EPA Rule Lets Political Officials Block FOIA Document Requests

by Meg Cunningham (Roll Call) Rulemaking follows Interior Department actions that drew congressional criticism -- A new EPA rule would allow political appointees to review and withhold documents requested by the public under the Freedom of Information Act.

The final rule, published Wednesday in the Federal Register, was signed by EPA Administrator Andrew Wheeler on June 14 and takes effect July 25. It was not preceded by a public comment period.

It comes one week after a similar policy was reported by CQ Roll Call at the Department of the Interior. The practice drew criticism from lawmakers and advocates of public access to records.

Wheeler and political appointees will be able to “issue final determinations 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 unresponsive records aspect is particularly troubling,” said Sean Moulton, a senior policy analyst at the Project on Government Oversight. “When records are deemed unresponsive, the requestor isn’t even informed that they exist. And so it’s a very important authority to be able to say which records are responsive or not.”

According to Moulton, that will limit the requestor’s ability to take turned-down FOIA requests to court.

“In my 20 years of working on FOIA policy I’ve never seen an agency do a FOIA regulation change without public comment,” Moulton said. “In terms of the process, that’s incredibly troubling. They are inviting and accepting no public input.”

Under the new rule, requests must be sent to headquarters in Washington, which will then send them to regional offices.

Any request sent to regional offices by members of the press or the public will be discarded, according to the rule.

In another FOIA-related matter, the Supreme Court ruled Monday that companies sharing information with the government will no longer have to show “substantial competitive harm” in order to keep the information confidential. The decision was in a case involving food stamp sales data.

The decision is likely to make it tougher for reporters and the public to use FOIA to discover how the government, businesses and private contractors make decisions, said Aaron Mackey, senior staff attorney for the Electronic Frontier Foundation. The privacy claim could make it difficult to dig into government decisions such as Federal Trade Commission settlements with companies, he said. READ MORE

Excerpt from The Hill: 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 FOIA requests, with those documents ultimately withheld by political appointees.

“It’s allowing political appointees to make the decision that records someone has presumably identified as being responsive are not actually responsive. That theoretically would allow sensitive documents, that the agency doesn't want to send you, to withhold those records -- and that should shake out eventually in a lawsuit if that's what's happening,” said Matt Topic, government transparency and First Amendment lawyer at Loevy & Loevy, a Chicago-based firm that specializes in civil rights.

The latest version differs from the previous rule, which granted the same rights to the “head of an office, or that individual's designee.”

Bell (Kevin Bell, staff counsel at Public Employees for Environmental Responsibility) equated EPA’s new FOIA rule to a similar regulatory action unveiled earlier this year at the Interior Department, called an “awareness review,” which allows political appointees 72 hours to review documents that mention them by name prior to release.

The EPA has come under criticism for its handling of FOIA requests under Trump’s presidency. Last fall, agency heads clashed with top Democratic lawmakers over an admittance by then acting EPA Administrator Wheeler’s chief of staff to investigators with the House Oversight and Reform Committee that certain FOIA requests were put under more intense scrutiny because they were “politically charged.”

Rep. Elijah Cummings (Md.), who at the time was the panel’s top Democrat and is now chairman, accused the EPA of impeding requests. READ MORE

Excerpt from Politico's Morning Energy: FOIA FOCUS: Several environmental groups, including the Sierra Club, Union of Concerned Scientists and NRDC, wrote to EPA Administrator Andrew Wheeler expressing concern over EPA's recent final rule that makes a series of changes to its internal FOIA rules, including funneling all FOIA requests into a central office. The groups laid out issues with the rule and called on EPA to delay implementation — set for July 26 — until it conducts a "sufficient period of notice and comment, in accordance with the requirements of the Administrative Procedure Act." READ MORE