More political appointees at the Environmental Protection Agency (EPA) could soon have the authority to weigh in on public information requests.
The rule is expected to be published in the Federal Register as early as Wednesday and will not allow for a public comment period.
According to the new language in the FOIA rule signed by EPA chief Andrew Wheeler last week, 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 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.
EPA strongly disputed that interpretation, saying the new rule does not grant appointees the ability to label responsive documents as non-responsive.
“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,” said Michael Abboud, EPA spokesman.
Topic, who reviewed the text of the rule, said it’s common for FOIA officers at government agencies to initially find responsive documents to requests that other officials later dispute in terms of qualifying for public release.
He said the new language in the EPA rule suggests officials may have the opportunity to prevent release of the documents on the basis that they don’t meet the criteria, and are therefore non-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,’” he said. “There’s a lot of opportunity to screw around with that.”
EPA officials who would be authorized to make that decision include the administrator, deputy administrators, assistant administrators, deputy assistant administrators, regional administrators, deputy regional administrators, general counsel, deputy general counsels, regional counsels, deputy regional counsels and the inspector general or delegates of those individuals, according to the final rule.
The latest version differs from the previous rule, which granted the same rights to the “head of an office, or that individual’s designee.”
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.
“It’s exceptionally difficult to litigate on the ‘basis of responsiveness.’ There is no record,” said Kevin Bell, staff counsel at Public Employees for Environmental Responsibility. “FOIA litigation is always pretty one-sided, there is no discovery … now they are just saying, ‘Oh, it’s not responsive. Oh, we don’t have to tell you.’”
Bell 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.
“It seems like EPA is doing about the same thing,” he said. “On the ‘basis of responsiveness’ and ‘no records responses’ are both things that we’ve seen in the environmental FOIA community time and again.”
EPA officials characterized the rule change as a much-needed update to regulations as stipulated by 2007, 2009 and 2016 congressional updates to FOIA processing. The Obama administration failed to change its FOIA regulations as charged by Congress, and the new rule brings EPA into compliance.
“The changes in today’s rule bring EPA’s regulations into compliance with non-discretionary provisions of the amended statute and reflect changes in the agency’s organization, procedure, or practice,” said a senior career EPA official who helped devise the regulation.
Critics argue the new rule specifically bestows more powers on political appointees to weigh in on specific FOIA cases.
“This new notice turns that upside down by substituting a wide array of political appointees for the career officials that heretofore have responded to FOIA requests for records in the possession of their offices,” said John Walke, senior attorney for the Natural Resources Defense Council.
“The rule changes, for the first time, place an army of EPA political appointees as the gatekeepers for determining whether Americans receive responsive government records in response to FOIA requests.”
The EPA official said the change to the “final determinations” authority in EPA’s new rule largely combines two previous FOIA rules and is not a significant change.
“This provision is not intended to be broader than the old regulations, which covered the subject in several provisions,” the official said.
“The old regulations state that ‘the head of an office, or that individual’s designee, is authorized to grant or deny any request for a record of that office or other agency records when appropriate.’ All positions listed in the updated regulations fall within the ordinary meaning of ‘the head of an office, or that individual’s designee,’” the official added.
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.
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,” according to a statement provided by EPA on the rule change.
The agency official described the change as a way to align regional office FOIA responses with the national office.
“We took a look across the agency and saw there were different practices as to how they reached out to requesters in the first instance after a request has come in. We saw an opportunity to create greater uniformity. One of the practices we’ll be adopting as this goes into effect is reaching out consistently to FOIA requesters with an initial letter,” the official said.
Bell warned that the new order could allow EPA political appointees to better control the documents ultimately released by regional offices. He said regional offices often have less political pressure to withhold more responsive materials.
“This is just making sure that every FOIA request that gets reviewed gets taken down the hall or next door to ‘s office,” Bell said. “Basically, anytime a FOIA request goes up to the administration you can extend however long it will take and reduce what you get back.”
The EPA official said the changes would neither speed up nor slow down the FOIA process. Under , the agency has experienced a huge uptick in FOIA requests and major backlog in processing, which has been exacerbated in some instances by a lack of funding to hire new staff to help with those requests.
“I don’t think this will change the speed or response at all. We’re trying to be consistent with outreach to requesters and not anticipating this will slow down our response,” the senior official said. “Our aspiration is to come into compliance with the statue, in the most straight and most direct way possible, without coming into any discretionary changes with the statue.”
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. (Md.), who at the time was the panel’s top Democrat and is now chairman, accused the EPA of impeding requests.
In a letter to lawmakers at the time, Kevin Minoli, the EPA’s principal deputy general counsel, defended the EPA’s decision to notify senior officials throughout the FOIA process regarding high-profile requests.
“This ‘awareness review’ process does not itself violate FOIA and can be completed without causing undue delay,” Minoli said.
In another instance, former EPA staffers under previous Administrator told congressional investigators in June 2018 that Pruitt had directed staff to finish completing FOIA requests submitted under former President Obama before starting on those requesting information from his tenure.
CORRECTION: A previous version of this story mischaracterized the scope of the new rule and misstated some of the authorities that come with it.