From “low-level worker” to systemic targeting: EPA joins IRS in discrimination


One could be a fluke. Two is a pattern.  This time, it’s the fan favorite, the Environmental Protection Agency (EPA):

The Environmental Protection Agency often refuses to waive fees for Freedom of Information Act requests from conservative groups, while almost always waiving them for environmental groups.

That’s according to an analysis of a year’s worth of FOIA requests by the Competitive Enterprise Institute, a nonprofit Washington, D.C.-based public policy group that advocates limited government, free enterprise and individual liberty. The waivers are significant since FOIA fees can run into the thousands of dollars – enough money to discourage groups from going forward with their requests for emails and other government documents. Federal agencies usually waive fees on FOIA requests by the media or public-interest groups.

CEI found that the EPA waived fees on 75 out of 82 FOIA requests made by environmental groups such as the Natural Resources Defense Council and Greenpeace. But it denied fee waivers on 14 of CEI’s 15 FOIA requests. Other conservative groups also were often denied fee waivers, according to CEI.

Normally, a government agency’s statement on this kind of thing is short, pithy, and not worth paying attention to. That is not the case here:

I asked EPA about CEI’s allegations, and here’s the agency’s response: “EPA makes waiver determinations based on legal requirements that are consistently applied to all fee waiver requests, not on the identity of the reporter.”

Follow the link to the requirements for waiving a FOIA request. Here’s what you find in the six factors related to fee waivers (in summary):

  1. The request must be clearly related to “operations or activities of the government.” Pretty straightforward so far.
  2. The information must be “likely to contribute” to the public understanding of Point 1. Fair enough.
  3. The information must contribute to “public understanding,” not just the understanding of an individual. News media is, according to the site, “presumed” to be under this category. Again, nothing controversial so far – it makes sense that the government can’t reimburse every single person making a request for individual knowledge.
  4. Here’s where it gets tricky: The request must add “significantly” to the public’s understanding of what goes on in government. Note: “Significantly” is not defined.
  5. The level of commercial interest will be examined. This makes sense – you don’t want the government giving people with more money (as stated above, waivers are expensive) special treatment, especially to simply make profit off of information others are not able to access.
  6. The commercial interest must be outweighed by the level of public understanding that would result in the information’s release.

It seems that 5 of the 6 factors are relatively straightforward, though they are also somewhat subjective. Point 4, however, seems problematic to me. What is “significant?” Is the size of CEI – much smaller than many other public policy and public interest organizations – problematic? If the organization will oppose an EPA ruling or policy, does the EPA throw the organization under the financial bus because “significant” understanding is not taking place because the organization opposes what the EPA’s bureaucrats believe to be true?

This is not yet a major scandal,. However, it is definitely worth keeping an eye on, because if CEI is correct, a pattern is emerging that throws every federal agency into the spotlight.

And President Obama is the link between them.