EPA’s explanation for FOIA bias leaves a lot of questions unanswered

Brian McNicoll Former communications director for the House Committee on Oversight and Government Reform
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The Environmental Protection Agency has been under fire for weeks over allegations it treats right-of-center groups harshly when they request documents under the Freedom of Information Act but promptly assists left-of-center requesters.

The EPA finally has its response, and it looks like the agency took a page from the Politician Handbook and answered not the questions that were raised by Chris Horner, my colleague at the Competitive Enterprise Institute, but those it created specifically for this situation.

According to Politico, the EPA’s response can be summarized as follows: Our policy is to treat everyone the same, and although the numbers seem to show we didn’t often follow that policy, some of the numbers you’ve heard can be tweaked a bit if you will allow us to use our most peculiar way of calculating them — and besides, it’s not like we actually charged anybody any money over this.

Let’s untangle this — not only because it shows the agency lied but because it shows a level of disdain for sharing information with the paying public that should alarm all Americans.

At issue is what happens when groups submit FOIA requests to the EPA. When groups submit FOIA requests, they also request the fees for searching for and collecting information be waived under a provision of the Freedom of Information Act that says groups that plan to broadly disseminate information of general interest do not have to pay for it. This keeps the government from maintaining secrecy by making information unaffordable to the groups (many of which are quite small) that make these requests.

Horner, a senior fellow at CEI, ran into this after he revealed in his recent book, “The Liberal War on Transparency,” that EPA Administrator Lisa Jackson used a false name — Richard Windsor — as her email address for conducting official business.

He found out that some of the EPA’s allies, such as the Sierra Club and the Natural Resources Defense Council, routinely had their requests for information honored quickly and their fee waivers granted. CEI, meanwhile, had its requests for fee waivers denied and had to appeal almost every time it sought information.

So Horner FOIA’d the records of fee waiver requests and determined 15 of his last 17 had been turned down, but 85 of the 92 he looked at from environmental pressure groups were granted. CEI appealed all 15 denials and won on appeal each time, simply by restating the arguments it made in the original request. In other words, the agency turned down CEI’s requests not on any legal basis but simply to harass an organization that didn’t sing from the EPA hymnal.

The EPA says if all FOIA fee waiver requests are examined, the numbers don’t look quite as bad. The agency says it actually granted 11 of CEI’s 17 requests. But if CEI files a request, waits the required 20 business days for a response and hears nothing, it forces the action by filing a lawsuit — or, if the request was acknowledged but declined, appealing the decision.

When the court grants CEI’s requests — which it has in all 15 cases — the EPA sometimes follows that with a letter granting the original request. But the EPA had its chance to grant the request before the appeal, not after. And it is a farce to pretend otherwise.

The EPA’s defenders say CEI and Horner are too quick to the trigger — often filing suits within a week after the 20 days expires. But the law clearly requires the EPA to reply within 20 days. The EPA regularly misses deadlines as part of its strategy to delay the turnover of the documents that have been requested.

The EPA also says it’s not like CEI ever had to shell out money for these records. Of course, EPA never collected any money. It’s not allowed to by law. It’s required to provide, for free, information requested by groups such as CEI, which seek to broadly disseminate information of general public interest.

And, as Horner says, the agency “persists, even to this day, with a campaign of serially denying fee waiver requests outright or by refusing to grant them, buying time and costing its perceived enemies scarce resources to appeal and, far too often, sue, to compel the EPA to do what the law requires it to do.”

EPA spokeswoman Alisha Johnson says CEI’s claims “do not stand up against the facts” and that it is “unfortunate that CEI continues to present a narrative to the American people that is simply untrue.”

It’s unfortunate, all right. But it’s the EPA, not CEI, that’s pushing a false narrative.

Brian McNicoll is Senior Director of Communications for the Competitive Enterprise Institute (cei.org), a free-market policy organization in Washington, D.C.