New Congress Called on to Fix Public Records Delays, Political Manipulation

WASHINGTON— More than a dozen conservation and transparency groups called on the new Congress today to fix systemic issues and close loopholes that allow federal agencies to delay releases of public records under the Freedom of Information Act.

“It’s time for Congress to step in and fix what our executive branch agencies have broken,” said Meg Townsend, a staff attorney at the Center for Biological Diversity. “Political appointees have been strategically delaying releases of public records that let the American people know what federal agencies are doing. These are records that allow us to hold our government accountable for actions that affect human health and the environment. By the time agencies finally release anything meaningful, often months and even years after they are requested, the information is stale.”

A letter sent by the groups to Congress today details examples of strategic, politically motivated delays in responding to FOIA requests by the Department of the Interior, Environmental Protection Agency and other agencies responsible for actions that affect human health and the environment. These include:

The Interior Department withholding records of Secretary David Bernhardt in response to a FOIA request about the agency’s decision to gut national monuments;
The EPA sitting on communication records of former administrator Scott Pruitt until after he left office amid numerous political scandals;
The Interior Department stringing out a release of records regarding the agency’s actions in response to an executive order by President Trump that specifically directed the heads of agencies to exploit the National Environmental Policy Act, Endangered Species Act and Clean Water act to “stimulate” the economy in response to COVID-19.

“Agencies’ egregious delays in responding to FOIA requests have undermined work to hold the Trump administration accountable for its attacks on clean air and water and to uncover corrupt activities from the likes of Scott Pruitt, Ryan Zinke, Andrew Wheeler and their aides,” said Elena Saxonhouse, a senior attorney with the Sierra Club. “We are asking Congress to make these improper delays a top priority for reforming the Freedom of Information Act so that the public can benefit from greater transparency and accountability.”

The groups are asking Congress to waive all relevant privileges for records that have not been produced six months after an agency conducts a search in response to a FOIA request. They also suggested that Congress require agencies to justify any withholdings or redactions at the request stage or waive their right to withhold the information.

“Justice delayed is justice denied; this is especially true when it comes to FOIA,” said Adam Carlesco, attorney with Food & Water Watch. “Effective governmental oversight must happen in real time and public accountability efforts are hamstrung when executive agencies delay public records for political purposes.”

A third recommendation aims to address the lag time that can occur when an agency performs a search for records but then sits on the records for many months. The groups recommend that Congress require agencies to either promptly review records and release them or perform a new search. Under this model, if an agency delayed releasing records beyond one month after its search, it would have to conduct a new search to locate any additional responsive records that may have been created or received during the delay.

“The Trump administration hamstrung Freedom of Information Act requests, creating political delays that kept the American public in the dark about what their government was doing. But a transition to a Biden administration, by itself, will not resolve major loopholes in the law that have allowed the purpose of the Freedom of Information Act to be undermined over the last four years,” said Marie Logan, an attorney with Earthjustice. “Congress must act now to close these loopholes and fix what has been broken.”

“The Freedom of Information Act is a pillar of our democracy, among our most important means for holding government officials accountable for what they say and do,” said Chris Sellers, member of the Environmental Data & Governance Initiative and professor of environmental history at Stony Brook University. “But for the last four years, the often interminable delays in responses to FOIA requests have severely eroded that accountability—this in an administration cozier with industry than any other in modern times. Congressional action proposed here is much needed, to ensure that FOIA lives up to its original intent and its promise.”

Today’s letter was sent to the leadership of the House Natural Resources, Oversight, and Energy and Commerce committees as well of the Senate Judiciary and Senate Energy and Natural Resources committees.