EPA’s FOIA Report Updates Progress on Backlog Reduction

June 29, 2022
While the EPA deserves credit for some “proactive disclosure,” its latest reporting still has a backlog of nearly 2,000 FOIA requests. Photo: Fort George G. Meade Public Affairs Office. Click to enlarge.

WatchDog Opinion: EPA’s FOIA Report Updates Progress on Backlog Reduction

The U.S. Environmental Protection Agency is making progress on its backlog reduction plan for the Freedom of Information Act. It still has a way to go.

The FOIA can be one of a journalist’s most powerful tools and it’s worth taking a wider look at the environmental agency’s FOIA reports to see how well it is working there.

As administrations have come and gone over the decades, the EPA’s FOIA performance has all too often been lacking. But every year, every federal agency puts out a FOIA report summarizing its performance with hard statistics.

You might be wondering how the EPA is doing on open information overall, since the FOIA is only part of the picture. Well, we could have a long discussion about the EPA press office, or the EPA’s website, or its open meetings, or its preemptive disclosure — or a lot of other things. For now, let’s just look at the FOIA.

 

It’s not about EPA’s press office

Regardless of whether the EPA’s press office is giving reporters enough access (we see signs of improvement — and room for more), the first thing to recognize is that the press office has almost nothing to do with the FOIA.

Yes, EPA Administrator Michael Regan said he would try to restore the EPA “fishbowl” of transparency. But if you want to know about the FOIA, you have to look to the FOIA office. That’s under the Office of General Counsel, or OGC. And therein lies a tale.

 

During the most recent reporting year, the EPA

reduced its backlog of FOIA requests from 2,358

to 1,900 nationwide. Progress, not perfection.

 

During the Trump administration, which critics complained was hostile to open and accurate information, the FOIA offices were moved at both the EPA and the Interior Department. Interior put the FOIA under its solicitor’s office (similar to the OGC). Moreover, the Trump administration centralized FOIA functions at both agencies.

The key question is whether this politicized agency FOIA response.

There was a dust-up over this in 2019. The Society of Environmental Journalists (joined by 38 other journalism organizations) formally objected to the EPA’s action, and the EPA shot back. It may be water under the bridge, but it is key context for the EPA’s current FOIA performance.

 

Backlog reduction, sort of

The WatchDog read the EPA’s 2021 FOIA report (so you don’t have to). There is another, differently focused report to look at: the 2022 Chief FOIA Officer Report. Both were issued in March 2022.

During the most recent reporting year, the EPA reduced its backlog of FOIA requests from 2,358 to 1,900 nationwide. Progress, not perfection.

The reporting period was Oct. 1, 2020, through Sept. 30, 2021. That includes the last three-and-a-half months of the Trump administration, but much more of the Biden administration. If you look back, the numbers suggest that even more backlog reduction took place during the Trump years.

Of the 6,943 requests that the EPA received in FY2021, 3,038 were fully granted, 1,129 were partially granted, 777 were withdrawn and 1,025 found no responsive records. The exemption resulting in the largest number of denials (918) was exemption No. 6 — for matters of personal privacy.

Yes, the EPA actually does have a backlog reduction plan. There are two reasons why this is important.

Reason No. 1: You are tired of waiting for a full response to your FOIA request.

Reason No. 2: Some agencies in the past have generated backlogs and then used the backlog as an excuse to reduce FOIA responsiveness. The backlog reduction plan was announced back in 2017 under Trump’s then-Administrator Scott Pruitt.

To give the EPA credit where due, the agency has met the 20-day statutory response deadline on more than half of simple requests and has virtually eliminated the backlog of administrative appeals.

 

Where are the biggest backlogs?

What about the big fraction of cases where the EPA does not meet the 20-day deadline?

Journalists should know that the “simple” requests are the ones that get faster results. “Complex” and large requests are what take extra time. Think about this when formulating yours.

It also helps to know that the biggest backlogs are in the Office of Chemical Safety and Pollution Prevention, the Office of Water and the Office of the Administrator. The EPA is developing a pilot program to get FOIA help from outside contractors in these offices.

Some interesting facts pop up in the report. The FOIA processing fees the EPA collected during FY2021 totalled $36,921. The EPA’s processing costs were $36,745,000. Surprisingly, the number of employees (full-time and equivalent) working on fulfilling FOIA requests nationwide was 210 nationwide, with 92 of those at headquarters.

The news is bleak, though, for people requesting expedited processing (like reporters): The EPA granted only seven such requests and denied 237.

 

Greater ‘proactive disclosure’

While the WatchDog will continue to sniff and growl at the EPA’s FOIA office, the agency deserves considerable credit for performing what the law calls “proactive disclosure.” Who can measure this meaningfully? The EPA is way better than many other agencies.

 

Rolling back Trump mischief, the EPA is

again posting the calendars of the top

agency brass. Only a week or two late. Still.

 

The EPA website has improved greatly — disclosing more — since the start of the Biden and Regan years. That’s proactive too. Rolling back Trump mischief, the EPA is again posting the calendars of the top agency brass. Only a week or two late. Still.

Some reporters may be glad to hear they can get (via the FOIA ) the visitor logs for all EPA buildings. And we do thank them for re-posting the PIO phone list.

Left over from the Trump era, though, is the relocation of the EPA’s National FOIA Office and chief FOIA officer to the Office of General Counsel.

This might be a good thing if it resulted in better agency adherence to the FOIA law. But it also leaves some observers confused about whether the nominal chief FOIA officer (a position established by law) has actually been superseded by the EPA general counsel, a political appointee who is confirmed by the Senate.

Is this a way of avoiding lawsuits or keeping the lid on sensitive information? Or does it elevate the office?

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, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.


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