EPA has recently taken steps to restrict access to public records by limiting the Freedom of Information Act (FOIA) process.
The public, press, and public interest groups rely on transparency laws like FOIA to learn more about the functioning and decision making of government agencies, including obtaining studies, documents, and emails that are not otherwise released to the public. On June 26, 2019, EPA published a final rule that would require any documents to be produced in response to a FOIA request to first go to political appointees and other officials for review. The final rule would empower those officials to 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.”
This review process would politicize the FOIA process by allowing political appointees to redact or withhold documents that would otherwise be produced in response to a request.
Critics have pointed out a number of ways the new rule might violate federal law. First, the rule was posted without prior notice and without a comment period. This may violate the Administrative Procedure Act (APA). Further, its inclusion of partial redaction of responsive documents may violate a recent appeals court decision. In American Immigration Lawyers Ass’n v. Executive Office for Immigration Review, 830 F.3d 667, 677 (D.C. Cir. 2016), the D.C. Circuit Court of Appeals held that agencies may not redact non-responsive information from a record deemed to be responsive to a FOIA request. In other words, once a document is determined to be responsive to a request, the entire document should be released, and the only material that may be redacted is information protected by a statutory exemption. Information cannot be redacted solely because it isn’t directly relevant to the request. That portion of the rule may violate FOIA.
A number of groups have reached out to EPA regarding the posted rule. On July 9, 2019, sixteen environmental and public interest organizations sent a letter to EPA requesting that the agency delay the rule’s implementation and open the rule for public comment. On the same day, 39 news organizations sent a similar letter to EPA also to request that the agency delay the rule’s implementation and open the rule for public comment. Both letters argue that the final rule, as currently written, would violate the Administrative Procedure Act (APA) and FOIA.
Pending potential legal challenges, the rule and its new review process will go into effect on July 26, 2019.
For more information on how EPA is diminishing public accountability, please see:
This post was edited for clarity on Jan. 28, 2020.