March 5, 2013

Think tank says EPA helps friends' FOIAs, while foes' are delayed or blocked

Environmental Protection Agency officials are making an "on-going practice" of "near-immediate turnaround to provide records to environmentalist pressure groups," while imposing "starkly disparate treatment of groups with different perspectives but which are otherwise similarly situated," a conservative think tank charges today in a unusually lengthy Freedom of Information Act request."
In the 21-page request, Competitive Enterprise Institute Senior Fellow Christopher C. Horner said "the public particularly deserves to know
whether EPA is singling out groups it does not perceive as friendly to EPA's agenda for discriminatory treatment, in the form of denying fee waivers, placing a barrier to access at minimum to delay and possibly denying access to public records."
Horner said the FOIA request, which was officially filed late Sunday, came about "a result of our recent experience of agencies, particularly EPA, improperly using denial of fee waivers to impose an economic barrier to access, an improper means of delaying or otherwise denying access to public records, despite our history of regularly obtaining fee waivers. We are not alone in this experience."
Horner requested copies of all initial determinations by the agency's national FOIA office regarding FOIA requests received since Jan. 1, 2012.
News media and non-profit organizations typically request that federal agencies waive reproduction and other expenses associated with searching for and reproducing requested documents. Agency have some leeway in deciding whether to grant such requests and can delay responding to a waiver request beyond statuatory deadlines without fear of being disciplined or otherwise suffering negative consequences.
In an unusual twist, Hormer also asked that Larry Gottesman, EPA national FOIA officer, be excluded from responding to the latest CEI FOIA because in recent months he has subjected the conservative think tank "to a spate of apparently retaliatory actions in his official capacity."
As a result, Horner said, "Mr. Gottseman should have no role, formal or informal, in responding to any aspect of this request."
Horner and CEI are at the center of a growing scandal at EPA following publication of his book last September - "The Liberal War Against Transparency" - in which he revealed GAO and other documents that described or otherwise refered to the use of secret and private email accounts by agency officials to conduct government business.
At about the same time, the House Committee on Oversight and Government Reform opened an investigation into email use at EPA. Then, when EPA denied CEI's FOIA request for copies of all emails to and from then-Administrator Lisa Jackson, including those to an account for "Richard Windsor," the think tank appealed to the U.S. District Court for the District of Columbia.
In December, the court ordered EPA to turn over to CEI the estimated 12,000 Lisa Jackson/Richard Windsor emails in four separate groups, each of about 3,000 emails. The first group was released last month, the second earlier in February. Jackson announced her impending resignation on Dec. 27, 2012. Two of the agency's regional administrators have been found to have also used private or fake email accounts, with one resigning a few days after the information became public.
Federal laws and regulations require officials to use only their actual names and government email accounts to conduct official business in order to insure departments and agencies can comply fully with FOIA requests. When private email accounts are used, officials are required to make them available to FOIA processors.
Horner reminded EPA officials of President Obama's committment on his first day in the Oval Office to making the federal government the most transparent it can be under current law and regulations.
"If EPA claims any records or portions thereof are exempt under one of FOIA's discretionary exemptions we request you exercise that discretion and release them consistent with statements by the president and attorney general, inter alia, that 'The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over, starting today,'" Horner said.
He also pointed to Obama's direction regarding the FOIA law's fifth exemption, which allows, but does not require, agency officials to withhold documents related to the "deliberative process" prior to a decision, quoting the chief executive saying on Jan. 21, 2009, that "agencies are encouraged to make discretionary releases. Thus, even if an exemption would apply to a record, discretionary disclosures are encouraged."

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