EPA Promulgates New FOIA Rule Without Public Comment

On June 26, 2019, EPA promulgated a final rule amending Freedom of Information Act (FOIA) regulations at 84 FR 30028 (available at https://www.govinfo.gov/content/pkg/FR-2019-06-26/pdf/2019-13290.pdf) without public comment citing to procedural and good cause exceptions. Under the new EPA FOIA rule, EPA regional offices will no longer handle initial FOIA requests. Rather, all FOIA requests must first be sent to the agency’s National FOIA Office, which will then delegate the requests to the proper office. As discussed in a series of articles in the Hill, “[t]he new EPA rule … allows the administrator and other political appointees to review all materials requested under the [FOIA] process.   https://thehill.com/policy/energy-environment/452066-environmental-groups-fight-epas-new-public-records-restrictions; see also https://thehill.com/policy/energy-environment/452425-pressure-mounts-on-epa-to-withdraw-new-foia-rule; and https://thehill.com/opinion/energy-environment/452417-epas-new-public-records-rule-lets-trump-administration-pollute-in.

Joe’s Takeaway: FOIA is an important information gathering tool to hold the agency accountable for both environmentalists and industry. EPA HQ’s apparent “fortress” mentality reflected in the new FOIA rule sets dangerous precedent that may make it more difficult and time-consuming for the public to obtain records from EPA now and other future administrations.

Environmental groups have already petitioned EPA to withdraw the new FOIA rule.  Expect rulemaking litigation and uncertainty.  In the meantime, the new FOIA rule is effective on July 26, 2019, so make sure that you send your FOIA requests to EPA HQ using one of the methods set forth at 2 CFR 2.101.