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.

A “direct final rule” is a type of rulemaking that bypasses the standard notice-and-comment period that affords the public an opportunity to give an agency feedback on its proposed regulation and that allows the agency to address any possible problems.  In this case, the EPA claimed that it was merely making “procedural” and “administrative” changes that would not affect the substantive rights of FOIA requesters and would only bring the agency into compliance with recent legislative reforms—including the FOIA Improvement Act of 2016.  In a rare move, the agency published a press release that pushed back against what it viewed as “misrepresentations” from the news media and the transparency community.  The EPA’s attempts to control the public narrative, however, have been rather unsuccessful.  Members of Congress on both sides of the political aisle have condemned the agency’s rule (here and here) and are considering legislation to overturn it.  At least one non-profit group has filed a lawsuit to vacate the rule.

Substantive Legal Deficiencies in the EPA Rule

The potential problems with the EPA’s direct final rule can be approached in two ways: in light of (1) substantive legal deficiencies and (2) procedural violations during promulgation.  With respect to substantive legal issues, many of the changes in the rule are actually non-controversial and even desirable from a transparency perspective.  For example, the EPA has finally incorporated the statutory definition of a “representative of the news media,” which Congress codified with the OPEN Government Act of 2007.  CoA Institute has long been at the forefront of ensuring agency adoption of that definition.

But not all the changes in the rule are welcome.  In Section 2.103, for example, the EPA explicitly identified the agency officials authorized to issue “final determinations” on FOIA requests.  That list includes many political appointees, which gives the impression that career staff may now be excluded from final FOIA decisions.  That change is likely lawful and, in terms of actual practice, career and political staff are always involved in issuing FOIA determinations.  As a matter of policy, though, the explicit authorization for political appointees to direct FOIA processes gives a troubling impression and may open the door to abuse.  CoA Institute’s investigation into the phenomenon of sensitive review reveals why this would be the case.

More concerningly, Section 2.103 appears to permit agency officials to issue final determinations that could deny access to records on the basis of “responsiveness.”  Specifically, the EPA’s new rule allows officials to decide “whether to release or withhold a record or a portion of a record on the basis of responsiveness” or under a statutory exemption.  That language, at least in part, runs afoul of the D.C. Circuit’s decision in American Immigration Lawyers Association v. Executive Office for Immigration Review (“AILA”).  The AILA court ruled that agencies cannot use “non-responsiveness” as a sort of “tenth exemption.”  Although an agency may refuse to disclose an entire record as non-responsive, it cannot do so on a piecemeal basis.  (CoA Institute is challenging the Department of Justice’s guidance on how to define a “record” in light of AILA.)  The success of a substantive challenge to Section 2.103 likely hinges on whether the EPA intended its language to challenge the AILA ruling.  The agency will probably argue that the ambiguity is merely the result of poor wording.

Procedural Deficiencies in the EPA Rule

The EPA rule is more susceptible to a procedural challenge.  In relevant part, the Administrative Procedure Act (“APA”) permits agencies to forego public comment whenever they issue “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”  Public comment also is optional whenever an agency “for good cause” decides that it would be “impracticable, unnecessary, or contrary to the public interest.”  The EPA relied on both the procedural and “good cause” exceptions in issuing its FOIA rule.

Again, many of the changes in the EPA rule are consistent with the FOIA.  In those instances—for example, when incorporating the statutory definition of a news media requester or updating the timeline for filing an administrative appeal—the agency’s decision to bypass public comment was permissible.  But with Section 2.103, the decision to introduce language that could violate AILA may have triggered the obligation to solicit public feedback.

Insofar as the D.C. Circuit has prohibited agencies from “withholding” portions of records as “non-responsive,” any regulatory provision that mandates the contrary, and inhibits access to complete agency records, would negatively impact the substantive rights of FOIA requesters.  Section 2.103 specifies and expands that kinds of FOIA determinations that can be made; it is reasonable to conclude that public comment was required for such a change.  The FOIA itself already requires notice-and-comment rulemaking on numerous other matters, including fee schedules, expedited processing, request aggregation, and less consequential issues such as multitrack processing.  Public comment should have been required here, too.

If the EPA had taken the extra step of publishing a proposed rule, instead of attempting to avoid any unpopular reaction as the Department of Interior faced at the beginning of the year, the agency would have gotten helpful feedback to resolve the ambiguity in Section 2.103 and it could have improved its strained relations with the requester community and Congress.  Hopefully, the continued controversy (and litigation) over the EPA’s rule will be a lesson to other agencies.

Ryan P. Mulvey is Counsel at Cause of Action Institute