Top aides to Scott Pruitt at the EPA are screening public records requests related to the embattled administrator, slowing the flow of information released under the Freedom of Information Act — at times beyond what the law allows.
Internal emails obtained by POLITICO show that Pruitt's political appointees reviewed documents collected for most or all FOIA requests regarding his activities, even as he’s drawn scrutiny for his use of first-class flights and undisclosed dealings with lobbyists.
While past administrations have given similar heads-ups to political aides for certain records requests, FOIA experts say this high-level vetting at EPA appears to have increased compared with the Obama era.
"This does look like the most burdensome review process that I've seen documented," said Nate Jones, director of the FOIA Project at George Washington University's National Security Archive.
The emails also show Pruitt's aides chastising career employees who released documents about the administrator without letting them screen the records first. Meanwhile, several environmental groups say the agency has told them that political staffers' document reviews have delayed releases past legal deadlines.
The new processes described in the emails involve “awareness reviews” or “senior management reviews” conducted by top political staffers before the agency releases essentially any documents involving the administrator. The emails also show Pruitt's political appointees chastising career employees who released documents in accordance with FOIA without letting them screen the records first.
EPA sometimes conducted those types of reviews under the Obama administration when career staff thought documents would generate a lot of interest, agency officials from that era told POLITICO. But under Pruitt, the vetting by EPA chief of staff Ryan Jackson and other key appointees of any documents linked to the administrator appears to be on the rise, according to FOIA experts who reviewed the emails.
The increased scrutiny comes as the agency faces a wave of accusations of excessive secrecy. EPA has declined to provide information about Pruitt’s public appearances in advance — a practice at odds with those of many other Cabinet members and the White House. And the agency releases his detailed calendars only when compelled by lawsuits.
That secrecy has prompted a boom in both Freedom of Information Act requests filed with the agency and lawsuits challenging its resistance to releasing information to the public. As POLITICO reported in February, production of documents under FOIA requests from Pruitt’s office is drastically lower than the rest of EPA.
The newly released emails, which EPA gave to the Natural Resources Defense Council following legal action, show Jackson created a pilot program to “centralize” requests that go through the various sub-offices that make up EPA’s Office of the Administrator. The emails show that the political aides weren’t just concerned about streamlining the FOIA process — they wanted to know about any requests anywhere at EPA that involved Pruitt.
In one exchange from last August, Jackson and Liz Bowman, the head of EPA’s Office of Public Affairs, expressed concern about documents related to comments Pruitt made on CNBC disputing that carbon dioxide from human activities was the primary cause of climate change. Those documents had been released to E&E News without first going through their review.
“Why did Kevin Bogardus from E&E all of a sudden get a response to a FOIA today, without any awareness from our FOIA office?" Bowman wrote Aug. 2. She later added that the response "wasn't due until 8/30."
Officials quickly determined that the request had been filled by a career employee before Bowman had a chance to flag it "for attention." Although the request involved Pruitt, the records sought by E&E were kept at EPA’s Office of Research and Development, and the request was routed there before being released by a FOIA expert from that office.
Anything related to Pruitt “will draw inquiries from press,” Jackson replied, and he requested that he and the public affairs office be notified ahead of any Pruitt-related release from any EPA office.
The message was received loud and clear by EPA’s career staff.
“I have instructed my staff that no [Office of the Administrator] requests are to be issued without the opportunity for an awareness review by you, [the Office of Public Affairs] and the senior leadership of any other affected offices,” Becky Dolph, the head of a special team of FOIA experts in EPA's Office of General Counsel, wrote to Jackson later that day.
Emails sent later that month showed Jackson pressing staff on why documents related to a coal plant water pollution rule were already available online just one day after an awareness review began.
The documents were “inadvertently” posted, replied Kevin Minoli, then EPA's acting general counsel, who added that the process would be changed so that "nothing is uploaded at all until we have the final set of documents and their production has been authorized."
None of the emails given to the NRDC reveals exactly what actions the political staffers conducting these reviews took.
NRDC attorney Aaron Colangelo said he asked EPA for details about the reviews after an EPA attorney told him that “awareness reviews” were delaying the release of documents in other FOIA requests filed by the environmental group. Those requests were related to Pruitt’s participation in ongoing legal cases that he'd previously been involved in during his time as Oklahoma’s attorney general.
Colangelo and other FOIA experts said federal agencies have discretion to set up their own internal FOIA processes, and the political reviews are not illegal — unless the reviews caused EPA to miss deadlines for producing documents set out in the Freedom of Information Act.
“There’s nothing necessarily wrong with political folks getting a heads-up before potentially sensitive documents are released,” Colangelo said in an interview. "But we do have a legitimate objection if that political review delays compliance with deadlines in the law."
And that has happened for at least two of the NRDC’s Pruitt-related FOIA requests, he said.
Another request from a coalition of environmental groups for documents about Pruitt’s delay of a rule limiting water pollution from coal plants was held up over a “senior management review.”
A judge mediating the lawsuit over that delay, Valerie Caproni of the U.S. District Court for Southern New York, said during November proceedings that while EPA “can do whatever internal policies in particular they want on FOIA,” the agency cannot use political reviews to justify missing legal deadlines.
EPA still has to “comply with the law, and that means they have to produce documents in a timely way,” she said. EPA eventually handed over the documents in that case.
It's not clear exactly how many FOIA requests have been delayed by political reviews, but experts say it is clearly having an impact.
Several Obama-era EPA political officials said they too occasionally received "heads-up" awareness reviews on high-profile requests, but not necessarily to the degree that Pruitt's aides are doing them.
“It doesn’t seem abnormal to me that some political would get a chance to have review for awareness of productions that are going out that involve the administrator,” said one former official. But the close attention from top-ranking officials like Jackson and former policy chief Samantha Dravis seemed “a little bit odd,” the former official added.
Instead, awareness reviews generally went to the head of the agency program office in question and to congressional affairs staffers so they could coordinate with any requests from lawmakers, the former official said.
One Obama-era awareness review that was included in the new documents showed that a large batch of documents related to the Flint, Mich., lead crisis was flagged to political officials in the Office of Water and the congressional affairs office, as well as the general counsel, the regional administrator and a public affairs official.
Bowman, the EPA spokeswoman, did not comment on questions from POLITICO about the political oversight of FOIA requests, but she noted that the Trump administration was not the first to use them.
“Each EPA program and Region does their own FOIAs, so an awareness review allows the press office, Congressional affairs office and senior officials to be informed of documents being released in response to FOIA requests, to facilitate inter-office coordination, and to prepare responses to inquiries,” she said.
Thomas Cmar, an Earthjustice attorney involved in multiple FOIA lawsuits with EPA, said the emails raise as many questions as they answer.
“Political staff appear to be keeping a very close eye on what information is being requested and released to the public,” he said. “It raises concerns and it raises questions that need to be answered about whether EPA is living up to its obligations to make basic information about its activities available to the public that it’s supposed to be serving.“