The Environmental Protection Agency is making changes to its transparency rules that include explicitly granting the administrator the authority to decide which public records the agency will release or withhold.
The change in the Freedom of Information Act rule comes without the normal process of public input. It was not announced but instead was placed in the Federal Register for formal publication.
The rule change appears to allow, for example, the administrator to personally review his own documents, such as emails and calendars, and decide what to release and what to withhold, though he still must comply with the applicable laws governing the release of public documents. At federal agencies, that process is typically in the hands of career employees and attorneys.
The EPA says it has fielded an unprecedented level of requests under the Trump administration, and some of its disclosures under FOIA have resulted in embarrassing revelations about agency leadership and actions.
Political appointees at the Trump administration EPA have taken a keen interest in the handling of FOIA requests, even acknowledging instances where the process was tinged with political influence. Chief of staff Ryan Jackson testified last summer that he and aides would slow-walk “politically charged” requests, according to congressional Democrats.
The rule change adds the administrator to the enumerated list of political appointees who can personally review requests and make “final determinations,” the decisions about which records fall within the scope of the request and how to redact those documents.
Administrator Andrew Wheeler came into office last summer placing a “premium on transparency,” his spokesman said. His predecessor Scott Pruitt had kept “secret” calendars concealing his controversial meetings from public documents, a whistleblower revealed.
The rule change also centralizes the records process, blocking the EPA’s network of regional offices from accepting FOIA requests, as is currently done. Those requests will not be considered “received by the Agency,” the rule states.
The rule was also posted without a period for public comment, a normal procedure in the creation of federal regulations. The EPA said it was justified in doing so because the revisions “do not change the substantive standards” it uses and it cited a federal law that exempts changes to internal agency procedures from public comment periods.
The agency said in a statement that the changes “will bring the Agency into compliance with the Congressional amendments” to the original Freedom of Information Act law. “Congress provided all federal departments and agencies until the end of 2016 to update their FOIA regulations, the Obama administration failed to meet this deadline,” the statement said.
American Oversight, a left-leaning watchdog group that has repeatedly taken the Trump administration to court over slow responses to public records requests, said in a statement, “Giving appointees a political veto over transparency is a recipe for obstruction and deceit.”
“Nothing the EPA has done under this administration suggests its top leadership should be trusted to serve as intermediaries of the truth,” executive director Austin Evers said in the statement. “Public records belong to the public, not the government, and one of the strengths of the Freedom of Information Act is that it lets nonpartisan experts release information based on the law, not politics.”
The Sierra Club, which obtained tens of thousands of pages of internal EPA records through the Freedom of Information Act, said the revelations “may never have come to light with this change.”
“The only good news about this rule is that it is obviously and in-your-face illegal, and we will fight it tooth and nail,” said Pat Gallagher, of the group’s environmental law program.
The Interior Department has also expanded political reviews of FOIA requests, including silently establishing an additional layer of review by political appointees and proposing limits on the number of requests a person or group can make. The Interior Department disputes that it has a secret review process and says its proposed changes are in the name of efficiency.