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Vitter, Issa Request Increased Transparency, Improved Compliance from EPA
April 10, 2013

U.S. Sen. David Vitter (R-La.), top Republican on the Environment and Public Works Committee, and Rep. Darrell Issa (R-Calif.), Chairman of the House Committee on Oversight and Government Reform, today wrote to Gina McCarthy, nominee to lead the U.S. Environmental Protection Agency (EPA) and current Assistant Administrator of the Office of Air and Radiation, in a call for increased transparency from the Agency in response to Congressional inquiries, involving inappropriate e-mail use to conduct agency business and excessive redactions within Freedom of Information Act (FOIA) disclosures.

In the letter, Vitter and Issa wrote, "To date, the agency has fallen woefully short of enforcing these federal records laws and responding to our inquiries. Notably, our investigation revealed that EPA employees, including you, have operated in a manner that disregards internal protocols and inhibits the public's right to information in a potential effort to evade transparency."

The letter continues Vitter and Issa's investigations of EPA's email practices, which had originated with concerns over former EPA Administrator Lisa Jackson's "Richard Windsor" alias e-mail account. The investigation uncovered emails in which EPA employees regularly used personal email accounts to conduct agency business. To date, EPA has not yet revised its official policy, instructing its employees to "not use any outside e-mail account to conduct official Agency business."

In early March, U.S. Sen. Chuck Grassley (R-Iowa) joined Vitter and Issa in demanding answers on the Agency's failure to properly process FOIA requests.

The text of Vitter and Issa's letter is below. A PDF version can be found here.


April 10, 2013

The Honorable Gina McCarthy
Assistant Administrator, Office of Air and Radiation
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460

Dear Ms. McCarthy:

The House Committee on Oversight and Government Reform and the Senate Committee on Environment and Public Works have been conducting oversight of the Environmental Protection Agency's (EPA) compliance with federal records laws and responses to Congressional inquiries. To date, the agency has fallen woefully short of enforcing these federal records laws and responding to our inquiries. Notably, our investigation revealed that EPA employees, including you, have operated in a manner that disregards internal protocols and inhibits the public's right to information in a potential effort to evade transparency.

When President Obama first took office he declared that his Administration would create "an unprecedented level of openness in Government." Such openness to the public and Congress is manifested in statute through the Freedom of Information Act (FOIA). The President has emphasized that "[t]he FOIA - which provides the public with a statutory right to request and receive information from their government - is a key way in which government transparency is realized." In addition, Congress is entitled to government information pursuant to its inherent constitutional authority to conduct oversight and investigate the executive branch as a crucial part of our system of checks and balances. Despite this mandate, we have uncovered several EPA practices ranging from the use of non-official email accounts to conduct official government business, to excessive redactions within disclosures; that have operated as a means for the EPA to purposely hide information from Congress and the public. As the President's nominee for the position of EPA Administrator, it is incumbent on you to take steps to correct these institutional flaws.

As you are aware, Congress' investigation of EPA's email practices intensified with concerns over former EPA Administrator Lisa Jackson's use of a secondary, alias email account. While the EPA argued that Jackson was merely continuing the practice of her predecessors, the facts demonstrate otherwise. For example, EPA's 2008 memo to the National Archives and Records Administration specifies that the Administrators' secondary email account is only used for infrequent communication with select high level staff; however, we have uncovered documents that suggest Jackson used her alias Richard Windsor account as her primary email account. She used the alias account to subscribe to news publications, to make appointments and even to communicate with individuals outside of the EPA. The scope of records implicated is much greater than that of previous Administrators. As such, Jackson's use of an alias email account is unprecedented at EPA. Of utmost concern, the Committees are unsure whether - prior to the public exposure of the alias account in November 2012 - EPA searched the alias account in response to FOIA and Congressional requests. No one at EPA has taken responsibility for the veil of secrecy covering Jackson's alias account as EPA has failed to provide Congress a clear response to questions regarding who at EPA had knowledge of the alias email account. Also, it is not clear whether the EPA FOIA officers or the EPA Office of General Counsel knew to search the Richard Windsor alias email account in response to an information request. In fact, during a February 25, 2013, briefing with the House Committee on Oversight and Government Reform regarding the Richard Windsor alias email account and EPA email practices, EPA officials from the Office of General Counsel and the Office of Information Collection, reported that they did not know, or would not confirm knowledge, of the alias account prior to it becoming public and could not confirm whether the EPA's FOIA office had knowledge of the account. Moreover, none of the officials could report to Congress on whether Jackson's alias emails were archived for federal recordkeeping purposes as required by the Federal Records Act (FRA).

