The Environmental Protection Agency (“EPA”) has long struggled with the politicization and abuse of its Freedom of Information Act (“FOIA”) processes. Indeed, as Cause of Action Institute (“CoA Institute”) has repeatedly argued, the agency has a “terrible track record for anti-transparency behavior”—from the weaponization of fee waivers and the use of undisclosed “alias” e-mail accounts, to the failure to preserve text messages and the creation of special “awareness review” procedures for politically sensitive FOIA requests. Yet the EPA’s rather poor reputation plunged even further in late June 2019, when the agency published an unexpected direct final rule implementing various changes to its FOIA regulations. Learn More
03/12/2019
Busted During Sunshine Week: EPA Employees Still Appear to be Using Unauthorized Messaging Applications
Cause of Action Institute Urges Chairman Cummings to Investigate EPA Employees’ Violation of Disclosure & Records Retention Laws
Cause of Action Institute (CoA Institute), a nonpartisan strategic oversight group, sent a letter to U.S. Rep. Elijah Cummings, chairman of the U.S. House Committee on Oversight and Reform (Oversight Committee), on the eve of the committee’s hearing on transparency, to urge Chairman Cummings to investigate government employees using unauthorized messaging applications on their government devices to avoid and/or prevent disclosure, as required under federal law.
“We applaud Chairman Cummings for his commitment to government transparency and urge him to use the powers of his committee to determine why government employees can ignore government policies and federal law and use unauthorized messaging applications that thwart disclosure of government business,” said James Valvo, counsel and senior policy advisor at Cause of Action Institute. “The EPA promised it would clean up its act and eliminate unauthorized apps installed on government devices, but our investigation has found the EPA may have failed to take the necessary action, as a result, these unauthorized apps pose considerable harm to enforcing federal disclosure laws.”
By letter, the EPA informed the National Archives and Records Administration (NARA) that as of June 2018, the EPA had “completed its process” of disabling downloads of unauthorized applications subject to two minor exceptions, and removed most previously installed applications. However, CoA Institute uncovered evidence that 62.16 percent of all apps installed on EPA-furnished devices were unapproved applications, including the non-work-related or encrypted messaging applications that violate record retention and disclosure laws.
Cause of Action Institute, by letter, informed Chairman Cummings of this information in order to assist the Oversight Committee’s duty to reign in government abuses. CoA Institute also informed NARA and the EPA Inspector General of the findings.
The letter we sent to Chairman Cummings can be found below.
Background on our investigation can be found here and here.
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Media Contact: Matt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018
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Open in new tab 07/26/2018
EPA Jobs Loss Evaluations Update
Late last year, CoA submitted an amicus brief in the case of Murray Energy v. EPA. The brief supported Murray Energy’s cert. petition seeking review of its case before the Supreme Court. The Murray Energy case centered on employment evaluations required under Section 321(a) of the Clean Air Act.
A federal court in West Virginia ordered the EPA to comply with the statutory mandates of Congress, requiring the EPA to conduct “continuing employment evaluations” related to Clean Air Act implementation or enforcement. The Fourth Circuit, however, sided with the EPA and ruled that, despite the plain language of the statute, Section 321(a) was discretionary and not an agency obligation.
Our brief made the following point: Congress specifically stated that the EPA shall conduct these continuing employment evaluations. Not may, or if something happens, or if the EPA deems it expedient, but shall. Unfortunately, earlier this year, the Supreme Court denied Murray Energy’s petition and will not review the matter. However, the EPA has admitted its failure to conduct job loss evaluations and committed to doing so in the future: “the Agency historically has not conducted these assessments. EPA acknowledges the importance of considering the cumulative effects of its regulations on the American public. Accordingly, EPA intends to conduct these evaluations consistent with the statutes.” CoA will continue to monitor these developments and help ensure that the EPA follows through on its promises.
Meanwhile, nearly two years ago, CoA petitioned the EPA to initiate a rulemaking to implement procedures and hearings under Section 321(b) of the Clean Air Act. This section allows any employee who is discharged or laid off, threatened with discharge or layoff, or whose employment is adversely affected by Clean Air Act requirements to request an investigation and a hearing from the EPA. The EPA has failed to promulgate any regulations regarding the process and standards by which it should conduct investigations and hearings under Section 321(b) and has not responded to our petition, other than to acknowledge it. As the agency is now under the new leadership of Acting Administrator Andrew Wheeler, the opportunity again presents itself for the EPA to finally address our petition and give the public the necessary tools to seek relief from its regulatory activities.
