WatchDog TipSheet: Conflict Over EPA, Interior FOIA Policies May Come to Head in 2020
By Joseph A. Davis
EDITOR'S NOTE: This story is one in a series of special reports from SEJournal that looks ahead to key issues in the coming year. Visit the full “2020 Journalists’ Guide to Energy & Environment” special report for more.
Documents make journalism. That’s why open records will remain a battleground in 2020 at the U.S. Environmental Protection Agency, the Interior Department and other agencies on the environmental beat, as Freedom of Information Act, or FOIA, requests continue to fuel probing journalism and the rules for disclosure are themselves likely to be a controversy.
Case in point: A highly contested late-2018 proposed Interior Department FOIA rule change was partly softened after an outpouring of negative comments from environmental and journalism groups (including the Society of Environmental Journalists). The final version was issued in October 2019. It faces tests in 2020.
Another contested FOIA rule change came in June 2019 from EPA. The agency took the unusual (and possibly illegal) step of issuing the rule change as “final,” without a period for public comment.
SEJ and a broad coalition of journalism groups opposed the rule, saying it would make public records harder to get. The rule’s status remains cloudy and 2020 may see further efforts to resolve the issue, either in courts or in Congress.
The FOIA battles of 2019 grew out of the ethics scandals of 2017 and 2018 at EPA (may require subscription) and Interior — which themselves often grew from a rich trove of documents uncovered in FOIA requests from journalists and environmental groups. Heads of both agencies resigned amid the scandals.
In 2020, the new heads of both agencies seem on track to face similar ethical scrutiny. EPA Administrator Andrew R. Wheeler and Interior Secretary David Bernhardt have left document trails that journalists have mined using FOIA.
Not surprising, then, that both Interior and EPA have changed FOIA rules in ways that give political appointees more control over what documents are released and expand the grounds for nondisclosure. Expect lawsuits in 2020.
Interior Dept. fiddles with FOIA rules
At most agencies, most of the time, FOIA searches and reviews are done by trained professional staff. FOIA law sets up a designated chief FOIA officer at each agency, clearly responsible for seeing that legal requirements are met. Lawyers and political appointees get involved rarely, typically when a legal appeal is likely.
The FOIA law also sets out clear, mandatory requirements for what government records must be disclosed (most of them) and those that can be withheld under one of nine main exemptions. But every agency customizes the requirements of the FOIA law to its own circumstances via implementing regulations. It was those regulations that changed at Interior and EPA in 2018-19.
|Days before resigning, former Interior Secretary Ryan Zinke (above) put in charge of the agency's FOIA program a former adviser to the billionaire conservative Koch Brothers, who had a stake in the oil coming from federal land. Photo: Gage Skidmore, Wikimedia Commons. Click to enlarge.|
It came as a surprise that in December 2018, just days before former Interior Secretary Ryan Zinke’s resignation (may require subscription), Zinke quietly issued a secretarial order putting Daniel Jorjani in charge of the entire FOIA program at the agency.
Jorjani, a political appointee, was then deputy and acting solicitor at the agency. He had previously been a key adviser to the billionaire conservative Koch brothers, who had a stake in the oil coming from federal land and who were pushing a deregulatory agenda.
When the proposed revisions to Interior’s FOIA regs came out two weeks after Zinke’s resignation, Jorjani was the official who signed them.
After a hold related partly to his FOIA role, the Senate confirmed him by a largely party-line 51-43 vote on Sept. 24, 2019, to be Solicitor. Even before the Senate confirmed him, Interior’s Office of Inspector General had begun an investigation into his role in setting up the FOIA policy. The results of that investigation may appear in 2020.
Perhaps because of this brouhaha, or because of thousands of negative comments on its proposed FOIA rule, Interior drew in its horns somewhat when it issued a final FOIA rule Oct. 25, 2019.
Opponents of the original proposal acknowledged that it had been softened, but the ultimate effect of the rule remained to be proven in actual practice — the proof is likely to come in 2020.
One readout of the revised rule is an analysis by the Reporters Committee for Freedom of the Press. Legal fellow Gunita Singh lists not only the parts of the original proposal that were taken out, but also the parts that were left in.
For example, Interior removed provisions that would have undermined response deadlines and set limits on how much information a requester could ask for. But it kept restrictions on expedited processing, a FOIA feature of special value to journalists on tight deadlines.
Politicized ‘awareness reviews’ at Interior
The biggest question, in a nutshell, is whether political appointees will have power under the new rules to cause the agency to withhold information which FOIA would otherwise require Interior to disclose.
