Federal Manager's Daily Report

Washington DC, June 2019: Acting WH chief of staff Mick Mulvaney, left, shakes hands with EPA administrator Andrew Wheeler after Wheeler signed the Affordable Clean Energy Rule at the EPA, repealing of one of the Obama era's two biggest climate change initiatives, the Clean Power Plan, and loosening regulations on coal plants. Image: Alex Brandon/AP/Shutterstock

In a letter that could send a message to all agencies, a bipartisan group of senators has asked the EPA to reconsider its decision to change its Freedom of Information Act policies in ways that they said “appear to run contrary to the letter and spirit of FOIA.”

Policies set in a recent final rule-making by the EPA among other things, put into the hand political appointees the power to make determinations whether to release or withhold documents requested under that law.

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“While FOIA does not preclude this authority, experience under the Obama administration and prior administrations shows that the involvement of political appointees making determinations can add unnecessary delays to the review process, potentially violating FOIA’s statutory deadlines. Expressly affirming appointees’ authority to issue final determinations may embolden future senior officials and increase the chances – under any administration – that final FOIA determinations are unnecessarily delayed or driven by political considerations rather than the law,” the letter says.

They also objected to a provision requiring that requests be sent directly to EPA headquarters, not to regional offices “that have been the point of easiest access to many requesters.” Further, under the policy those who send requests to anywhere but headquarters will not be notified of the requirement and those requests will not be considered, they wrote. The letter also says the change was made without the required public notice and said that the agency should provide that opportunity.

Meanwhile, several of the senators have introduced a bill (S-2220) to reinforce the law’s presumption of openness and transparency, prohibit withholding of information on the rationale that it is supposedly not responsive to the FOIA request, and overturn a court decision that broadened an exemption for information provided to the government by private companies.