Josh Schopf is Counsel at Cause of Action Institute
07/19/2018
EPA responds to House OGR Democrats, arguing FOIA “sensitive review” originated with the Obama Administration
Earlier this week, Democrats on the House Oversight and Government Reform Committee (“OGR”) released details about how officials from the Environmental Protection Agency (“EPA”) admitted to subjecting politically sensitive Freedom of Information Act (“FOIA”) requests to layers of extra scrutiny, including review by political appointees. OGR Ranking Member Elijah Cummings even asked Chairman Trey Gowdy to issue a subpoena compelling the EPA to hand over various records documenting its FOIA processes.
Since Cause of Action Institute’s (“CoA Institute’s) coverage of this issue on Monday, there have been two important developments. First, on Tuesday, Chairman Gowdy denied OGR Democrats their request for a subpoena. Second, and more importantly, reports have revealed that Kevin Minoli, the EPA Principal Deputy General Counsel and Designated Agency Ethics Official, sent a letter to OGR Democrats on Sunday, arguing that the agency’s sensitive review policies actually originated with the Obama Administration.
According to Minoli, the EPA created a “FOIA Expert Assistance Team,” or “FEAT,” in 2013 to provide “strategic direction and project management assistance” on “complex FOIA requests.” Minoli explained that a FOIA request could be classified as “complex,” for FEAT purposes, if someone in the agency’s leadership requested it to be so. FEAT coordinated “White House equities” review and also alerted the Office of Public Affairs, as well as “senior leaders” within the EPA, of particularly noteworthy requests through its so-called “awareness review” process.
The EPA’s latest clarification vindicates CoA Institute’s repeated warnings (here and here) not to let political judgments about the Trump EPA’s policy agenda interfere with understanding and criticism of long-standing problems of FOIA administration, including the politicization that inevitably results from “sensitive review” processes. To be sure, it appears the Trump Administration has worsened the problem, particularly at the EPA. But the groundwork for this sort of FOIA politicization was laid by President Obama. Indeed, Minoli claims OGR’s investigative work during the Obama-era was part of the then-Administration’s impetus for creating FEAT.
Regardless of which party or president is responsible for introducing FOIA sensitive review at the EPA or any other agency, the practice still raises serious concerns. Although alerting or involving political appointees in FOIA administration does not violate the law per se—and may, in rare cases be appropriate—there is never any assurance that the practice will not lead to severe delays of months and even years. At its worst, sensitive FOIA review leads to intentionally inadequate searches, politicized document review, improper record redaction, and incomplete disclosure. When politically sensitive or potentially embarrassing records are at issue, politicians and bureaucrats will always have an incentive to err on the side of secrecy and non-disclosure.
Considering these developments, CoA Institute has submitted a FOIA request to the EPA seeking further information about FEAT and the agency’s sensitive review policy. We will continue to report on the matter as information becomes available.
Ryan P. Mulvey is Counsel at Cause of Action Institute.
07/16/2018
EPA Chief of Staff describes agency’s sensitive review process for “politically charged” FOIA requests
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.
05/16/2018
New Records Reveal the FAA Has Been Tracking FOIA Media Requesters
The Freedom of Information Act (“FOIA”) was introduced to ensure public access to records of the Executive Branch. Unfortunately, agency FOIA processes have long suffered from politicization at the hands of bureaucrats and political appointees who hope to frustrate the disclosure of embarrassing or newsworthy documents. A recent report about enhanced “vetting” of FOIA requests at the Environmental Protection Agency (“EPA”), for example, demonstrates the tenacity of those who govern—regardless of their political affiliation—to keep secrets from the concerned public. Similarly, earlier this year, Cause of Action Institute (“CoA Institute”) revealed how the National Oceanic and Atmospheric Administration expanded its “sensitive review” procedures by putting records requests from attorneys, and requests concerning the Trump Administration’s transition period, into special processing categories. Now, newly disclosed records from the Federal Aviation Administration (“FAA”) demonstrate how that agency has made concerted efforts to keep tabs on news media requesters.
