Schumer becomes new Senate majority leader MORE (D-Calif.) said the bill was meant "to reverse recent developments that undermine the public’s right to access information and hold government accountable."

The Open and Responsive Government Act of 2019 comes a day after the same group of senators penned a letter to EPA Administrator Andrew WheelerAndrew WheelerBiden 'freeze' of Trump rules could halt environmental rollbacks 15 states sue EPA over decision not to tighten pollution standard for smog 13 states sue EPA over rule allowing some polluters to follow weaker emissions standards MORE saying the agency’s FOIA policy, introduced without a public comment period in late June, was “undermining the American people’s right to access information from the EPA.”

The Hill was the first to report on the rule released at the end of June that, among other things, expands the number of political appointees who can approve or deny FOIA requests. The agency argued the rule did not have to be subject to a public comment period and that the changes were not substantial.

The senators argued the EPA rule would give political appointees, including the administrator, unnecessary power to issue final determinations on whether to release or withhold documents by claiming records were "non-responsive," meaning they didn't meet the criteria requiring them to be released.

The FOIA bill directly eliminates any agency’s authority to withhold any public documents under a basis of non-responsiveness.

“This section does not authorize the withholding of a portion of an otherwise responsive record on the basis that the portion is non-responsive; and is not authority to withhold information from Congress,” a section of the bill reads.

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

"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," EPA spokesperson Michael Abboud said.

The EPA did not offer a new statement Tuesday.

The bill also addresses the recent Supreme Court decision in Food Marketing Institute v. Argus Leader, which overturned nearly 40 years of FOIA precedent.

At the end of June, the Supreme Court issued a blow to FOIA advocates, ruling that private businesses did not have to divulge proprietary information under FOIA requests, regardless of whether there was any anticipated harm from the release.

“The new Open and Responsive Government Act of 2019, introduced today, is intended to put the public’s interest ahead of corporate interests by restoring the public’s access to data the government collects from private companies,” a press release for the bill read.

"The people’s business ought to be available to the people. It’s only through public oversight and transparency that we ensure government programs are operating as intended, without any waste, fraud, or abuse. Transparency is something worth fighting for, and it seems we’re always in an uphill battle to keep the sunlight shining on government," Grassley said in a statement Tuesday.

"This balanced and bipartisan bill responds to recent court rulings and regulatory actions, restoring pro-transparency principles and making crystal clear where Congress stands on the public’s right to know," he added.

Grassley took to the Senate floor in late June to blast what he saw as a chipping away at the public records law, promising a new FOIA bill was forthcoming.

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

Open the Government, a government accountability group that worked closely with the lawmakers to draft the bill, said it was necessary “to counter the series of onslaughts against FOIA.”

“In the Argus Leader case the Supreme Court tilted the scale in favor of secrecy and away from accountability. At the same time, federal agencies are abusing FOIA exemptions to the detriment of the public,” said Lisa Rosenberg, executive director of Open the Government. 

“This legislation is a necessary course correction that will help address waste and corruption while making it easier for public interest organizations and journalists to access information in the way FOIA intended,” she added.

Drafters of the bill expect it is just the first of two FOIA bills lawmakers will work on to address issues within the current law. Some involved say they also anticipate work on a broader FOIA reform bill that would address more of the political issues inherent in some of the agency's newest FOIA policies.

The Interior Department has similarly come under fire for proposing an FOIA policy last December during the partial government shutdown that would grant political officials the ability to see documents related to them before being released to the public in a process called an “awareness review.” That rule has not been yet been finalized.

"We will definitely continue to work with them on a broader reform bill that will strengthen FOIA just as the 2016 FOIA Improvement Act strengthened the original bill. That was a herculean process that took years and transparency and accountability groups advocating that FOIA needed to be enhanced," said a spokesperson for one of the groups involved.

The representative said the bill was drafted the way it was, without reference to a political awareness review, to address what Senators considered "emergency points."

"The senators rightfully believe this is urgent and ought to be introduced before the recess and not after given the unpredictability of the political environment we find ourselves," the spokesperson said.