Senators chastise EPA for changes to records policy

The Environmental Protection Agency made changes in late June to its policy for processing and returning Freedom of Information Act requests, but both Democratic and Republican members of the Senate worry that the changes violate established FOIA policy and that the agency failed to offer a public comment period.

A July 22 letter signed by Sens. Patrick Leahy, D-Vt.; Chuck Grassley, R-Iowa; Dianne Feinstein, D-Calif.; and John Cornyn, R-Texas, expresses “significant concerns” that the rule changes “appear to run contrary to the letter and spirit of FOIA.”

The policy makes four changes to EPA’s FOIA process:

  1. Political appointees at the agency have authority under the new rule to issue final determinations in whether to release or withhold documents requested under FOIA. While this is not expressly against FOIA, the senators worried that such an addition could increase delays in responses and could embolden political appointees to potentially delay or impact FOIA responses for political reasons.
  2. The rule changes where FOIA requests must be received, limiting their filing to the Washington, D.C., location of the agency, rather than any field offices. Because there is no notification process for individuals that file a FOIA request at the incorrect location, the senators worried that the public may not actually know that their request was rejected for location purposes.
  3. The rule authorizes agency officials to withhold a portion of information based on responsiveness to a FOIA request, meaning that the agency could redact documents provided under a FOIA request that does not directly relate to the reason for the request. But a D.C. Circuit decision from 2016 found that just such behavior violates the spirit of FOIA, and agencies cannot redact information provided in a FOIA document just because it does not specifically relate to a particular request.
  4. Finally, the agency released the changes without a public comment period, citing the “good cause” exception that allows agencies to forego public comment if the changes have insignificant impact or are inconsequential to the public. But the senators questioned how a rule that changed the request location and contents of FOIA submissions would not have a significant impact on the public.

“Given the potentially serious issues identified above, we urge you to reconsider your implementation of — or provide sufficient opportunity for public comment on — the ‘FOIA Regulations Update’ final rule,” the senators wrote.

“At minimum, we urge you to at least provide additional transition time to ensure that the public and requesters are fully aware of the nature and impacts of these policy changes.”

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