One of the most worrisome parts of the proposed rule said that if requesters did not describe what they wanted with enough specificity, Interior would simply ignore the request.
This part was dropped from the final rule — removing a tool political appointees might have used to make subjective denials of information requests. But that is hardly the end of the story.
One of the key channels for political
interference with FOIA at Interior
was not ever part of the proposed rule.
It was an off-the-books procedure
called an “awareness review.”
One of the key channels for political interference with FOIA at Interior was not ever part of the proposed rule. It was an off-the-books procedure called an “awareness review.” It started as early as May 2018, but was not known publicly until documentation later came to light via a FOIA request.
As it evolved through several iterations, an “awareness review” allowed high-level political appointees to review material that might go out in response to FOIA requests before it was released — and to delay release indefinitely, particularly when the information pertained to themselves.
That policy is still in place. Expect it to also generate controversy in 2020.
Environmental groups asked Interior’s Inspector General to investigate the “awareness review” policy in June 2019. By September 2019, some Congress members, led by House Natural Resources Committee Chairman Raúl Grijalva (D-Ariz.), also asked Interior’s IG to investigate.
The IG office announced it was doing so in July 2019. Interior installed a new IG, Mark Greenblatt, in September. To date, no results from the probe of awareness reviews have been announced. Maybe it will be in 2020.
EPA procedural shortcut prompts objections
Similar struggles over FOIA are still going on at EPA.
The June 2019 rule change aroused controversy, first of all, because it was declared “final” right off the bat. The Administrative Procedure Act mandates that most federal rulemakings must be published in proposed form and subjected to public comment before they are made final by the agency.
The law may allow some limited exceptions to this procedure in cases when a rule change involves inconsequential housekeeping. In issuing its rule, EPA claimed two such exemptions.
When a coalition of 39 news media and journalism organizations also wrote EPA on July 9, 2019, objecting to the EPA rule, the notice-and-comment bypass was one of their key objections. SEJ was one of those groups and wrote its own letter of objection as well.
Although EPA claimed its rule change was routine and inconsequential, SEJ and other media groups did not think so. They complained that the rule change would “diminish journalists’ ability to gather and report information to the public about the actions of the EPA and its personnel.”
Can appointees override FOIA requirements?
EPA’s rule change and objections to it involved a number of important mechanical changes in the process by which FOIA requests are received, processed and responded to.
Just as with Interior, a key controversy
was over whether political appointees
could unilaterally and arbitrarily override
FOIA legal requirements and
decide to withhold information.
But, just as with Interior, a key controversy was over whether political appointees could unilaterally and arbitrarily override FOIA legal requirements and decide to withhold information.
As the media coalition put it: “First, the provision stating that the EPA Administrator and other senior officials may decide ‘whether to release or withhold a record or portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue “no records” responses’ is contrary to law and should be removed.”
In other words, the power to declare that there are no records responsive to a FOIA request is tantamount to power to withhold any records.
The revised EPA rule gives this power to “The Administrator, Deputy Administrators, Assistant Administrators, Deputy Assistant Administrators, Regional Administrators, Deputy Regional Administrators, General Counsel, Deputy General Counsels, Regional Counsels, Deputy Regional Counsels, and Inspector General or those individuals' delegate.”
Many of these people are political appointees.
SEJ singled out for attack
The most important issue that SEJ raised — and the key focus of EPA’s criticism — was whether political appointees could intervene in agency FOIA responses.
EPA said SEJ and other news media were wrong to assert that the rule expanded political appointees’ power to withhold FOIA’d information, because political appointees had already held that power.
Ultimately, this issue will not be litigated via press release, but in the courts. One lawsuit challenging the EPA rule was lodged in July 2019 by two environmental groups, the Center for Biological Diversity and the Environmental Integrity Project. Another was filed in July 2019 by the good-government group Citizens for Responsibility and Ethics in Washington, or CREW.
These are certainly unsettled controversies. The core issue is whether political appointees whose actions have been questioned on ethical grounds can withhold documents that may prove or disprove their own alleged wrongdoing.
Whether conflict of interest by regulators is revealed to the public is determined in large part by investigative journalists using FOIA to its fullest.
And whether FOIA can help journalists to do their work will be determined by litigation whose results we may see in 2020.
Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet and Reporter's Toolbox columns. Davis also directs SEJ's WatchDog Project and writes WatchDog Tipsheet, and compiles SEJ's daily news headlines, EJToday.
* From the weekly news magazine SEJournal Online, Vol. 4, No. 46. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.