Every president who served during the decades-long struggle to enact an open government law — primarily Dwight Eisenhower, John Kennedy and Lyndon Johnson — opposed it. They asserted a law opening up government records to the public would infringe on exclusive presidential power under the Constitution to control access to government information.
History has proved them wrong. The president does not possess such exclusive power.
Now, another president and his agencies are forcing a new struggle, to test whether the 51-year-old Freedom of Information Act (FOIA) can still be effective in lifting a veil of secrecy over the actions of the Executive Branch.
The use of FOIA has dramatically increased in the first year of the Trump administration. Requests for government records, including letters, speeches, notes about meetings, appointment calendars, memoranda and emails rose to a record-setting 823,000 in Fiscal Year 2017, an increase of over 30,000 in one combative year.
Government efforts to withhold records and government censorship (known as “redaction”) rose even faster. According to a recent Associated Press report, 78 percent of all citizen and press requests for records resulted in documents that were censored (often heavily), or no documents produced at all.
The most egregious examples of government censorship and secrecy come from the Environmental Protection Agency. It is charged by President Donald Trump with leading his administration’s effort to repeal or delay many regulations intended to protect the air, water and land from toxic and often deadly contamination.
One means of denial: EPA officials have stopped releasing information about schedules and agency meetings with regulated industries, according to a comprehensive review by Margaret Talbot in the New Yorker. In addition, waiting times for responses to FOIA requests are up over 20 percent in the last year, as reported by George Washington University’s FOIA Project.
The press and public are clearly contesting this new effort at official secrecy. In almost one-third of government-wide cases of internal agency appeals due to denials or partial responses (FOIA requires such administrative appeals before a lawsuit) agencies backed down and found the files.
Not surprisingly, lawsuits by newspapers, individual reporters and non-profit groups such as the American Civil Liberties Union and the Natural Resources Defense Council over FOIA denials have skyrocketed. Total lawsuits to enforce the act rose 26 percent in the first year of the Trump administration, as summarized by the FOIA Project. The largest percentage increase was cases against EPA — a stunning increase of 250 percent (35 cases) in one year.
Why the surge in lawsuits targeting EPA, a relatively small federal agency? Perhaps because EPA Administrator Scott Pruitt has announced that he intends to repeal as many as 30 major environmental protection rules. These include the long-awaited Clean Power Rule limiting air pollution from coal-fired power plants, the coal ash discharge rule, as well as the methane leakage, toxic metals release and ozone contamination rules.
Lawsuits are nothing new to Mr. Pruitt. As attorney General of Oklahoma he sued EPA 14 times, usually with oil, gas and mining industry support and cooperation. Mr. Pruitt lost many of these cases in court. President Trump has now put him in charge of the agency he attacked.
Environmental groups and the press are using FOIA to challenge the questionable actions of an administrator who had apparently made up his mind on key issues before being appointed.
FOIA-released data reveals that among other issues, Mr. Pruitt has failed to provide the names of the members of EPA’s Deregulatory Advisory Committee set up by presidential executive order. FOIA requests show that the identities of industry representatives who have met with EPA officials over deregulation proposals are largely undisclosed. The texts of Mr. Pruitt’s speeches to representatives of the oil, coal and natural gas industries have not been released.
But Mr. Pruitt’s efforts to repeal or delay environmental regulations appear to be slowing under an intense wave of challenges.
For example, a decision by the D.C. Court of Appeals reversed EPA’s attempt to delay the methane gas discharge rule by “reconsidering” it indefinitely. Mr. Pruitt then backed off another effort to delay a pending rule, limiting ozone releases. At least 17 states have now sued to reverse agency’s suspension of the Obama administration Clean Power Plan which would limit cancer- causing air emissions.
Not all of these challenges have been based on the Freedom of Information Act. But the evidence disclosed through requests under FOIA of bias by the agency and undue influence by energy industries, undermines the legitimacy of many EPA deregulatory actions.
FOIA may not be enough by itself to restrain a new veil of secrecy arbitrary government action. But even 51 years after it went into effect, FOIA is still a weapon for public information about what its government is up to.
That was the original purpose of the law. As FOIA’s author and inveterate champion, Congressman John E. Moss said, “Are we better off since the Freedom of Information Act was passed? Of course we are; but it is a never ending battle.”
Michael R. Lemov was chief counsel to Congressman John E. Moss’ House Commerce subcommittees on Commerce and Finance, and Oversight and Investigations. He is the author of “People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights” and “Car Safety Wars: 100 Years of Technology, Politics and Death.”