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Eye on the EPA: Transparency Request #1, FOIA Failures
April 22, 2013

Following the nomination hearing for Gina McCarthy to lead the U.S. Environmental Protection Agency (EPA), the EPW Republican Senators reiterated five concerns they have with the agency and the expected responses, in order to ensure that transparency is more than a buzzword. The Senators hope to restore public confidence that EPA will stop undermining public trust behind a veil of secrecy. Today, they are lifting the veil of secrecy on EPA's lack of response to their first request.

Transparency Request #1: The EPA will commit to a new guidance to ensure official business is conducted solely on official government e-mail accounts

Request in full: That the EPA issue new guidance drafted by its Office of General Counsel that clearly outlines: a) standards and procedures to ensure that all official business is conducted solely on official government email accounts; and b) standards and procedures for responding fully, truthfully, and timely to FOIA requests and Congressional inquiries.  The guidance document should also establish training regimes in these areas for all appropriate EPA staff, as well as penalties and procedures for dealing with deviations from the guidance.

 

    The Committee's investigation into EPA's transparency practices has uncovered numerous flaws that must be remedied if the agency is to honor the President's well-known claims of commitment to transparency.  These flaws involve several EPA practices ranging from the abuse of federal transparency laws through excessive redactions within disclosures, to the use of secondary and non-official email accounts to conduct official government business; these accounts have operated as a means by which EPA purposely hides information from Congress and the public.

     When President Obama first took office, he declared that his Administration would create "an unprecedented level of openness in Government."[1]  The Freedom of Information Act[2] (FOIA) is the governing statute that empowers every American with the right to know what "the government is up to."[3]  The President has also emphasized that "[t]he FOIA is a key way in which government transparency is realized."[4]  Unfortunately, EPA has spent considerable resources in an effort to thwart the objectives of FOIA, also known as the "sunshine law."  In one recent instance, the agency released sensitive information about farmers and private citizens to environmental allies[5].  However, it continually abuses the discretionary exemptions in the law to hide agency information from the public.

     Moreover, the agency has expedited the requests of "friends of the agency,[6]" while delaying its response to individuals outside of EPA's allies who have submitted sound requests for transparency.  The EPA has essentially implemented FOIA in reverse, being transparent with private citizens' information, but subversive with their own.  Further frustrating the process, the agency has improperly denied states and watch dog groups fee waivers in an attempt to block unwanted scrutiny - despite the requestor's clear public interest objectives in making the request.   According to the Society for Environmental Journalists (SEJ), "The EPA is one of the most closed, opaque agencies to the press" and "the policies she [McCarthy] endorsed bottleneck the free flow of information to the public."[7]  As a result, Congress, the press, and ultimately the America people have been denied their statutory right to know what the EPA is up to.

     The Committee's investigation of EPA's email practices originated with concerns over former EPA Administrator Lisa Jackson's use of a secondary, alias email account.  The discovery of the "Richard Windsor" account triggered a closer look into EPA's transparency practices, and like pulling a string on a cheap sweater, the lengths to which EPA has tried to hide their actions from the public and from Congress have begun to unravel.  In the first instance, while EPA defends Lisa Jackson's practice of using an alias email account, arguing essentially "everyone is doing it," the Committee's investigation has revealed that the Richard Windsor account practices were well beyond the scope of those used by prior Administrators.  In one shocking example, the Committee has obtained an email that demonstrates Lisa Jackson actually assumed the identity of a fictional Richard Windsor when an unsuspecting individual emailed "Richard" and asked "him" to pass along information to the Administrator.[8]  In other words, Richard Windsor was not merely a secondary email account - it was, in the full meaning of the word, a false identity!

     Just as troubling as the false identity is the rampant use of alternative methods to communicate with outside groups free of public scrutiny.  The Committee has obtained an EPA training document that instructs its employees on "creative solutions to dealing with federal constraints."[9]  This document instructs, "As long as we are only participants, not administrators of a web collaboration site, the site is not limited to those same constraints."  Moreover, EPA instructed its employees to use AOL's instant Messenger with non-EPA employees, and noted that it allows for "file transfers."[10]  In light of the recent admission that EPA has not been properly handling instant messages under the Federal Records Act and under FOIA,[11] these documents are alarming as they reveal the lengths the agency has undertaken to remain opaque.

     No less important is the way EPA treats documents turned over pursuant to FOIA requests.  The Committee has expressed its concern for EPA's inappropriate release of private and personal information of farmers.[12]  Such carelessness stands in sharp contrast to EPA's handling of its own information.  The Committee has also observed an excessive application of FOIA exemptions to redact information that should be open to the public.  For example, EPA has repeatedly invoked exemption 5, which is meant to safeguard the government's deliberative policymaking process,[13] to redact employees' reaction to news articles - information that is clearly inconsequential to an agency's deliberative process.[14] In other email exchanges, EPA has redacted the entire email message, including the subject, the text and signature block by repeatedly claiming deliberative process under exemption 5.[15]   EPA's approach to discretionary redactions stands in opposition to guidance given by the Justice Department: "The [FOIA] should be administered with a clear presumption: In the face of doubt, openness prevails."[16]

