Democrats on the House Oversight and Government Reform Committee (“OGR”) revealed new details last week about the processing of politically sensitive Freedom of Information Act (“FOIA”) requests at the Environmental Protection Agency (“EPA”). According to The Hill, Ryan Jackson, Chief of Staff to former Administrator Scott Pruitt and current Acting Administrator Andrew Wheeler, explained to “congressional investigators” how “‘politically charged’ or ‘complex’ requests . . . get an extra layer of review before being fulfilled, likely delaying” production of requested records. Jackson specifically discussed how the EPA determined that one Sierra Club FOIA request—described as a “fishing expedition”—was improperly broad. Other requests were delayed so that the disclosure of responsive records could “coincide with similar releases.” This politicization also benefitted requesters sympathetic to the Administration; one request from the National Pork Producers Council was “expedited” due to Jackson’s intervention when he set up a meeting with EPA policy officials.
Reports about FOIA politicization at the EPA are not new. At the beginning of May 2018, Politico reported that “top aides” had leaked internal emails showing the role of officials within the Office of the Administrator in reviewing “documents collected for most or all FOIA requests regarding [Pruitt’s] activities[.]” The apparent aim of this “sensitive review” was to limit the release of embarrassing or politically damaging records. House Democrats at OGR stepped into the game in early June 2018, demanding various records concerning the EPA’s policies for implementing the FOIA. To date, the agency has pointed only to publicly available records, thus prompting Ranking Member Elijah Cummings to ask Chairman Trey Gowdy to exercise his subpoena authority and compel a substantive response. (Incidentally, the EPA has previously ignored congressional records requests about FOIA politicization, as we explained in May 2014.)
The entire transparency community should be concerned over the heightening of sensitive review at the EPA. But it also is important to keep politics from clouding our understanding and criticism of the practice. As I wrote in May 2018:
It is true that the Trump Administration has enhanced sensitive review processes at the EPA. Other agencies have witnessed a similar expansion of sensitive review, as Cause of Action Institute’s investigation of the National Oceanic and Atmospheric Administration demonstrates. But it would be a mistake—as I argued last December—to think that the Obama White House was any better at avoiding FOIA politicization. The EPA has a long and terrible track record for anti-transparency behavior. Consider the agency’s blatant weaponization of fee waivers. According to data compiled by the Competitive Enterprise Institute, and reported by Reason and The Washington Examiner, the Obama EPA regularly denied public interest fee waivers to organizations critical of the agency’s regulatory activities and the White House’s policy agenda. By contrast, left-leaning groups nearly always (92% of the time) received fee waivers.
Sensitive review, along with other forms of FOIA politicization, such as “White House equities” review, is a cherished tradition for both the Left and the Right. Regardless of which party controls the Executive Branch, the natural tendency will always be to keep embarrassing or politically sensitive records out of the hands of the public and—most especially—the news media. Cause of Action Institute itself was regularly subject to “sensitive review” during President Obama’s tenure, and we continue to be singled out for “special” treatment under President Trump, as records from the Federal Aviation Administration have shown. Regardless, we remain committed to exposing the practice of sensitive review and advocating for reform to combat all FOIA politicization.
Ryan P. Mulvey is Counsel at Cause of Action Institute.
