Under the first year of Environmental Protection Agency (EPA) Administrator Scott Pruitt’s tenure, the media and civil society organizations have noted significant delays in EPA’s processing of Freedom of Information Act (FOIA) requests related or routed to the EPA’s Office of the Administrator. Private organizations and individuals are filing an unprecedented number of FOIA lawsuits against the EPA to compel the agency to speed its processing and/or to release more records.
To evaluate the claims that there are long FOIA-request response times at the EPA, the Project On Government Oversight is working with Politico to conduct an analysis of the Agency’s FOIA logs and records, building on past reporting. Today, Politico published a report, in part drawing on the quantitative analysis below, about the way that the EPA Administrator’s Office in particular is handling FOIA requests.
POGO's analysis is ongoing, but the statistical patterns we've already begun to see are so concerning that we wanted to make policymakers, journalists, and the public aware of what we've found so they can ask questions and demand answers about how the EPA will improve and properly implement the Freedom of Information Act. Our preliminary findings and observations show that:
- The rate at which the EPA Administrator’s Office has closed FOIA requests is significantly lower than the rest of the Agency and even than the rest of the Headquarters office in Washington, DC;
- In the last year, the Office of the Administrator has faced a significant increase in the number of FOIA requests filed for records potentially in its possession over the number filed during the last several years of the Obama Administration;
- Some of the requests routed to the Office of the Administrator in the last year are for the same records or substantially overlapping sets of records. For this reason, the increased burden associated with responding to the larger number of requests is less than it may initially appear. Some of the increased FOIA burden is self-inflicted because Pruitt made the initial decision not to proactively disclose his official calendar (beginning a few months ago, he began releasing a version of his calendar). It is also unclear if more FOIA requests are being routed to the Office of the Administrator for “senior management review” and if this explains part of the increase.
This preliminary analysis uses publicly available FOIA logs and records that have been produced or curated by the EPA. In the future, we will publish a more detailed assessment of this data and another FOIA dataset. Anastasia Aizman generously assisted POGO in this project and compiled the dataset we will use for the future assessment using data from FOIAonline.
The tables in the Results section below have been created using the FOIA logs that the EPA provided in response to a FOIA request. The different types of “Status” designations that the EPA logs provide for each record are: “Evaluation,” “Assignment,” “Processing,” and “Closed.” (Note: Records labeled “Closed” have not necessarily produced any responsive documents, which is the case for many of the 2017 requests to the Administrator’s Office.)
Using the FOIA logs’ “Organization Chain” designations, which identify the office within EPA to which the request was routed, POGO broke the requests down into three categories:
- “All EPA FOIA Requests,” corresponding to all requests in the log;
- “EPA Headquarters FOIA Requests,” corresponding to requests with the designation “EPA” or beginning with the designation “EPA/HQ”; and
- “EPA Administrator’s Office FOIA Requests,” corresponding to requests with any designation beginning with “EPA/HQ/AO.”
POGO reviewed the data from the first year of the Trump administration that was available up to the point the review began (from January 20, 2017, to December 29, 2017). POGO also reviewed the data from a similar time frame during the last year of the Obama Administration for comparison purposes (January 22, 2016 - December 30, 2016, the same weeks of 2016 as the 2017 time period). In the event that 2016 was an outlier year, POGO evaluated the data from a longer period (October 1, 2012 - December 31, 2016, the date that the FOIA logs begin until the end of 2016). POGO used the "Creation Date" listed in EPA's FOIA logs to determine the date each request was made.
Table 1 shows request breakdowns for the Organization Chain categories during the Trump Administration in 2017 (from January 20, 2017, to December 29, 2017). The rate of closure at the end of that time period for each category is in bold.
While 78.76 percent of requests made to all of EPA during that time period were closed and 57.21 percent of requests routed to Headquarters were closed, only small number, 16.60 percent, of requests routed to the Administrator’s Office were closed.
Of the remaining 83.40 percent of requests routed to the Administrator’s Office that had not been closed by December 29, 2017, the vast majority, 928 out of 1181, are still in the “Assignment” phase, while only a small portion, 57, are in the “Processing” phase. POGO will seek to learn more about the significance of this disparity—if these designations are being used as they are commonly used, this difference indicates that the Administrator’s Office has not started processing a large number of these requests.
