EPA blames advisory board for controversial changes to FOIA policy

The Environmental Protection Agency (EPA) is blaming a component of its controversial new public records policy on recommendations made by an advisory board, according to an email shared with The Hill.

In June the agency made a change to its Freedom of Information Act (FOIA) policy requiring that all record requests must first go through EPA’s Washington, D.C., office instead of its smaller bureaus. The key change was done at the behest of advisory committee recommendations, and was not mandated under the law as previously argued, agency officials said.

“The only discretionary change not mandated by Congressional amendments in the updated regulations was adopted consistent with the recommendations from the FOIA Federal Advisory Committee,” Joseph Brazauskas, EPA acting associate administrator, wrote in an Oct. 23 letter to Rep. Katie Porter (D-Calif.).

“In 2018, the FOIA Federal Advisory Committee recommended that federal departments and agencies ‘centralize FOIA processing where appropriate.’ Therefore, at the specific direction of the FOIA Federal Advisory Committee, the Agency’s recent updates provided for the centralization of the submission and receipt of all requests,” the letter continued.

{mosads}However, when the EPA first announced the finalized changes to its FOIA policy this summer, it argued that it did not have to be subjected to a public comment period because the policy update was mandated by Congress.

“The changes in today’s rule bring EPA’s regulations into compliance with non-discretionary provisions of the amended statute and reflect changes in the agency’s organization, procedure, or practice,” a senior career EPA official said to The Hill in June. “It is routine for agencies to update their FOIA regulations to reflect self-executing statutory provisions.”

The EPA’s latest letter says otherwise, underscoring new concerns about the FOIA policy change that critics argued might give political appointees more control over which public records are released. The admission that one component of the rule was indeed a discretionary change opens the door to new questions about why the rule was not originally subjected to public comment.

“You raised two points that undermine the claim that the EPA only updated its guidelines to come into compliance with the requirements of FOIA,” Porter wrote Thursday in a letter response to Brazauskas and EPA Administrator Andrew Wheeler.

“While we appreciate EPA’s work to come into compliance with Congressional updates to FOIA, this does not excuse the process by which the EPA attempted to update its rules – especially those changes not mandated by Congress,” the letter continued.

Porter argued that the EPA violated federal procedures by changing its FOIA policy without offering notice and a public comment option.

“The FOIA Federal Advisory Committee’s recommendations are not the same thing as federal law, a fact you should be well aware of,” Porter wrote.

EPA spokesman Michael Abboud said Wednesday the policy “makes limited changes to EPA’s FOIA regulations to implement statutory updates, correct obsolete information, and reflect internal EPA realignment and processing changes to improve EPA’s FOIA response process.”

Porter also criticized the premise of the EPA’s reliance on the advisory committee, which in April 2018 recommended centralizing FOIA processing, not FOIA submissions, which is what EPA changed. FOIA processing remains decentralized under the new policy.

“Centralized FOIA processing, when done properly, allows for one official to search and review records even when held by various offices, thereby eliminating substantial waiting time and duplication of efforts,” Porter wrote.

“Centralized submissions with continued decentralized processing instead increases delays as FOIA requests are routed to the appropriate office or branch. A comment period for the rule may have revealed similar concerns and recommendations.”

Abboud said the changes made still qualified for an exemption to public comment.

“EPA’s decision to centralize FOIA intake easily qualifies as a rule of agency organization, procedure, or practice,” Abboud said Wednesday. “The regulation update enables EPA to streamline intake, which is the beginning of the FOIA process.”

Porter was one of several lawmakers and groups that heavily criticized the EPA’s change to its public records policy.

The Society of Environmental Journalists, the Reporters Committee for Freedom of the Press and 37 other news media organizations sent a letter in July to the EPA asking it to suspend the implementation of the FOIA rule in order to allow a public comment period.

“The News Media Coalition is deeply concerned about the Proposed Rule, which contains provisions that undermine the Act, are impermissible under clear, binding D.C. Circuit precedent, and would diminish journalists’ ability to gather and report information to the public about the actions of the EPA and its personnel,” the group wrote at the time.

{mossecondads}News organizations that signed the letter include The Associated Press, Politico, Gannett, McClatchy, The New York Times and The New Yorker.

The FOIA policy also sparked a bipartisan effort in the Senate to pass a new FOIA bill “to reverse recent developments that undermine the public’s right to access information and hold government accountable.”

The bill, introduced by Senate Judiciary Committee members Sens. Chuck Grassley (R-Iowa.), Patrick Leahy (D-Vt.), John Cornyn (R-Texas) and Dianne Feinstein (D-Calif.), came after the senators penned a letter to Wheeler expressing the same transparency concerns.

EPA’s new letter acknowledges that the agency made changes to its finalized FOIA policy following pushback from a handful of lawmakers with whom the administration met privately. Agency officials met with the congressional staff of the Senate Judiciary Committee and the House Oversight and Reform Committee after the final rule was issued, Abboud said.

The updates were in relation to another change to the policy that wouldn’t alert document requesters that their requests wouldn’t be filed if not sent to the newly centralized FOIA office.

Brazauskas said the EPA “voluntarily” instituted a “glidepath” toward implementing centralized FOIA intake by allowing regions that were submitted mailed or emailed requests to continue accepting them until Aug. 23, and then to inform requesters which correct office to submit requests.