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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.