The EPA should take steps to close loopholes in Freedom of Information Act regulations that allow for unnecessary political meddling according to a comment submitted to the EPA by CREW, The Center for Biological Diversity (Center) and Environmental Integrity Project (EIP). 

In 2019, the EPA quietly passed a sweeping overhaul of the rules governing its process for responding to records request under FOIA—allowing political appointees unprecedented authority to withhold documents and deny FOIA requests—and secretly implemented “policy directives” that politicized the FOIA process, increased delays and limited access to public records.

As part of a settlement agreement with the Center and CREW on aspects of this 2019 rule, the EPA agreed to delete problematic language in the rule, as well as to seek comment on methods for submission of FOIA requests and political appointees’ ability to delay the release of documents. Now, the EPA is also proposing more changes, including expedited review for environmental justice purposes—a welcome addition—alongside some concerning changes. Given the EPA’s historical lack of respect for the FOIA process, the groups sincerely hope that these past efforts are not in vain, and that the EPA takes meaningful steps to improve the FOIA process and expand access to public records in the spirit of government transparency.

CREW, the Center and EIP supported the EPA’s inclusion of a date-of-search cut-off—which would result in a fuller search and disclosure. We also supported the inclusion of environmental justice expedited processing criteria—which is a good step towards removing barriers to information for affected communities. 

However, among other recommendations, we urged the EPA to not funnel all FOIA requests to the D.C. office before sending them to regional offices for processing. During the Trump administration, this plan to shift where requests were sent was alarmingly coupled with directives to specifically flag “political” FOIAs for political appointees who would then review responsive records before sending them back to requesters, raising questions about politically motivated withholdings. The EPA should affirmatively bar the process of “political awareness review.” Additionally, the EPA should affirmatively state that it cannot partially withhold records based on responsiveness.

While the EPA’s efforts to clarify aspects of FOIA and the inclusion of an expedited review for environmental justice communities are important steps, CREW, the Center and EIP remain concerned that some revisions do not go far enough to prevent political meddling in the FOIA process. The EPA must fully address loopholes in the FOIA process so that it can be objectively transparent and accountable to the public.

Read the comment here.

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