With the release last month of proposed new EPA regulations on how the agency intends to handle responses to requests under the Freedom of Information Act (FOIA), critics have raised concerns about provisions that would give authority to senior management officials (i.e., political appointees) to issue final determinations, including on “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 these critics question whether political appointees have sufficient knowledge of the scope of potentially responsive records as career staff supposedly do, this assumes that the current status quo is working to produce timely and substantive responses to FOIA requests.
In my experience, that is simply not the case. The status quo is mere kabuki theater, with government officials going through the bureaucratic motions to dismiss FOIA requests without providing the requested data, even in circumstances in which the release of such data is mandated and clear under existing FOIA guidelines. Increasingly, and particularly with the current Administration, career staff are using various FOIA exemptions, such as the requirement not to disclose “private patient information,” to avoid disclosing critical data (from community studies and other scientific reports) that serve as a basis for regulatory or enforcement action. This is done to prevent third parties who may be affected by the given regulation or enforcement action from being able to undertake their own critical review of such data. This is the equivalent of requiring a defendant to accept at face value the testimony of a prosecutor’s expert witness.
A recent experience highlights this charade rather well … names have been scrubbed to protect the innocent (and the not-so-innocent too):
- Early 2017 – EPA files a complaint against an industrial facility alleging an imminent and substantial endangerment, relying on the results of EPA-funded community research to support their allegations.
- June 2017 – First FOIA request filed seeking all records pertaining to the EPA-funded community studies.
- Next 10 months – EPA staff and company representatives work to come to an agreement to narrow the FOIA request to the underlying raw data for the research program with appropriate redaction to maintain the confidentiality of the research participants.
- May 2018 – EPA nevertheless denies the narrowed FOIA request citing fear of potential disclosure of the personal health information of study participants. These fears were promoted by a federal agency researcher with a vested interest in the underlying data at issue (and her interpretation of that data).
- October and December 2018 – Second and third FOIA requests filed for the underlying raw data from the community research program.
These subsequent requests rely on guidance developed by the Department of Health and Human Services (“HHS”) to facilitate disclosure of research data — guidance that is highlighted by EPA as part of its recent “strengthening transparency in regulatory science” proposed rule. If records are redacted pursuant to the guidance, the information is no longer considered protected personal health information and therefore subject to disclosure.
- EPA refuses to engage on questions regarding disclosure pursuant to the HHS guidance and how it could be used to facilitate release of the underlying raw data.
- November 2018 and March 2019 – EPA summarily denies the second and third FOIA requests without addressing the HHS guidance identified by the agency as part of its “transparency in regulatory science” proposal.
- July 2019 – A request for assistance is filed with the Office of Government Information Services (OGIS), which has a stated mission to assist the public and Federal agencies by helping them resolve their FOIA disputes. OGIS responds with a pro forma statement regarding the FOIA appeals process, recommending that “the best course of action is to wait until EPA adjudicates your appeal.”
- All appeals remain pending … which should come as no surprise to anyone who has ventured down the EPA FOIA rabbit hole.
In sum, the FOIA status quo empowers career EPA staff with vested interests in an enforcement or regulatory action to stymie third party review by citing, without any substantive explanation or rebuttal, the exemptions prohibiting disclosure of personal medical information even when there are ready means to provide the requested data and not impinge on privacy rights. In the case noted above, it is abundantly clear that EPA is daring the FOIA requesters to file a lawsuit to enforce their rights and obtain data to which they are quite obviously entitled.
This charade must stop.