In addition, EPA officials did not know whether records liaison officers in each EPA office were trained in FOIA and the application of FOIA's exceptions. Moreover, while EPA officials asserted that there are "reams of material" available on EPA's internal intranet system about federal recordkeeping rules and guidelines, EPA does not keep track of which EPA employees, if any, actually view any of the material, nor does EPA keep track of which EPA employees receive training on federal recordkeeping rules.

Further, a troubling pattern of EPA personnel using non-official email accounts to conduct official business has come to light. As you should be aware, EPA policy explicitly prohibits the use of non-EPA email accounts and failure to follow this policy heightens the possibility that EPA and its employees violate the FRA and the Presidential Records Act. In 2008, the Government Accountability Office (GAO) cautioned EPA about the use of non-official email accounts for agency business and recommended that EPA revise its agency records management policies to ensure adequate training and preservation of these emails. However, EPA has yet to adopt GAO's recommendation and implement a revised policy. Instead, EPA affirmed its strict prohibition on the use of non-official emails in an agency-wide notification in October 2012. Specifically, the October notice stated: "This is a reminder to all EPA Employees that EPA prohibits the use of non-EPA E-Mail Systems when conducting agency business. This guidance is stated in Agency Records Training, New Employee Orientations and Briefings for Senior Agency Officials." (emphasis added). Despite this clear prohibition, we understand that several high ranking EPA officials - including you - have used a non-official email account for official purposes. As you are aware, shortly after we questioned Region 8 Administrator James Martin's use of a non-official me.com account, he had to amend his court filings and quickly announce his resignation - affirming our concerns. When confronted with evidence demonstrating rampant violations of EPA's clear policy, EPA declared that, "There's nothing wrong with this." Such blatant disregard for internal protocols meant to ensure compliance with federal transparency and record keeping laws is unacceptable.

In addition to EPA's troubling email practices, the Committees are concerned that EPA has failed to appropriately process FOIA requests. The President's memorandum on FOIA was clear - "The [FOIA] should be administered with a clear presumption: In the face of doubt, openness prevails." More specifically, the Attorney General instructed:

Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of a disclosure.

Despite the Attorney General's guidance, the Committees have observed a fairly zealous application of FOIA exemptions to redact information that should be open to the public. For example, the EPA has repeatedly invoked exemption 5, an exemption meant to safeguard the government's deliberative policymaking process, to redact employees' reaction to news articles - information that is clearly inconsequential to an agency's deliberative process. In other email exchanges, the EPA has redacted the entire email message, including the subject, the text and signature block by claiming deliberate process under exemption 5. While the EPA may have some valid claims of privilege, it is obvious that EPA's practice of redacting numerous pages of emails conflicts with the purpose of exemption 5, as well as the Attorney General's guidance to segregate exempt and nonexempt information in its FOIA disclosures. We previously requested that the EPA Office of Inspector General (OIG) expand its audit of EPA's electronic records management practices to determine whether EPA is invoking FOIA exemptions properly.

Moreover, the EPA has relied on its FOIA responses that include FOIA exemptions in response to Congressional inquiries, or ignored Congressional requests for information altogether - in direct conflict with the law. Congress is not included within the scope of FOIA and agencies cannot use FOIA exemptions to withhold information from Congress. The Supreme Court has declared that "[w]hen a committee seeks information from the executive; it may do so by means of an informal request from committee staff, a letter signed by a committee chair, or by exercise of the subpoena authority, which is vested in standing committees by both bodies." As such, "when a congressional committee of jurisdiction is seeking information from an agency for legislative or oversight purposes, it acts not pursuant to FOIA, but rather pursuant to Congress's constitutionally-based right of access to information from the executive branch." This right has been reaffirmed throughout American jurisprudence by virtue of the fact that "[a] legislative body cannot legislate wisely or effectively in the absence of information ... and where the legislative body does not possess the requisite information - which not infrequently is true - recourse must be had to others who do possess it." Taken as a whole, we are deeply troubled by EPA's inadequate response to valid Congressional inquiries.

