The result is that some high-level officials at both EPA and Interior are keeping closer tabs on these FOIA requests, while at least at the EPA — according to those who have filed such requests — bureaus drag their feet in responding.
At Interior, Zinke’s office has taken direct control of the various FOIA requests that have piled up at the various agencies responsible for his review of national monuments created during the past three presidential administrations.
In April, President Trump instructed Zinke to review all national monuments established since 1996 that span 100,000 acres or more. Preparing for a public relations and potential legal battle, environmentalists and other groups outside government began filing federal records requests to learn exactly how Zinke was conducting the review and what recommendations he would issue.
Since the 1906 Antiquities Act empowers presidents to establish national monuments on federal lands and waters deemed worth of protection, the review of 27 national monuments spanned Interior’s Bureau of Land Management, National Park Service and U.S. Fish and Wildlife Service, as well as the Agriculture Department’s Forest Service and the Commerce Department’s National Oceanic and Atmospheric Administration.
In early November, as Zinke was finalizing his official monuments recommendations to the White House, Clarice Julka, a FOIA officer in Zinke’s office, emailed other FOIA officers in 11 different Interior offices, including the Park Service and BLM, to inform them she and FOIA officers in the secretary’s office would handle requests pertaining to the monument review going forward.
Julka told the staffers to collect records that responded to FOIA requests about the monuments, and forward them to the secretary’s office rather than send them directly to the news outlets, corporations, nonprofits and other groups making the requests.
“This would also include any FOIA requesting records pertaining to your bureaus’ participation in the review of any monument,” Julka wrote in the Nov. 6 email obtained by The Washington Post.
The next month, Zinke gave Trump his recommendations: He told the president to shrink at least four monuments and modify the way an additional half-dozen are managed.
Trump’s move last week to cut Utah’s Bears Ears and Grand Staircase-Escalante national monuments by 85 percent and 46 percent, respectively, has sparked a legal and political backlash. Environmental groups and tribal officials have challenged both of the new presidential proclamations in court, and the outdoor retailer Patagonia has changed its website display to read, “The President Stole Your Lands.”
Zinke has pushed back against the criticism, telling reporters in a conference call last week that the suggestion that he was selling public lands is “nefarious, false and a lie.”
Interior spokeswoman Heather Swift declined to comment on how Interior is handling national monument requests. “We don’t have anything to add on the internal process,” she said in an email.
“The desire to consolidate duplicative FOIAs isn’t in itself a sign of something untoward,” said David Pozen, a professor at Columbia Law School and expert on information law. “But the consolidation of the FOIA requests in a political office strikes me as more notable and concerning.”
Noting that the email says the FOIA office within Zinke’s office would be coordinating the response, Pozen added that “there may still be concerning aspects to the situation, but it at least suggests the FOIA bureaucracy isn’t being cut out.”
Part of the issue may be the endless stream of FOIA requests hitting environmental and other departments in the Trump era.
Interior has seen an uptick in FOIA requests since Trump took office and began rolling back decisions made under President Barack Obama. Between October 2016 and September 2017 Interior received a total of 8,014 FOIA requests, Swift said, compared to 6,438 the previous fiscal year. Public records requests made to the secretary’s office more than doubled during that time, she added, from 509 to 1,226.
But Interior’s public records request workload pales in comparison with that of the EPA. That agency received 1,377 FOIA requests between Oct. 1 and Nov. 7, 2017, alone. The EPA received 11,493 in the last fiscal year, between Oct. 1, 2016 and Sept. 30, 2017 — 995 more than the previous year.
Several environmental groups and media outlets have criticized the EPA for failing to more quickly provide documents responding to these requests. Pruitt announced last month his staff has prioritized clearing out the backlog of records requests filed during the previous administration. There were 652 such open requests as of October, and officials estimate they will complete 70 percent of them by the end of the year.
As of October, the EPA had 652 open FOIA requests that were submitted in prior years. The agency said it is on track to answer 70 percent of those requests by Dec. 31.
Trump officials have kept close tabs on these FOIA requests. In a recent hearing before the U.S. District Court for the Southern District of New York, lawyers representing four environmental groups argued that the intense level of scrutiny applied by the administrator’s office had delayed the release of critical documents.
Thomas J. Cmar, an attorney for Earthjustice, told Judge Valerie E. Caproni that hard copies of redacted documents they were waiting to receive about the delay of a rule curbing the amount of polluted water steam electric power plants can emit “had been submitted for something that was described as a senior management review before they could be finally released,” something he said was “not a normal part of FOIA procedures as we understand them.”
Asked about the procedure, Assistant U.S. Attorney Anthony J. Sun said “the new administration put in a procedure for this case — not all cases, but this particular case” where the office that manages Pruitt’s correspondence and records reviews any releases under FOIA.
In an email, EPA acting general counsel Kevin Minoli said that while he could not discuss that specific case, the role that office performs regarding FOIA requests “is consistent with what it was in the last administration.”
Caproni ordered the EPA to provide a complete response to the FOIA that Earthjustice filed in April by Dec. 31. Earthjustice spokesman Daveon Coleman said that late last month the EPA provided the three documents that had been subject to senior management review.
State officials are also taking the agency to court over access to public records: California Attorney General Xavier Becerra filed suit in August in an effort to compel the EPA to hand over documents related to how the agency’s administrator, Scott Pruitt, is handling any potential conflicts of interest.
Interior is being sued over FOIA requests from two whistleblowers, Joel Clement and Matthew Allen, both of whom were reassigned since Trump took office.
Allen, who was working as BLM’s communications director for nearly a year before was transferred to the Bureau of Safety and Environmental Enforcement (BSEE) in September, filed suit Tuesday in U.S. District Court for the District of Columbia over the department’s failure to release public records related to his case.
Allen’s attorney, Katherine Atkinson — who previously sued Interior over Clement’s case — said in a statement that they went to court because “federal agencies are required to release documents and records in a timely manner as part of their responsibility to transparency to the American people.”
In an interview, Allen said he had disagreed with how political appointees at BLM, including then-acting director Michael Nedd, handled public records requests.
Nedd, a longtime BLM employee appointed by Zinke to the acting position, asked to review and weigh in on FOIA requests that identified him specifically, Allen said, adding that he reported Nedd’s request to Interior’s deputy secretary. Dan DuBray, BLM’s acting communications director, said the bureau’s director is apprised of FOIA requests but does not determine which documents are released.
“Any time you have leaders within a government agency who are taking steps to withhold information from the public press and the Congress,” Allen said, “we should all be concerned.”