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.
“If something is responsive and withheld for national security, you can go to court and argue as to whether or not you can get records,” Moulton said. With a “no response” or unresponsive reply from the EPA, it would be impossible to take those requests to a courtroom, he said.
The absence of a comment period was particularly alarming, Moulton said.
“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.”
The EPA has not responded to request for comment.
A previous EPA rule change related to oversight of FOIA requests said that the head of the administrator or their delegate may oversee FOIA requests. This rule specifies additional specific positions which may now review requests.
Those 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 inspector general or those individuals’ delegates, according to the rule.
Additionally, the rule changed the process for filing FOIA requests to regional offices. Previously, regional officials were able to fulfill requests coming into their offices. 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.
CQ Roll Call previously reported that political officials within the Department of Interior were allowed to look over records releases before they were sent, and in some cases documents were held back after the reviews.
Republican Texas Sen. John Cornyn said DOI’s “awareness reviews” appear to undermine what Congress wanted when it wrote the law.
“That sounds like it’s inconsistent with congressional intent,” Cornyn told CQ Roll Call. “I’ve heard of people trying to game the system for a long time.”
Cornyn said he had not heard of instances when documents were held back after political appointees interceded, adding that practice should be halted if true.
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.
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