02/26/2020 - EPA Mission Tracker

Legal and Legislative Challenges to EPA’s FOIA Restrictions

by Libby Dimenstein, JD 2022

This post is a follow-up to our July 19, 2019 post, Restricting Access to Public Records.

In June 2019, EPA limited access to public records through the Freedom of Information Act (FOIA) process. The new rule, which was published without public input, allows EPA political appointees to review documents produced in response to FOIA requests and withhold portions of documents they deem “unresponsive” (not relevant to the request). Previously, the agency produced relevant documents in their entirety unless they contained confidential or FOIA-exempt material. This provided requestors a fuller picture of the information in the documents and would allow them to learn about related issues or follow up with a new FOIA request. Opponents of the new rule argue that it will also lead to delayed responses to FOIA requests, because it centralizes FOIA request processing at EPA headquarters.

A number of organizations are challenging EPA’s actions in court. Just days before the rule took effect, two coalitions of environmental groups sued the agency. Center for Biological Diversity v. EPA, No. 19-cv-02198 (D.D.C.); Ecological Rights Foundation v. EPA, No. 19-cv-4242 (N.D. Cal.). An ethics watchdog group also sued EPA with substantially the same claims. Citizens for Responsibility and Ethics in Washington v. EPA, No. 19-cv-02181 (D.D.C.). The groups argue, in part, that the new rule violates FOIA and the Administrative Procedure Act because:

  1. It allows non-career EPA officials to withhold records “on the basis of responsiveness,” and
  2. EPA did not provide notice or time for public comment on the change.

The complaints emphasize that this rule is just one more example of how the Trump administration has politicized the FOIA process. Two of the complaints also cite former EPA Administrator Pruitt’s “political awareness review” policy under which the agency’s political appointees reviewed and approved answers to “politically charged” FOIA requests prior to responding.

A group of bipartisan legislators criticized the changes as well. In a July 22, 2019 letter to EPA Administrator Wheeler, Senators Patrick Leahy (D-VT), Dianne Feinstein (D-CA), Chuck Grassley (R-IA), and John Cornyn (R-TX) argued that EPA’s rule runs “contrary to the letter and spirit of FOIA” because it “undermin[es] the American people’s right to access information from the EPA.” The four Senators introduced a bill designed to override EPA’s new FOIA rule. The bill would prevent government officials from withholding a portion of a document produced in response to a FOIA request on the basis that the portion is unresponsive. If adopted, this would reverse one of the rule’s most significant changes. The Senate Judiciary Committee has yet to vote on the legislation.

For more information on how EPA is diminishing public accountability, please see:

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