     Finally, it appears that EPA has a strategy of delaying FOIA responses to unfriendly groups; yet provides friendly groups with a complete and timely response. In one example, the Committee uncovered an email that detailed this strategy:

     Unless something has changed, my understanding is that there are some standard protocols we usually follow in such FOIA requests.  One of the first steps is to alert the requestor that they need to narrow their request because it is overbroad, and secondarily that it will probably cost more than the amount of $ they agreed to pay.[17]

     A key example of EPA applying this strategy includes the recent denial of a FOIA request from several states relating to the regional haze program.  Despite clear guidance that states are entitled to a fee waiver, as made clear in their request,[18] EPA denied their FOIA request on the basis that the states "have not expressed a specific intent to disseminate the information to the general public."[19]  This waiver denial is a clear abuse of discretion and is only serving as a means to delay disclosure of documents likely containing evidence of collusion with far-left groups which could embarrass the agency, yet the EPA's selective fee application and secrecy remains a game of hiding information that the states are entitled to obtain.

     In light of these barriers to transparency, it is critical that the next EPA Administrator recognize that the path the agency currently follows is unacceptable and must commit to taking meaningful and concrete measures to ensure that the agency operates in the sunlight.

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[1] Memorandum from President Barack Obama, Transparency and Open Government (January 21, 2009) available at http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment.

[2] See 5 U.S.C. § 552.

[3] DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989); see also U.S. Dep't of Justice, The Freedom of Information Act (FOIA):  About, http://www.justice.gov/open/foia.html (last accessed Apr. 19, 2013).

[4] See The White House Blog, Sunshine Week: In Celebration of Open Government (Mar. 11, 2013) available at http://www.whitehouse.gov/blog/2013/03/11/sunshine-week-celebration-open-government.

[5] April 4, 2013 Fischer, Vitter letter to EPA Acting Administrator Perciasepe, http://www.epw.senate.gov/public/index.cfm?FuseAction=PressRoom.PressReleases&ContentRecord_id=D65C575B-C434-25DC-9032-D4A9F6E329DE

[6] Competitive Enterprise Institute v. U.S. EPA Complaint for Declaratory and Injunctive Relief re: FOIA, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=384056b5-9ac3-472b-861d-6fb9a868ae48

[7] April 10, 2013 Open letter from Society of Environmental Journalists, http://www.sej.org/new-epa-head-must-ensure-transparency-reversing-block-reporters-access

[8] March 11, 2010 ‘Richard Windsor' email to Robert Goulding, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=c90d98cd-056c-4ca8-b8ce-034d2d240c0f

[9] U.S. EPA Web Collaboration Tools WWG 2010 powerpoint, http://semanticommunity.info/@api/deki/files/993/Web_Collaboration_Tools_WWG_Oct_06.ppt

[10] Same as above

[11] April 2013 EPA Acting Administrator Perciasepe letter to EPA employees, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=8ce8ca6f-58f2-45e2-9a2c-c1ba65ec88f1

[12] April 4, 2013 Fischer, Vitter letter to EPA Acting Administrator Perciasepe, http://www.epw.senate.gov/public/index.cfm?FuseAction=PressRoom.PressReleases&ContentRecord_id=D65C575B-C434-25DC-9032-D4A9F6E329DE

[13] U.S. Dep't of Justice, Guide to the Freedom of Information Act: Exemption 5, http://www.justice.gov/oip/foia_guide09/exemption5.pdf (last accessed Apr. 8, 2013).

[14] [On file with Authors].

[15] See Part A, Release 2 - HQ- FOI-01268-12, Email from Allyn Brooks-LaSure to Richard Windsor (Apr. 15, 2009, 01268-EPA-97); Email from Seth Oster to Richard Windsor (June 24, 2009, 01268-EPA-207); Email from Scott Fulton to Richard Windsor (Aug. 15, 2009, 01268-EPA-261), http://www.epa.gov/foia/docs/Part-A-HQ-FOI-01268-12-ReleaseRedact-NoAttachments-Production-2.pdf (last accessed Apr. 8, 2013); see also Part C, Release 2 - HQ-FOI-01268-12, Email from Seth Oster to Richard Windsor (Jan. 20, 2010, 01268-EPA-527); Email from Seth Oster to Richard Windsor (Jan. 8, 2010, 01268-EPA-518); Email from Arvin Ganesan to Richard Windsor (Feb. 24, 2010, 01268-EPA-548), http://www.epa.gov/foia/docs/Part-C-HQ-FOI-01268-12-ReleaseRedact-NoAttachments-Production-2.pdf (last accessed Apr. 8, 2013).

[16] Memorandum from President Barack Obama, Transparency and Open Government (January 21, 2009) available at http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment.

[17] January 20, 2011 Al Armendariz emails re: EPA policy for FOIA ‘protocols,' http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=47c7624c-8315-487e-ba75-df319b8615be

[18] February 6, 2013 States' petition re: Freedom of Information Act Request, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=fd40b942-a386-46fb-b4f2-fa577096348d

[19] March 15, 2013 State AGs' FOIA appeal, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=d3d7f5b1-b83f-4790-bda4-6ab0d842bba7





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