FOIA

Not Just the IRS: Federal Agencies Are Politicizing the FOIA Process, Too

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Courtesy of Congresman Darrell Issa

The IRS isn't the only federal agency under Pres. Obama to have politicized its mission.

The Department of Homeland Security and the Federal Communications Commission have both been accused of politicizing the process by which outside group request information from the agencies. And today, the Environmental Protection Agency joins that list for "routinely" waiving freedom of information fees for environmentalist groups while routinely denying fee waiver requests filed by think tanks that frequently criticize the EPA. The Washington Examiner reports that:

For 92 percent of requests from green groups, the EPA cooperated by waiving fees for the information. Those requests came from the National Resources Defense Council, EarthJustice, Public Employees for Environmental Responsibility, The Waterkeeper Alliance, Greenpeace, Southern Environmental Law Center and the Center for Biological Diversity.

Of the requests that were denied, the EPA said the group either didn't respond to requests for justification of a waiver, or didn't express intent to disseminate the information to the general public, according to documents obtained by The Washington Examiner. CEI, on the other hand, had its requests denied 93 percent of the time. One requests was denied because CEI failed to express its intent to disseminate the information to the general public. The rest were denied because the agency said CEI "failed to demonstrate that the release of the information requested significantly increases the public understanding of government operations or activities." Similarly, requests from conservative groups Judicial Watch and National Center for Public Policy Research were approved half the time, and all requests from Franklin Center and the Institute for Energy Research were denied.

FOIA fees can add up in a hurry, so it's not uncommon for requesters to argue that their fees should be waived. The criteria for asking for a waiver is pretty simple. The EPA lists a two-part criteria:

The FOIA Office will grant a fee waiver request if the requester adequately shows, based on all available information, that (1) disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and (2) is not primarily in the commercial interest of the requester. The FOIA Office considers fee waiver requests on a case-by-case basis, because EPA is not allowed to give fee waivers to requesters on a class basis.

Easy, right? Nope, becase the EPA claims quite a bit of an interpretive license when determing whether requesters have "adequately showed" etc., etc.:

The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be "likely to contribute" to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding when nothing new would be added to the public's understanding.

Whether disclosure of the requested information will contribute to "public understanding." The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public will be considered. It will be presumed that a representative of the news media will satisfy this consideration.

Factor 4. The significance of the contribution to public understanding: Whether the disclosure is likely to contribute "significantly" to public understanding of government operations or activities. The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced significantly by the disclosure. The FOI Office will not make value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is "important" enough to be made public.

Bolding mine. Using those metrics, the EPA was able to deny FOIA fee waivers from groups that criticized it, while charging nothing to fill FOIA requests filed by pro-environmental groups.

More troubling: The EPA isn't the first federal agency under Obama to make FOIA decisions based on a requester's politics. In July 2009, the Department of Homeland Security instituted a new rule requiring career FOIA employees to route information requests through political appointees in Secretary Janet Napolitano's office. If the request came from Congress, career employees were expected to alert political appointees to the party affiliation of the office making the request. The policy lasted for roughly a year, and was discontinued when the Associated Press's reporting led to an investigation by the House Oversight Committee.

Smack in the middle between the EPA and DHS incidents is the Federal Communications Commission, which in 2011 was accused of expediting an insanely broad request from the left-leaning Citizens for Responsibility and Ethics in Washington while at the same time maintaing one of the highest rejection rates of any federal agency. 

The Daily Caller described it thusly:

CREW's request sought "any and all records … of any kind … regardless of format, medium, or physical characteristics" within that four and a half year timespan "referencing or pertaining to News Corp and/or Rupert Murdoch."

The July 15, 2011 request, the organization said, was made in response to the U.K. phone hacking scandal that rocked Murdoch's News Corp. media empire. On August 9, 2011 the cache was delivered.

Why are those circumstances so extraordinary? Because FOIA requests, if they're to be accepted (not to mention completed) have to be relatively precise: If you want emails, you need to tell the agency who you think sent them or received them, roughly when they were sent/received, and what they were about. If you want internal memos, you need to know what division of a department generated them, what they concern, and when they were distributed. It's possible to get a FOIA request without submitting those details, but it's far more likely your request will be rejected for being overly broad. 

That should have happened to CREW. Instead, the group's request was turned around in a little over three weeks and netted them over 200 pages of documents. If that were happening for everybody, I'd be thrilled. But when you consider that the request was for everything the FCC had on FOX, then in the middle of a lawsuit with the FCC, and everything it had on Rupert Murdoch, a political enemy of the president, it's naive to pretend that the request had nothing to do with politics. 

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38 responses to “Not Just the IRS: Federal Agencies Are Politicizing the FOIA Process, Too

  1. Environmentalists are at war with Big Oil. Big Oil has Deep Pockets. The EPA is trying to level the playing field, which is the primary job of the federal government.

    1. The fed has the deepest pockets off all, but that doesn’t seem to bother those on the left

      1. No, most of them go through similar mental gyrations to the ones this guy is trying to go through:

        http://www.huffingtonpost.com/…..06081.html

    2. Funny, I don’t see “leveling the playing field” listed anywhere in the Constitution.

      1. I think your sarcasmometer might be running low on bourbon.

        1. Bourbon is for drinking, not for fuelling sarcasmometers.

      2. You have to read between the lines.

      3. It’s an emanation wrapped in a penumbra. If you’re in the right frame of mind, you can see it. (It helps to take a little peyote first.)