The FAA’s FOIA “Media Reports”
“Sensitive review” refers to the practice of giving certain FOIA requests extra scrutiny, usually because the records at issue are politically damaging, embarrassing, or otherwise newsworthy. Politicization can come in different forms. Sometimes sensitive review entails an agency’s public affairs team or communications specialists being kept informed of new requests or outgoing productions of records. In other instances, it involves political appointees supervising searches or making redaction decisions. In all cases, sensitive review delays, and sometimes prevents, the disclosure of records that the public has a right to view.
According to records obtained by former CoA Institute attorney Allan Blutstein, the FAA’s sensitive review process includes a “tracking system” for requests submitted by representatives of the news media. News media requesters automatically receive a fee reduction under the FOIA and presumptively satisfy some of the requirements for expedited processing. This preferential treatment is meant to recognize the vital role of the media in a participatory democracy. The intentional targeting of media requesters within a framework for sensitive review, therefore, is especially concerning.
The following screenshot from one of the FAA’s “Media Request” charts shows just how the agency tracks pending requests. Each line includes a description of the records at issue and each request’s processing “status,” such as whether a search has been conducted or responsive records are under review.
Although approximately half of the requests recorded in the FAA chart (100 of 184) were submitted during the Trump Administration, the remainder date from as early as April 2009. Not only does this reveal an unacceptable backlog at the FAA, but it suggests that the practice of targeting media requesters for special scrutiny or “tracking” may have originated with the Obama White House. CoA Institute warned in early 2014 that FOIA processes across the government were being clogged up by political intervention because of news media requesters seeking the disclosure of records about embarrassing scandals. It appears that the FAA’s current practice reflects the politicization that was covertly emphasized by the Obama Administration.
(A complete copy of the FAA tracking chart is available here. FOIA requests highlighted in blue have not yet been assigned to a FOIA officer, while requests in yellow are, in most cases, pending legal, business or supervisor review. An agency-created summary of the highlighted FOIA cases is available here.)
As a representative of the news media, CoA Institute itself was subject to the FAA’s tracking regime. Three of our pending requests, dating from early 2012 and 2013, were flagged. One of those three requests has not even been assigned to a disclosure officer for processing, despite the fact that it was submitted to the FAA almost five years ago.
The version of the FAA’s “Media Request” tracking table obtained by CoA Institute, which is dated April 26, 2018, was circulated amongst several officials within the FAA’s Office of Communications (“AOC”) and the Department of Transportation’s Office of the Secretary (“OST”). The cover email also includes a batch of incoming record requests. All of this suggests that a key group at the FAA is responsible for managing the sensitive review process and keeping key officials within the Administration knowledgeable about ongoing FOIA affairs.
A complete copy of this email is available here. To the extent we have been able to identify the individuals involved, we believe they hold the following positions within the FAA’s FOIA Office, Office of Communications, or the Office of the Secretary of Transportation:
- Kimberly McCormick – FOIA Management Specialist
- Kathy Ray – Departmental FOIA Officer, Department of Transportation
- Laura Brown – Deputy Assistant Administrator for Public Affairs
- Gary Kolb – Chief of Staff, Communications Division
- Greg Martin – Assistant Administrator for Communications
- Elisabeth Smeda – Senior Advisor to the Acting Administrator
- Collen Donovan – Senior Advisor to the Deputy Administrator
- Carlos Alfaro – Director, Information and Technology
- Geraldine Gour – Manager, Administrative Services for the Aircraft Certification Service
- Duke Taylor – Manager, FOIA Program
- Louis Fuss – Senior FOIA Management Specialist
- Laurie Karnay – FOIA Management Specialist
- Susan McLean – FOIA Management Specialist
- Delphine Ndi – FOIA Analyst
A collection of the incoming FOIA requests attached to the email is available here. Those requests were submitted by various reporters from Mother Jones, ABC, NBC, Fox10 News of Mobile, various local newspapers, and ProPublica.
The Problem of FOIA Politicization
Unfortunately, there is nothing unlawful about an agency keeping separate “tracking” notes on FOIA requests submitted by members of the media. Nor is there anything unlawful in an agency keeping its communications officials, or even other parts of the Executive Branch, aware of incoming requests or outgoing records that could elicit media coverage or public inquiries. But the sort of intentional tracking and obvious backlog that has become standard procedure at the FAA is unacceptable and clearly violates the spirit of the FOIA. The fact that requests from the beginning of 2009 are still pending is inexcusable. The real danger of politicization at the FAA should be self-evident. When an agency is committed to treating media requesters in a special way, the tendency will always be to delay and obstruct disclosure, thus impairing FOIA rights and inhibiting the proper functioning of a critical media.
