Legal Newsline

Saturday, November 16, 2019

Attorney: EPA abuses privileges to avoid FOIA

By Katelyn Kivel | May 2, 2016


WASHINGTON (Legal Newsline) – An opinion piece published by Forbes recently accused the Environmental Protection Agency of continuing to operate under a veil of secrecy, evading Freedom of Information Act requests. 

The agency frequently violates deadlines for FOIA compliance, says the author of "The Federal Information Manual," an American Bar Association publication about FOIA and other government information laws.

“Not all EPA records are public records, and there are some good reasons for not disclosing certain records—like business records that EPA has collected,” Balch & Bingham attorney Stephen Gidiere said told Legal Newsline. “But in my experience, EPA abuses privileges that should be very limited — like the deliberative process privilege — just to avoid embarrassment or to further its political objectives.”

EPA has employed multiple techniques to exploit loopholes in FOIA and the Federal Advisory Committee Act, more commonly known as the "Open Meetings Act," in order to avoid public disclosures, according to Forbes. 

For instance, Forbes reported that EPA employees met lobbyists at parks and cafes to avoid reporting requirements and used personal email correspondence to develop policy rather than government email addresses.

“The EPA is very strategic and aggressive in its policies generally, and this is seen in its approach to FOIA,” Gidere said.

And this has landed the agency in hot water before. Last year, Alabama coal company Drummond Co. filed suit against the EPA for failure to provide any justification for documents withheld from a FOIA request.

This came five months after a Washington, D.C., circuit court judge blasted the agency’s apparent apathy toward legal information requests.

“EPA frequently violates legal deadlines and other requirements for disclosing agency records under FOIA," Gidiere said. "Sometimes the agency just ignores the legal deadlines, and sometimes they use tactics to avoid disclosure like asserting privileges that shouldn’t apply. In many cases, this happens in high profile cases where EPA does not want the courts or the public to see how its decisions are made or to see vulnerabilities in its public positions.”

This policy of illegal secrecy runs afoul of  President Barack Obama's stated desire to have a transparent administration, Gidere added.

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Organizations in this Story

U.S. Environmental Protection Agency (EPA)U.S. Environmental Protection Agency (EPA)