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Policy: Environment & Energy

Examiner Editorial: Lengthy Senate report details EPA FOIA abuses

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Editorial,Senate,EPA,Waste and Fraud,Energy and Environment

Environmental Protection Agency officials have from the beginning of President Obama's tenure in the Oval Office "pursued a path of obfuscation, operating in the shadows, and out of the sunlight," according to a Senate report.

The report by Republican members of the Senate Environment and Public Works Committee provides a detailed description of violations of the Freedom of Information Act and other federal laws and regulations meant to encourage transparency and accountability in the government.

"The agency established an alias identity to hide the actions of the former administrator; has purposefully been unresponsive to FOIA request, oftentimes redacting information the public has a right to know; and mismanaged its electronic records system such that federal records have been jeopardized," the report said.

"Moreover, EPA’s leadership abandoned the historic model of a specialized public servant who seeks to fairly administer the law and has instead embraced a number of controversial tactics to advance a secretive agenda," the report said.

In addition to multiple abuses of the FOIA, the Senate report claims EPA officials have sought to cover up such activities when challenged by congressional oversight officials.

"As Congress has raised questions about EPA’s lack of transparency, the agency has steadfastly ignored its constitutional obligation to subject itself to congressional oversight, apparently in an effort to prevent the public from knowing what is going on behind closed doors," the report said.

The "alias identity" referred to by the report was the official government email account for "Richard Windsor" that was used by former EPA Administrator Lisa Jackson.

Jackson is scheduled to testify Tuesday before the House Oversight and Government Reform Committee, which is investigating the misuse of government email accounts by Jackson in conducting official business, as well as use of personal email accounts by her and other federal executives.

Federal officials are barred from using fictitious names on official email accounts and are required to inform agency FOIA officials whenever they cannot avoid using a personal email account to conduct official business.

Jackson resigned from EPA in December 2012 after it became known the agency's inspector general had opened an investigation. Jackson has recently "lawyered-up," apparently as part of her preparation for the House hearing on Tuesday, according to the Washington Free Beacon.

The WFB quotes a Jackson lawyer denying that she has done anything illegal and expects to cooperate fully with the House panel.

Jackson's use of the Richard Windsor account became public last year as a result of publication of a book by Christopher C. Horner of the Competitive Enterprise Institute.

Horner's book details misuse of government email and the FOIA by EPA officials beginning in the Clinton administration under then-Administator Carol Browner. Browner also served as Obama's "environmental czar" from January 2009 to March 2011 when her position was abolished.

Among other alleged abuses and violations included in the lengthy Senate report are these:

• "The impediments to EPA transparency extend beyond EPA’s framework for managing information and identifying responsive documents. EPA’s shortcomings also involve the manner in which EPA responds to FOIA requests, including the prolific, and often inappropriate, use of exemptions to withhold information from the public...

• "The manner in which EPA has trained its staff on the implementation of transparency laws is insufficient. Regional employees have not taken the proper training and lack a comprehensive understanding of how to process a FOIA request.

• "In one instance, it appears that EPA deliberately altered the date on a FOIA response to avoid the legal consequences of missing a deadline and then excluded this document from a FOIA production to avoid scrutiny and embarrassment.

• "EPA has also exploited FOIA to protect its own interests while disregarding the public interest by acting with bias in processing fee waiver requests and facilitating requests for environmentalist allies."

UPDATE: Additional excerpts from the report

Concerning the "Richard Windsor" email account:

"The committee has uncovered substantial evidence that calls into question the integrity of EPA’s system for identifying and preserving federal records.

"In the first instance, the committee has learned that the agency assigned a secret alias email address to former EPA administrators.

"Further frustrating the integrity of the system is the fact the agency cannot indicate definitively if these accounts were reviewed in records requests.

"In addition, our investigation has revealed that multiple high ranking officials have used non-EPA email accounts to conduct official agency business.

"These practices have the potential to undermine the agency’s ability to preserve records under the FRA and to appropriately respond to FOIA requests." - Page eight

"The fact that the administrator of the EPA operated under a secret identity is alarming enough. However, a congressional briefing sparked additional concerns.

"EPA officials revealed that the agency’s FOIA office, the individuals responsible for proper administration of FOIA, may have been entirely unaware of the Richard Windsor account.

"Moreover, none of the EPA officials present at the briefing knew who was responsible for archiving and preserving the administrator’s emails." --- Page nine

"In fact, none of the officials could even attest to whether any of Jackson’s alias emails were ever archived for federal record keeping purposes; either Jackson herself or a personal assistant performed these duties.

"Such a scheme would allow the administrator to determine the scope of a FOIA response that touched on her correspondence, creating the potential for a conflict of interest inconsistent with the intent of federal sunshine laws." --- Page 10

Concerning use of personal emails:

"Despite the agency’s policy and multiple statements denying the truth, the committee has discovered that former Region 8 Administrator James Martin regularly used a non-official e-mail account to correspond with individuals and groups outside of EPA, regarding agency business.

"For example, Martin regularly communicated with Vickie Patton, general counsel of the Environmental Defense Fund, about agency priorities on a private account.

"On multiple occasions, Martin also corresponded with Alan Salazar, chief strategy officer for Governor [John] Hickenlooper, and staff of the Colorado Conservation League, as well as others. --- Page 11-12

"The use of private email to conduct agency business is not restricted to EPA’s regional offices, as the committee has discovered that multiple senior officials at EPA headquarters engaged in such email practices.

"Notably, former administrator Lisa Jackson on at least one occasion instructed an environmental lobbyist with Siemens Corporation to communicate via Jackson’s personal email account." --- Page 12

Go here to read the full report.

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