Watchdog: Follow the Money

Think tanks tell court EPA using FOIA fees to hide public documents

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Environmental Protection Agency officials are using reproduction fees to delay or avoid releasing documents under the Freedom of Information Act, two conservative think tanks said in a complaint filed with the U.S. District Court for the District of Columbia.

The Free Market Environmental Law Clinic and the Energy and Environment Legal Institute requested communications related to a proposed Northwest coal export terminal in July.

The EPA denied fee waivers for the request, even though both groups are supposed to be granted waivers as nonprofits disseminating information for public benefit.

"The instant fee waiver denial represents EPA's resumption of an abusive practice of imposing a barrier to access for certain groups, a practice that has increased in recent years," the complaint stated.

"Specifically, EPA denies fee waiver requests for groups that generally oppose EPA’s regulatory agenda, while routinely granting them for ideologically aligned groups with which it works closely to advance that agenda."

The EPA denied the waiver regarding documents on the Northwest terminal in Washington state, despite recently releasing records on an identical request for a terminal in Texas, according to the complaint.

The terminals have been the subject of debate over the role of coal in the Obama administration's alternative energy policies.

ELC’s waiver of fees was denied for "any requested records," and both groups’ waiver requests for internal or intragovernmental correspondence were also denied.

The waiver was originally denied on the grounds that ELC didn't adequately show its intent to broadly disseminate the information.

When they appealed the denial, the EPA changed its wording, saying ELC is "unlikely to disseminate responsive records in a way that reaches and informs a reasonably broad audience of persons interested in the subject matter," according to the complaint, which was filed by Christopher Horner, the lawyer who revealed former EPA administrator Lisa Jackson's "Richard Windsor" email alias and other questionable email practices at the EPA.

"EPA’s selective demand for fees arbitrarily, and incorrectly, applies the fee waiver provision and as a result impermissibly frustrates the purposes of the Freedom of Information Act," the complaint said.

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