A month ago, we flagged RollCall’s reporting that the Department of Interior formalized a process that allows Trump appointees to decide whether or not documents requested under FOIA would be released.
Apparently, the EPA saw something it liked in that approach. The Hill’s Miranda Green reported yesterday that Andrew Wheeler signed off on a new FOIA rule that does the same thing. (Whether it’s actually legal and will survive the inevitable litigation is questionable, to say the least, given that the DC Circuit court has apparently already ruled that you can’t do this.)
The policy gives a whole raft of political appointees at EPA the authority to decide “whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue ‘no records’ responses.”
While that may sound eye-bleedingly dull, what it means is that if, say, a reporter requests records that may be embarrassing for the Trump administration, Wheeler or any of his minions have a chance to step in and deny the existence of those records.
Traditionally, while there was some latitude for political appointees to prevent things from being released, they at least had to acknowledge that there were relevant records. That way the person requesting the files would know that records existed, but there was some specific reason why they couldn’t be released. And knowing that documents existed meant the filer could then choose to sue for the records, challenging the administration’s justifications for withholding.
But this new approach means that when someone gets a “no records” response, they won’t know if there actually aren’t any records, or if there are records but political appointees just don’t want to release them.
And that’s not the only change. To ensure that Team Trump gets to make these decisions, the EPA is also mandating that regional EPA offices funnel their FOIA requests through the EPA’s National FOIA Office.
That means local reporters dealing with local stories and requesting info from their closest EPA office will have to go through the DC headquarters--exactly the opposite of how Trump’s EPA has claimed it’s returning power to the states.
As Kevin Bell of Public Employees for Environmental Responsibility told The Hill, “This is just making sure that every FOIA request that gets reviewed gets taken down the hall or next door to Andrew Wheeler's office.”
So it’s probably safe to say that these moves are designed to keep the wraps on politically damaging documents, and as much as that may have once seemed like a conspiracy theory, at this point there’s no tin FOIA-l hats required.
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