Ever since President Trump took office, the transparency community—including CoA Institute—has raised valid concerns about the White House’s coordinated effort to stifle transparency, both in the context of FOIA and with respect to congressional inquiries and oversight requests. This is an unfortunate development, and CoA Institute remains committed to fighting for open government. But insofar as the current Administration questions the value of President Obama’s legacy, it should commit itself to greater transparency. The Washington Post described the Obama Administration as one of the “most secretive,” “most elusive,” and “most punitive toward whistleblowers and leakers who want to bring light to wrongdoing they have observed from inside powerful institutions.” The Trump Administration should endeavor to do better. No one should fear the disinfecting power of sunlight, and the federal government is always in need of some cleaning.
Ryan P. Mulvey is Counsel at Cause of Action Institute
05/14/2018
Politics Clouding Criticism of the EPA’s Heightened Sensitive Review FOIA Procedures
Last week, a report from Politico revealed that the Environmental Protection Agency (“EPA”) maintains a burdensome “sensitive review” process for Freedom of Information Act (“FOIA”) requests concerning Administrator Scott Pruitt’s activities. According to internal sources, officials within the Office of the Administrator have “reviewed documents collected for most or all FOIA requests regarding [Pruitt’s] activities[.]” The Politico report further claims that this “high-level vetting” has increased, as compared with the policies and practices introduced during the Obama years. “This does look like the most burdensome review process that I’ve seen documented,” argued Nate Jones from National Security Archive.
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.
In addition to this viewpoint discrimination, the EPA suffered other transparency scandals. Former Administrator Lisa Jackson infamously used a fictional alter ego—“Richard Windsor”—to conduct agency business on an undisclosed government email account. And the EPA “misplaced” over 5,000 text messages sent or received by former Administrator Gina McCarthy and other top officials. The Obama-era EPA also tolerated the widespread use of personal email accounts by high-ranking bureaucrats, a practice that significantly frustrated public access to agency records and proved to foreshadow or parallel other FOIA scandals at the White House Office of Science and Technology Policy, the Department of Defense, and Department of Homeland Security, the Internal Revenue Service, and, most famously, the State Department. It is noteworthy that, in March of 2015, The Guardian—hardly a right-leaning paper—could seriously ponder: “Is the EPA having a transparency crisis?”
The history speaks for itself: the EPA under Scott Pruitt is not a new or unique threat to transparent government. The litany of FOIA abuses at the EPA and other agencies under both Presidents Obama and Trump demonstrate that we should fight the tendency to view the problem of FOIA politicization through a partisan lens. “Sensitive review” matured as a practice in the Obama Administration, and is continuing under President Trump, but there are institutional motivations for any and all bureaucrats, regardless of party affiliation, to frustrate the disclosure of records, particularly if they are embarrassing or raise the specter of media attention.
According to EPA Inspector General reports published in August 2015 and January 2011, the EPA’s FOIA regulations allow political appointees—including the Chief FOIA Officer and authorized disclosure official in the Office of the Administrator—to participate in approving requests and redacting records. Is it any wonder that an agency follows its own long-established rules for processing requests it deems “sensitive”? So long as the law gives the agency an opportunity to violate the spirit of the FOIA, the agency will take advantage of that discretion, even if it means violating statutory timelines for responding to requesters.
When Administrator Pruitt directed his staff to involve itself with the disclosure of records, he continued a tradition of obstructing the public’s right to access government information. He deserves the criticism he has received. But focusing on Administrator Pruitt’s (or President Trump’s) regulatory agenda, or his personal views on hot-button topics like global warming, obscures the underlying problem and makes it more difficult to reach consensus on how to address the real issues. The FOIA and implementing regulations, for one, need to prohibit “sensitive review,” or at least provide serious restrictions on its implementation. And guidance from the Department of Justice should address the troubling aspects that sensitive review can present. This should be part of a solution that everyone who believes in transparency can accept.
Ryan P. Mulvey is Counsel at Cause of Action Institute