  2. I had a friend back in the old days named Barry. Barry was a cool guy, and everyone wanted to hang with Barry. He was good looking, a smooth talker, and always quick with a funny story. But in private, Barry could be a real dick. I ignored his dickish behavior, because he was so cool to hang with and I always figured it was partly my fault as well. Then one day at a party, someone had a bit too much to drink and told of a time when Barry had been a real dick to him. Everybody looked really uncomfortable for a few minutes, but then another person spoke up about Barry doing a really dick thing. And then another person, and then another. Soon it became clear that Barry was just a raging asshole with a pretty veneer on top.

    1. But you elected him Class President anyway, right?

      The End!

    2. I sort of assumed everyone knew someone like this. Mine was a guy freshmen year of college that we all realized everyone hated a couple months later.

  3. Of course it’s politicized. Everything has been politicized. Insane partisanship mixed with massive government (one might argue that the insane partisanship is a result of massive government) automatically leads to politicization. If this comes as a surprise to anyone, you need to get new parts for your head.

    1. Wait, I can get new parts for that thing?

      1. No, nicole, not that thing.

        1. It was worth asking.

          1. You can probably get 3D printer plans for it though.

    2. Agreed.

      I’ve been arguments with people like Tony repeatedly, where he and other progressives seem to think that “democracy” is some kind of magic fairness fairy dust that you sprinkle on the government, and automatically everything it does is going to turn out just.
      Nothing can be further from the truth.

      Government is a war of interest groups, and the more things in life you let it decide, the more you depart from strict rule of law and inviolable rights, the more people are, in fact FORCED, to seek advantage by allying themselves with an interest group and fighting for favors. If you don’t play the game, you get thrown under the bus.

      So everything becomes about team, your entire livelihood is wrapped up in which team wins, because the government is capable of slapping favorable or unfavorable regulations on you that can make or break your business. Or your enemies business.

      And when everything is about team, everything is political.

  4. No

    fucking

    way

    !

  5. This story keeps getting more and more chilling. Of course, to the President’s supporters this is A-OK because those groups are likely to be against big government.

  6. Duh – Kochporashuns can afford FOIA requests – good Environmental groups can’t. So this is totally fair and proper. Necessary and proper, even. Commerce clause.

    Because fuck you, that’s why.

    1. Also, global warming denial doesn’t help the public become better informed, so the EPA shouldn’t help climate change deniers get information anyway.

      The rules say right there “if the public would be better informed”. The things those right wingers say aren’t information, they’re misinformation, therefore they don’t qualify.

  7. No, no, it’s all Republican spin. All of it. No matter what. Obama could crucify people up and down the Mall, and we’d hear the same shit.

    1. You’re calling Obama Randall Flagg, just because he is called the Dark Man? RACIST!!

      1. I was thinking more Sulla, less Dark Lord.

        1. So, proscription lists, and head pinned to the rostra are a comin’?

          1. …proscription lists…

            Aren’t we already there?

  8. Unfortunately, one of the takeaways from these scandals will just be that the wrong people were in charge not that this is a natural result of government.

  9. OT, but worth it:
    ‘All money spent on advertising is wasted!’
    ‘Korporashuns are dehumanizing!’
    Well, take about 3 minutes here:
    http://www.youtube.com/watch?v=KEBJmZL8G1E

    1. Needs more screaming, smash cuts, and multi-culti positivity!

      1. “Needs more screaming, smash cuts, and multi-culti positivity!”
        Awright, the ‘up with people’ schtick is a bit much, but that’s some fun machinery.

    2. That is way to many girls to be a real engineering class.

  10. If you give bureaucratic lifers discretion over things like extra scrutiny or application fees, of course they’re going to stack the deck. The solution is to apply the same standards to all comers with no exceptions.

    1. It might work for a short while until the agency just happens to self publish what would have released on a FOIA request or a “lone” helpful staffer slips the documents to his fellows.

  11. Didn’t the EPA administrator use a fake email account? and didn’t the EPA argue that their enforcement actions were not reviewable by the judiciary? the EPA is a fucking joke.

  12. Obama could crucify people up and down the Mall, and we’d hear the same shit.

    Obama could crucify all the Democratic members of the House of Representatives, and His followers would smile and nod knowingly amongst themselves at his generosity and mercy.

  13. Killing eagles is a federal crime – sort of. http://hosted.ap.org/dynamic/s…..4-07-57-59

  14. I would be very very curious to see the EPA information broken down by issue.

    For instance, what percentage of global warming skeptics vs. believers claims were turned down?

    What percentage of anti-GMO groups claims were approved, compared to pro-GMO groups?

    The difference between the two would tells us if the bias is towards “scientific consensus” or purely left-wing vs. right wing.

  15. Simple solution:

    Get rid of FOIA fees.

    Sure, that might lead to somebody using mail merge to generate mass numbers of FOIA requests, thereby grinding the bureaucracy to a halt – but tough luck, guys. We tried it your way, and since that way relied on your good faith, it failed. Now fuck you, just send the information.

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