Senators in Both Parties Object to FOIA Changes at EPA

A bipartisan group of senators on Monday accused the Environmental Protection Agency of violating public records laws when it issued changes, without prior notice, to its regulations governing Freedom of Information Act requests.

Last month, the EPA filed changes to its FOIA rules to the Federal Register, which became effective immediately. The changes affirmatively grant that political appointees, including the administrator and deputy administrators, can respond to FOIA requests, either releasing or withholding documents. The regulations also stipulate that all FOIA requests be made to EPA headquarters in Washington, D.C., and say the agency will “not consider” requests sent to regional offices.

Additionally, the new regulations allow officials to withhold portions of a document on the basis of responsiveness. In a letter to EPA Administrator Andrew Wheeler Monday, Sens. Patrick Leahy, D-Vt.; Chuck Grassley, R-Iowa; Dianne Feinstein, D-Calif.; and John Cornyn, R-Texas, said that change conflicts with federal case law.

“This appears to directly conflict with a 2016 decision by the D.C. Circuit, which found ‘no statutory basis for redacting ostensibly non-responsive information from a record deemed responsive,’” the lawmakers wrote. “Rather, ‘the sole basis on which [an agency] may withhold particular information within that record is if the information falls within the statutory exemptions from FOIA’s disclosure mandate.’ . . . Thus, the rule appears to authorize exactly what the D.C. Circuit’s holding prohibits.”

The lawmakers objected to the other major provisions of the rule change. They noted that although political appointees are not prohibited from engaging in the FOIA process, their involvement often causes agencies to miss deadlines and can lead to other compliance problems.

“While FOIA does not preclude this authority, experience under the Obama administration and prior administrations shows that the involvement of political appointees making determinations can add unnecessary delays to the review process, potentially violating FOIA’s statutory deadlines,” they wrote. “Expressly affirming appointees’ authority to issue final determinations may embolden future senior officials and increase the chances—under any administration—that final FOIA determinations are unnecessarily delayed or driven by political considerations rather than the law.”

The senators said they feared that routing all FOIA requests to EPA headquarters could result in a process that is less responsive to those who file requests.

“This [provision] effectively sidelines the EPA’s regional offices, which may previously have been the point of easiest access for many requesters,” the lawmakers wrote. “Making matters worse, the rule does not require the EPA to inform requesters that a request has been erroneously submitted to an EPA program or regional office.”

The lawmakers asked Wheeler to reconsider the changes to EPA’s FOIA regulations or at least provide a transition period before they go into effect.