Group says Obama administration officials skirting FOIA laws

Michael P. Tremoglie Sep. 13, 2012, 10:44am


WASHINGTON (Legal Newsline) - The Competitive Enterprise Institute has filed a lawsuit alleging an Obama administration official is using a private email account to evade Freedom of Information Act requests.

It also claims that this is a common practice by the Obama administration. The lawsuit was filed Tuesday in the U.S. District Court for the District of Columbia.

Specifically, it is alleged that the Environmental Protection Agency Region 8 Administrator James Martin is using a private email account that only he controls or can access. By doing so, the EPA claims it cannot compel him to reveal emails in response to a FOIA request by CEI.

According to the complaint, "This lawsuit seeks to compel EPA to respond fully and completely to one Freedom of Information Act request dated May 1, 2012. The request sought specifically described records sent to, from or copied to any email address used by EPA Region 8 for official or work-related duties, expressly including accounts not provided by EPA for the conduct of Mr. Martin's official business."

According to William Yeatman, an analyst for CEI, "The basis of our FOIA request was that we knew from a Colorado Open Records request that Martin was using a private email account to conduct official business as the head of the Colorado Department of Natural Resources and also the Colorado Department of Public Health and the Environment. He was collaborating with employees of the Environmental Defense Fund during negotiations regarding the 2010 Clean Air and Clean Jobs Act which required fuel switching from coal to natural gas."

Martin used to be an official with the Environmental Defense Fund. One of the objectives of the EDF is to eliminate the use of coal to provide energy.

According to the complaint, CEI asserts, "For five months, EPA has refused to produce responsive records. Certain records at issue in this matter, those that were sent to or from Mr. Martin's private email account, reflect a practice, the widespread nature of which is only now emerging, of government employees using non-official email accounts to conduct official duties, avoiding creation of the official record required by federal statute and regulation."

The CEI said the issue "demonstrates the epidemic in the Obama administration of moving controversial actions to non-public email accounts. By exposing this practice, the suit will pave the way for obtaining all such public records stashed in private corners and thus out of reach of the nation's transparency laws, which clearly prohibit this kind of activity."

The May FOIA sought correspondence between Martin and the EDF, where Martin had previously worked as a senior attorney. CEI wants to determine the extent to which policymaking in the Obama Administration's EPA is being coordinated with outside environmental pressure groups.

The EPA acknowledged the May FOIA request, waived its fees and provided copies of some responsive records sent to or from Martin's EPA-provided email account. But, said CEI, it also withheld two identified agency records, and denies that other requested records sent to or from non-official email accounts are agency records.

This denial was appealed on July 19. But the EPA has not responded to that appeal. Therefore CEI determined that it would sue to compel the EPA to release emails from Martin's private account. The court will have to determine if private emails are not subject to FOIA requests as the EPA claims.

CEI expressly extended its request to cover information from Martin's non-official email accounts, based on what it claims was a history of him using such accounts to perform official business.

"Transparency in government is the subject of high-profile promises from President Barack Obama and Attorney General Eric Holder," CEI Senior Fellow Chris Horner said in a CEI communique. "In fact, they've argued forcefully against the very activity that is the target of this litigation-namely, subverting open government by conducting official business through non-official channels."

The EPA responded to inquiries about the lawsuit with a statement.

"EPA is strongly committed to transparency and strictly complies with open government laws such as the Freedom of Information Act. We will review this lawsuit closely and respond as appropriate," spokeswoman Enesta Jones said.

Patrick Garry is a law professor at the University of South Dakota's law school. He specializes in Constitutional law and media issues.

"The tough part of this is to prove that one is evading the Freedom of Information of Act," he said. "One has a right to privacy.

"But their case is not doomed simply because of privacy or First Amendment rights - otherwise everyone would be able to circumvent the Freedom of Information Act. There has to be a threshold level of proof. There has to be evidence existing, they have to offer credible proof that the Act is being evaded."

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