EPA Proposes Revisions to FOIA Rule. They Are Not Enough

The U.S. Environmental Protection Agency has proposed revisions to its rules around the Freedom of Information Act, but it’s unclear how much of an improvement they represent. Above, EPA headquarters in Washington, D.C. Photo: General Accounting Office.

WatchDog Opinion: EPA Proposes Revisions to FOIA Rule. They Are Not Enough

By Joseph A. Davis

The U.S. Environmental Protection Agency is once again revising its rules for carrying out the federal Freedom of Information Act. Is it going to help or hurt reporters’ ability to find out what is going on at the agency?

Put it this way: It’s not going to help enough.

As administrations change, we see a bit more clearly that agency intentions and actions matter as much as the written rules themselves. Although the Biden-Regan administration does try to be more transparent than the Trump administration did, it is still possible for political appointees to interfere in disclosure.

During the Trump administration, EPA politicos pronounced themselves shocked — shocked — that anybody would suggest such a thing. The Society of Environmental Journalists did suggest it. The EPA objected. The SEJ largely stood by its position.

The EPA published a proposed revision to its FOIA rule in the Federal Register Nov. 17, 2022. The deadline for comments was Dec. 19. SEJ did not submit any formal comments. Actually, only seven comments were received before the deadline. The docket is here.

 

There was a lot wrong with the

Trump-era rule change. But the

new proposal doesn’t really fix it.

 

Cut to the chase: The latest set of proposed rule changes don’t do very much. That is the problem. There was a lot wrong with the Trump-era rule change (the SEJ outlined much of it here and here). But the new proposal doesn’t really fix it.

 

Centralized flow enables political influence

If you want to dig into the new proposal, you should take a look at the response of the Reporters Committee for Freedom of the Press. RCFP complained that the proposal would make it harder to file administrative appeals of EPA FOIA decisions — by disallowing appeals via email.

RCFP also objected that any denials must include justification of specific “foreseeable harm” from disclosure (even though disclosure is required by law).

More important is the Trump-era reorganization of the EPA’s FOIA bureaucracy, by centralizing the flow of FOIA requests and positioning it within the Office of General Counsel, or OGC. EPA’s general counsel (currently Jeffrey Prieto) must be confirmed by the Senate. That makes the occupant a political appointee. The Biden-Regan proposal doesn’t undo that reorganization.

Ultimately, that means it is still possible for political factors to influence whether or how a FOIA request is granted.

The Trump EPA insisted that wasn’t the case. Arguably, if the EPA is going to deny a FOIA request, it had better be on solid legal ground. When denials are appealed, especially in court, the EPA needs to have a firm grasp of whether some exemption or other legal gremlin supports the denial.

But the OGC’s position is, in essence, “Trust us.”

 

Other factors invite meddling

That point was stressed in joint comments from three groups pushing for a more open EPA: Center for Biological Diversity, Citizens for Responsibility & Ethics in Washington and the Environmental Integrity Project.

“The regulations still permit unnecessary political meddling into EPA’s FOIA process in complete contravention of government transparency and public accountability,” the groups said in their comments.

The groups stressed that the Trump directive centralizing intake of FOIA requests at headquarters had the effect of enabling political interference. The Biden-Regan proposal did not really change that.

 

A so-called political “awareness

review” by top agency officials

almost guaranteed that politically

touchy requests could be meddled with.

 

One device invented by the Trump EPA was a so-called political “awareness review” by top agency officials. It allowed brass to review a request before it was responded to. This almost guaranteed that politically touchy requests could be meddled with. The three groups asked EPA to definitively state that such a process would not be used. The Biden-Regan proposal was silent on this.

Another pitfall added by the Trump rule was a provision allowing political officials to decide whether a record was “responsive” to a request (in whole or in part). If a record was deemed by political appointees to be unresponsive, EPA did not have to even acknowledge its existence to requesters. The new Biden-Regan proposal does not explicitly change that.

 

Online-only submission may not benefit requesters

The docket on this current rulemaking reveals debate over how requesters submit FOIA requests to EPA. Generally, EPA is moving away from historic methods like snail-mail or email — in favor of centralized online submission. The current favorite is a multi-agency website called FOIAonline.

Theoretically (to the bureaucratic mind) this would be more efficient. WatchDog must also note that it makes centralized intake and processing of FOIA requests easier. The problem is that it is easier for the government. Not for requesters.

If the agency were truly dedicated to maximizing public access to government records, it would allow as many channels as possible. Not everyone can go online. The FOIA online site only works for a small subset of all federal agencies — which can be confusing. The Trump rule currently in effect does not allow FOIA requests to the EPA to be submitted by email.

 

One good thing about the EPA’s latest

proposal is that it would establish

environmental justice as a valid reason

for “expedited” processing of requests.

 

One good thing about the Biden-Regan EPA’s latest proposal is that it would establish environmental justice as a valid reason for “expedited” processing of requests. That is, requesters could ask for faster-than-normal processing of requests when they would give timely information access to vulnerable affected communities. This is new. The law gives agencies leeway to do this. The EPA proposes using existing demographic mapping tools like EJScreen to define environmental justice communities.

The EPA is still billing this proposal as “Phase II” of the Trump rule.

As the EPA considers how to finalize this proposal, it would do well to think more about how to deTrumpify the agency’s FOIA setup, rather than just putting a slight polish on the Trump rule.

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.

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* From the weekly news magazine SEJournal Online, Vol. 8, No. 5. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.