EPA Under Fire for Slow Rolling Release of Public Records

A Democratic lawmaker has gone to bat for an array of open-government groups who’ve complained that the Environmental Protection Agency under Scott Pruitt has selectively slow-walked responses to public requests for documents under the Freedom of Information Act.

Rep. Elijah Cummings, D-Md., ranking member of the House Oversight and Government Reform Committee, wrote to Pruitt on Monday summarizing “extremely troubling reports” that Pruitt “may be avoiding producing public records” as required under the FOIA law, Justice Department guidelines and EPA regulations.

“According to one of your former top Republican aides, you intentionally sought to delay producing records relating to your tenure by directing your front office staff to respond first to old requests from the Obama Administration,” Cummings wrote. Pruitt’s political aides also allegedly rejected more requests for documents from EPA headquarters than those directed at field offices.

“Given the vast number of allegations against you, the American people deserve more transparency regarding your actions,” the Oversight ranking member added, calling Pruitt’s “first in, first out” approach to FOIA and a pre-production review by Pruitt’s team “a stark departure from previous practice” that calls for the agency FOIA office to work on multi-channel response efforts.

Pruitt is under multiple investigations by the inspector general and lawmakers for his ethics and spending practices on security and travel, and for directing federal employees to perform personal tasks.

At the same time, the Trump era has prompted a surge in FOIA requests from researchers and transparency groups, with Pruitt’s controversial policy changes on such issues as climate change and the use of scientific expertise drawing more scrutiny than many agencies.

The annual EPA report to the Justice Department on FOIA performance through September 2017 said the EPA headquarters received 3,619 requests (up from the previous year’s 2,160) and processed 2,822, leaving 1,847 pending (up from 1,050 a year earlier).

According to the FOIA Project based at Syracuse University, there was a jump of 250 percent in FOIA-based lawsuits (25 new ones) against EPA over the previous year.

The nonprofit watchdog Project on Government Oversight teamed with Politico to report last February that only 17 percent of FOIA requests to the Office of the Administrator were closed in 2017. That compared to a closure rate of 79 percent for all EPA requests that year.

Asked for comment, EPA spokeswoman Kelsi Daniell said in a statement to Government Executive that the agency will respond to Cummings’ letter “through the proper channels. Since the beginning of this administration, EPA has seen a dramatic increase in FOIA requests as compared to the last administration, including a nearly 200 percent increase in the administrator’s office alone, and the agency is working to release them in a timely manner,” she added. “When Administrator Pruitt arrived at EPA he inherited a backlog of FOIA requests, some dating back to 2008, and over the last year and a half, EPA has worked tirelessly to clear this backlog.”

Cummings argues that the Trump approach appears more politicized than Obama’s, as shown in a 2015 IG report, and quoting testimony to committee staff of both parties from Kevin Chmielewski, Pruitt’s former deputy chief of staff for operations and a campaign aide to Donald Trump.

Specifically, Cummings pointed to the example of a request from the open-government advocacy group American Oversight for “all emails between Scott Pruitt and Ryan Jackson (Chief of Staff), John Reeder (Deputy Chief of Staff), or Mike Flynn (Acting Deputy Administrator) from June 1, 2017, to June 15, 2017.”

EPA responded that this request did not “reasonably define a set of records to search” and did not “provide details such as the subject matters, titles or key terms,” Cummings noted. “It is difficult to understand why that EPA could not locate the records described by American Oversight. According to the FOIA Guide issued by the Department of Justice, courts have recognized ‘that a description of a requested record is sufficient if it enables a professional agency employee familiar with the subject area to locate the record with a ‘reasonable amount of effort.’”

Cummings requested by June 25 all documents since the inauguration relating to EPA’s FOIA process and priorities for handling those directed at the Office of the Administrator, the reasons for rejecting some, as well as any documents showing White House involvement. He copied committee Chairman Trey Gowdy, R-S.C., on the request.