The EPA announced a new rule that authorizes political appointees to act as gatekeepers for Freedom of Information Act (FOIA) requests and illegally adopted it without giving the public notice and an opportunity to comment in violation of the Administrative Procedure Act, according to a lawsuit filed by CREW. The lawsuit asks the court to declare that the EPA violated federal law and vacate the 2019 rule.
When EPA last amended its FOIA regulations in 2002, it followed legally mandated rulemaking procedures, including a notice-and-comment period. But the agency dodged those procedures in adopting the 2019 FOIA rule. EPA instead invoked the “good cause” and “procedural rule” exceptions to the rulemaking procedures. But neither of those exceptions applies to the rule, which EPA appears to have rushed through in order to avoid addressing the inevitable public interest and backlash it has already generated.
EPA’s hastily-adopted rule serves as further proof of the agency’s increased politicization by the Trump Administration. Under the new rule, political appointees are authorized to make “final determinations” on FOIA requests, rather than career officials with the experience and qualifications necessary to make critical FOIA determinations. This move comes after senior EPA officials, including disgraced former EPA Administrator Scott Pruitt, adopted internal policies and practices designed to delay responses to “politically charged” requests, and empower political appointees to review and approve responses to such requests.
EPA’s FOIA rule violates basic rulemaking procedures under the law, not to mention the letter and spirit of FOIA. EPA’s actions will significantly impede current pending and future FOIA requests that implicate high-level political appointees and significant policy decisions at EPA. The rule should be invalidated.