Table 1: Trump-Era EPA FOIA Requests
|All EPA Requests||9,003||497||29||1,902||11,431||78.76%|
|EPA Headquarters Requests||2.242||237||0||1,440||3,919||57.21%|
|EPA Administrator's Office Requests||196||57||0||928||1,181||16.60%|
Table 2 shows the average number of requests made to EPA during three time periods:
- January 20, 2017 - December 29, 2017 (during the Trump Administration in 2017);
- January 22, 2016 - December 30, 2016 (the same weeks of 2016 as the 2017 time period); and
- October 1, 2012 - December 31, 2016 (the date that the FOIA logs begin until the end of 2016, providing an Obama Administration baseline; October 1, 2012, is the date from which the EPA has released comprehensive FOIA logs).
Table 2: Average Number of Requests over Specified Time Periods
|All EPA Requests||Requests to EPA Headquarters||Requests to EPA Administrator's Office|
|January 20, 2017 - December 29, 2017 (343 Days)||11.431||3,919||1,181|
|January 22, 2016 - December 30, 2016 (343 Days)||9,767||2,056||236|
|October 1, 2012 - December 31, 2016 (1552 Days)*||9,702.13||1,850.92||164.65|
*In an effort to conduct an apples-to-apples comparison, the number of requests over this 1552-day period was multiplied by 343/1552 for comparison to the 343-day time periods
There has been an increase in requests over these time periods, shown in Table 3. While FOIA requests to all of EPA increased by only 17.04 percent, requests routed to Headquarters increased by 90.61 percent and requests routed to the Administrator’s Office increased significantly, by 400.42 percent.
There are FOIA requesters who have said that EPA FOIA Officers have stated their requests have been routed to the Office of the Administrator for “senior management review.” It is unclear how much this practice deviates from past administrations and how much, if at all, this practice may contribute to the increase in number of requests being handled by the Office of the Administrator as documented by the EPA’s FOIA logs.
Table 3: Percent Increase in Number of Requests over Specified Time Period
|All EPA Requests||Requests to EPA Headquarters||Requests to EPA Administrator's Office|
|% increase from 2016 to 2017||17.04%||90.61%||400.42%|
|% increase from 2012-2016 average to 2017||17.82%||111.73%||617.28%|
|% increase from 2012-2016 average to 2016||0.67%||11.08%||43.34%|
Further, the large increase in the number of requests to the Administrator’s Office may not result in quite as onerous an increase in workload as it initially seems, since many requests seek the same or overlapping documents. While there were likely overlapping requests during the Obama era, a preliminary analysis suggests that this has been especially common in the last year when allegations of misconduct involving senior EPA officials have been the topic of news reports, spurring many individuals and organizations to file similar FOIA requests about the same subjects.
For example, the Administrator’s Office received six requests for the same records and four more for largely overlapping records regarding EPA officials’ communications with billionaire Carl Icahn. Icahn has sought policy changes at EPA that could benefit him financially.
EPA also received five requests for the same records and six more for largely overlapping records regarding EPA’s no-bid contract with the public affairs firm Definers Corp. and many of Definers’ principals. Critics have said there is no reason this contract had to be awarded without competition and have speculated that Pruitt’s political ties to the firm were why it was awarded on a no-bid basis.
Similarly, Administrator Pruitt’s decision during his first year to reverse his predecessor’s practice of proactively releasing official calendars led to an increase of similar FOIA requests for those records (last fall, Pruitt began releasing the calendars).
There is processing overhead for any request, even if it is seeking records identical to another request. But the administrative burden of responding to many requests seeking the same or overlapping records is less than the burden for the same number of requests for completely different records.
While POGO will continue to work to understand the exact reason for the increase in the number of requests to the Administrator’s Office and how the agency is handling that increase, the drastic difference between the Administrator’s Office’s FOIA-request response rate and the rate for the rest of the Agency is undeniable. The slow processing of FOIA requests by the Administrator’s Office hampers the public’s right to gain access to public records in a timely manner and to learn about the work of our government.