EPA Slow to Fulfill FOIA Demands

Sep 26, 2005  •  Post A Comment

After Hurricane Katrina devastated Gulf Coast states, Mark Schleifstein, environment reporter for the New Orleans Times-Picayune, fired off a Freedom of Information Act request asking the Environmental Protection Agency for information about spills of hazardous materials in the stricken areas.

Though information on what sorts of toxic effluents were present in New Orleans and other afflicted areas was supposed to be public-and was obviously extremely important to the public’s safety and health in the region-the EPA had not responded more than a week later.

“There is no reason to keep it secret,” Mr. Schleifstein said in a telephone interview. “This is material [the EPA is] required to release to the public because the material might harm [public] health.”

Eryn Witcher, an EPA spokeswoman, said her agency is committed to openness. “In the wake of the country’s largest natural disaster, we’re working to get out as much information as quickly as possible to the public,” she said.

But the experience of Mr. Schleifstein and other reporters chasing one of the biggest environmental disaster stories ever in the United States underscores that the FOIA has rarely been an effective tool for reporters covering breaking news stories.

With the Bush administration attempting to put a damper on the free flow of government information in the wake of the 9/11 terrorist attacks, the FOIA, once merely ailing from narcolepsy, now appears to be in cardiac arrest.

“This administration has been much more difficult,” said Ken Ward, staff writer for The Charleston (W.Va.) Gazette.

It’s hardly a secret that the FOIA has traditionally been more useful for researching long-term investigative exposes than it has been as a tool for covering breaking news.

Though the law, adopted in 1966, is supposed to ensure that information kept by the federal government is freely available to the public, it exempts from disclosure many categories of information, and reporters say these days their requests tend to be decided in favor of secrecy.

In addition, while the act says that federal agencies are supposed to deny or grant a formal FOIA request within 20 days, reporters have long complained that they had to wait for months or even years for a response-hardly the winning formula for beating your competition with a scoop on the evening news or in tomorrow’s newspaper.

But during the Clinton administration, former Attorney General Janet Reno attempted to breathe some life into the act by directing the federal agencies to err on the side of disclosure when assessing whether to grant FOIA requests.

Post-9/11, however, former Bush administration Attorney General John Ashcroft told agency heads to forget Ms. Reno’s advice and to err on the side of secrecy.

“[Ms. Reno’s] guidance: When in doubt, disclose,” said Tara Magner, counsel to Sen. Patrick Leahy, D-Vt., who has been leading an often lonely fight for more disclosure under the FOIA on Capitol Hill. “Ashcroft flipped that: When in doubt, do not disclose. And [Ashcroft promised that] the Department of Justice will support those decisions.”

Adding to the woes of reporters, Congress, in authorizing the Department of Homeland Security in 2002, carved out a new FOIA exemption for “critical infrastructure information”-one that critics say appears wide enough to protect much information of importance to the public and environmental reporters, including assessments of the dangers associated with dams, bridges, sewers, chemical and energy-related facilities.

The provision at issue, intended to encourage private companies to notify the Department of Homeland Security of their potential vulnerabilities, promises to shield the information from disclosure. Critics are concerned that corporations may be using the provision to hide information that really isn’t of interest to terrorists but could be critical to the public’s safety and health, including safety violations at nuclear power plants.

“A big-business wish list gussied up in security garb,” said Sen. Leahy in the debate before the Senate vote on the bill. “The FOIA exemption in this bill represents the most severe weakening of the Freedom of Information Act in its 36-year history.”

Creating a Catch-22 for reporters, it’s also impossible to gauge how much information that could be of interest to the public safety has been locked away in the Department of Homeland Security’s critical infrastructure information vault, because there are no reporting requirements.

“In many cases, the industry has had a vested interest in keeping the public from knowing what they’re up to,” said Joseph Davis, editor of the Society of Environmental Journalists’ newsletter, WatchDog TipSheet.

Critics also are concerned that what they see as the Bush administration’s penchant for secrecy has trickled down into even the most obscure federal agencies, encouraging FOIA officers to push the secrecy envelope to sometimes ludicrous extremes.

Robert McClure, a staff writer for the Seattle Post-Intelligencer, said his routine request for a staff directory from the Department of Interior’s U.S. Fish and Wildlife Service last year was met by a demand that he file an FOIA request.

When the agency responded a couple of weeks later in an

e-mail, it directed him to the its official Web site, where the information was listed, he said.

“It was just obstructionist,” Mr. McClure said.

The Charleston Gazette’s Mr. Ward also said that requests for such routine information as mine inspection reports from the Mine Safety and Health Administration, available by phone call four or five years ago, are now met by demands for FOIA requests.

“What that allows them to do is stonewall and delay,” Mr. Ward said.

Additional evidence of the Bush administration’s slide toward secrecy: A report by the watchdog OpenTheGovernment.org says 15.6 million documents were classified by the federal government in 2004, while 28.4 million were declassified. By way of comparison, according to the group, 6.5 million documents were classified in 1997, a year in which 204 million were declassified.

In an effort to crack open the government’s information vault, Sen. Leahy is promoting legislation to shore up the FOIA.

Two of his pending bills, co-sponsored with Sen. John Cornyn, R-Texas, are aimed chiefly at expediting the processing of FOIA requests.

Another, which no Republicans have co-sponsored, proposes to limit the ability of companies to shield critical infrastructure information filed with the Department of Homeland Security to material that could be of genuine interest to terrorists.

To say the least, the bills’ progress has been slow.

“What history shows us is when we’re dealing with amendments to the Freedom of Information Act, it tends to take some time,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “These are not sexy issues.”

The Charleston Gazette’s Mr. Ward, meanwhile, said reporters deserve much of the blame for the apathy about FOIA at federal agencies, because reporters don’t use the act enough and don’t stand up for the rights the act provides.

“Given that, it’s not surprising it’s getting difficult to get agencies to comply,” Mr. Ward said.