By Elena Saxonhouse, Sierra Club
EPA Administrator Scott Pruitt’s attempts at secrecy are quickly becoming legendary – from installing a soundproof phone booth in his office, to using private email accounts for government business (then lying to Congress about that fact), to excluding reporters from his public events. But like his attempts to roll back public health protections, Pruitt’s attempts to operate outside of public scrutiny have run into the hard reality of the law. While some of the recent scandals swirling around Pruitt were exposed through other methods, many were revealed only because of an open government law called the Freedom of Information Act, or FOIA (sounds like “foya”).
FOIA requires that government agencies respond to requests for public records, and do so in a timely way. The term “public records” is defined very broadly, and can include internal documents, e-mails, phone logs, videotapes, recordings, and more. FOIA allows an agency to withhold records that fall within certain exemptions, like those for confidential business information or private personnel matters. If the agency fails to respond to a request for documents within twenty working days, the requester can sue in federal court. Failure to conduct a reasonable search or to adequately justify withholding documents are also grounds to challenge an agency’s response to a request.
The Sierra Club’s advocates and our Environmental Law Program have long used FOIA as a key tool to obtain information from the federal government on matters of public health and the environment. In the face of the rampant cronyism and secrecy in the Trump Administration, this work has ramped up significantly in the past year, and is beginning to bear fruit.
Here is a rundown of Sierra Club’s FOIA work, what it has turned up so far, and some of what to expect going forward.
Environmental Protection Agency
In early 2017, when the agency was supposedly under a hiring freeze, a large number of new employees joined EPA Headquarters – many with close ties to Pruitt, polluting industries, the Trump campaign, or other Republican politicians. In requests submitted last spring and summer, Sierra Club sought all communications between 22 of these new employees and individuals outside the agency, as well their calendars, phone logs and meeting sign-in sheets. We focused on communications outside EPA, as the role polluter lobbyists and political donors are playing in EPA policymaking is a key concern of Sierra Club and its members. If the former lobbyists currently installed as staff at the EPA are communicating with the companies they previously represented about EPA policy, those communications are public records.
Unfortunately, under Scott Pruitt the agency did not respond to these requests, requiring the Sierra Club to sue to obtain the documents. So far, the case covers the requests regarding Pruitt, his advance and scheduling staff (sisters Sydney and Millan Hupp), his chief of staff, (Ryan Jackson) his political lead in the Office of Air and Radiation (Mandy Gunasakera), and Samantha Dravis, the close Pruitt aide who recently resigned. Following the lawsuit filed last fall, EPA has begun producing documents, which led to blockbuster headlines in major national outlets including Politico, The New York Times (twice) and elsewhere about Pruitt’s meeting with a Trump fundraiser, and an ex-lobbyist’s role in planning virtually every detail of a trip to Australia for Pruitt. There are many more documents to come that may expose more of Pruitt’s secrets later this year.
Several other lawsuits against the EPA for failure to meet FOIA deadlines promise further insights into the agency’s workings.
The first, the Sierra Club’s “Meta-FOIA” case, which was first reported by The Washington Post, concerns EPA’s communications about how it handles FOIA requests. In that case, Sierra Club and legal counsel Earthjustice may gain information as to whether there has been any political influence on the processing of FOIA requests, and whether such influence partially explains the long delay in response times experienced by citizen advocacy groups.
The second case, explained here, seeks to uncover information about political appointees in the EPA Public Affairs Office and their questionable – and possibly illegal – use of staff time and resources to promote Pruitt and climate-change denial. Both these cases are in their early stages.
Yet another suit against EPA, filed just last week, investigates the communications and personnel status of Michael Dourson and Susan Bodine. Mr. Dourson is an advocate for manufacturers of pesticides, flame retardants, and other hazardous chemicals who President Trump nominated to be head of the agency’s Chemical Safety division. Ms. Bodine spent six years as a lobbyist for major polluters. President Trump nominated her to be head of EPA’s Office of Enforcement. Both were reported to be performing unspecified work at the Agency, before the Senate confirmed them to their positions. Mr. Dourson’s nomination was ultimately withdrawn when it was revealed that he had continued to communicate with his chemical-industry clients while he was awaiting nomination and after he lost the support of key Senate Republicans. Ms. Bodine has been confirmed.
Department of Interior
Like at EPA, there has been an influx of new political appointees and staff at the Department of Interior, now led by Secretary Ryan Zinke. Sierra Club took a similar approach for holding these officials accountable through records requests, seeking external communications, calendars, phone logs, and meeting sign-in sheets for Secretary Zinke, David Bernhardt, James Cason, Scott Cameron, Kathleen Benedetto, and Daniel Jorjani. Each of these senior staff members has close connections with the fossil fuel industry. The requests also include Susan Combs, who has opposed implementation of the Endangered Species Act and now has a role in shaping federal wildlife policy.
After Sierra Club sued the Department of Interior for its failure to respond to these requests, the agency agreed to begin providing documents regarding Mr. Jorjani, Ms. Combs, and Secretary Zinke, with the rest of the responses following. The agency agreed to a final target production date for responses to all of the requests this summer.
Department of Energy
When Secretary Rick Perry announced that the Department of Energy would be conducting a study on grid reliability, Sierra Club and others worried that a Perry-directed “study” would fabricate the absurd conclusion that coal-fired power plants that would otherwise retire for economic reasons should be propped up by consumers in the name of “grid reliability” – despite numerous existing studies showing that the grid will be fine. Sierra Club requested external communications regarding the study, and, after a lawsuit, turned up emails revealing how Peabody Coal had sought to influence the study.
Department of Homeland Security
The Sierra Club also sued for documents related to the planned border wall one day after the Trump administration waived 28 environmental laws to expedite its construction.
The litigation concerns three long overdue document requests seeking information about the government’s communication with contractors, the administration’s appropriations requests, siting of new border walls in the Santa Ana National Wildlife Refuge, construction timelines, and flooding risks created by border walls that have been proposed for the Rio Grande floodplain.
As a result of Sierra Club’s lawsuit, this information will be revealed soon.
In addition to the requests and lawsuits highlighted above, The Sierra Club and other environmental and good government organizations have submitted, and are holding the federal government accountable in court over, many other requests that seek records on specific policy issues like the delay of smog protections and the shrinking of national monuments.
With many more documents coming this year, Sierra Club will continue shining a light on the Administration’s destructive activities, whether they like it or not.