EPA Has Completed FOIA Fixes But Needs New Policy, Watchdog Says


Note: This article, featuring our Senior Legal and International Analyst Samantha Feinstein, was originally published here.

The EPA got a passing grade from its internal watchdog on Aug. 27 for taking steps to save employees’ text messages and emails when the public and journalists ask for them.

But the Environmental Protection Agency must still follow through with its earlier plans to create an updated Freedom of Information Act policy and procedure for the entire agency, because a final rule the EPA issued in June changed the way the agency responds to public records requests, the Office of Inspector General said in a new report.

In all, the report said the EPA had completed actions in response to 13 earlier audit recommendations. They range from finding out whether any employees’ text messages that might have been relevant to a FOIA request were lost when employees switched phones, to developing policies governing staffers’ use of personal email for government business.

Other completed actions include putting steps in place to scan staffers’ alias email accounts, creating a plan to replace old phones that aren’t compatible with the agency’s phone management system, and reminding employees not to change their retention settings for text messages.

In a letter to the Office of Inspector General, Elise Packard, deputy general counsel for operations at the EPA’s Office of General Counsel, said the agency accepted the findings and would review and update its FOIA policy and procedures.

The recommendations from the agency’s inspector general date back to the Obama administration, and some of them were completed during that term. Since President Donald Trump took office, Congress had asked the EPA’s inspector general to audit the agency’s compliance with legal standards for saving electronic records and responding to FOIA requests.

Criticism on FOIA Responses

Public interest groups say the Trump EPA isn’t responding quickly or comprehensively enough to FOIA requests.

“The Trump administration hasn’t done anything to make FOIA more accessible, or to process FOIA requests as the statute requires” across the government, said Patrick Llewellyn, an attorney with Public Citizen’s litigation group.

Processing times “seem to be going up,” Llewellyn said. “They obviously don’t seem to be making it a priority. It seems like you have to litigate more, just because processing times are so long, even for simple requests that you may not have had to litigate previously.”

“Government corruption can often be diagnosed by how poorly FOIA requests are responded to,” said Samantha Feinstein, senior legal and international analyst at the Government Accountability Project.

“For environmental whistleblowers, access to information is essential to gain evidence and public support for their disclosures,” Feinstein said. “The EPA FOIA process is in a coma. It shouldn’t take two years to start responding to requests for information so vitally important to the public.”

The EPA said its June final rule that changed its FOIA policy was issued to correct obsolete information, reflect internal EPA realignment, and improve its response time to requests. The rule became effective on July 26.

But critics have said the new rule gives political appointees too much say over which records are released.

Two groups, Citizens for Responsibility and Ethics in Washington and the Ecological Rights Foundation, have filed separate lawsuits against the EPA, asking the U.S. District Court for the District of Columbia and the U.S. District Court for the Northern District of California to overturn the agency’s July rule as arbitrary and unlawful.