Finally, we are concerned about the implications of EPA's recent transition to a new email operating system. It is our understanding that the agency has recently transitioned from Lotus Notes to Microsoft Office 365 in late February of this year. The EPA used Lotus Notes for the last fifteen years and while we understand the need to transition to an updated system, the Committees want to ensure that the EPA has upheld the electronic safeguards needed to preserve agency records. In particular, we are concerned that the scope of responsive agency records under FOIA may be limited after the transition. According to a memorandum on the transition to all EPA employees, Malcolm Jackson, the EPA Chief FOIA Officer, instructed:

When you get your new email box as part of Microsoft Office 365 on February 19th, it will come with the last 30 days of emails transferred from Lotus Notes. All email older than 30 days will remain in Lotus Notes, which will be available in a limited capacity on employees' computers.

Based on this memorandum and the ambiguity of "limited capacity," it appears that in the future, EPA employees will no longer be able to provide complete responses for documents that predate January 20, 2013. As such, the Committees are concerned that EPA may not be able to fully comply with FOIA or Congressional requests, as well as requests for documents subject to litigation.

These practices are troubling as they demonstrate a real impediment to federal transparency. It is imperative that the Committees understand EPA's internal processes and policies that comply with the agency's transparency obligations. Therefore, as a testament to your good faith in reconciling our concerns, we respectfully ask that you fulfill the following requests, in unredacted form, as soon as possible but no later than noon on April 24, 2013:

1. Provide all email correspondence between or among you and Lisa Jackson's alias Richard Windsor email account.

2. Provide all emails sent to, copied to, or received from your personal email account or any other non-official email account referring or relating to your official responsibilities at the EPA.

3. Provide all documents requested in the following Congressional letters to EPA:
a. Letter from Sen. Vitter and Sen. Wicker to Bob Perciasepe sent February 20, 2013, regarding Pebble Mine Project. Please note EPA's response was due March 20, 2013.
b. Letter from Sen. Vitter, Sen. Inhofe, Sen. Wicker, Sen. Sessions, Sen. Boozman, and Sen. Cornyn to you, sent March 12, 2013, regarding the "Gina's new air rules" email. Please note your response was due March 22, 2013.
c. Letter from Sen. Vitter to Bob Perciasepe, sent February 22, 2013, regarding FOIA "rule of three" and the Range Resources, Inc. FOIA response.
d. Letter from Chmn. Issa and Chmn. Jordan to Lisa Jackson sent May 10, 2012, regarding Pebble Mine Project, and as refined by negotiations with House Oversight and Government Reform Committee staff. Please note EPA's response was due May 24, 2012.
e. Letter from Chmn. Issa and Chmn. Jordan to Lisa Jackson sent September 24, 2012, regarding the peer review panel of the Bristol Bay Watershed Assessment. Please note EPA's response was due October 8, 2012.

4. Provide the specified documents listed in the attached addendum from the following EPA FOIA responses:
a. FOIA Request No. EPA-R6-2013-000910.
b. FOIA Request No. 06-00361-12.
c. FOIA Request HQ-FOI-01268-12.

Thank you for your prompt attention to this matter. If you have any questions, please contact the House Committee on Oversight and Government Reform at (202) 225-5074 or the Senate Committee on Environment and Public Works at (202) 224-8832.

Sincerely,

Darrell Issa
Chairman
House Committee on Oversight and Government Reform

David Vitter
Ranking Member
Senate Committee on Environment and Public Works


cc: The Honorable Elijah Cummings, Ranking Minority Member
House Committee on Oversight and Government Reform

The Honorable Barbara Boxer, Chairman
Senate Committee on Environment and Public Works

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April 2013 Press Releases

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