CEI - EPA Gives Info For Free to Big Green Groups 92% of Time; Denies 93% of Fee Waiver Requests from Biggest Conservative Critics

Clear Political Bias Evident in Agency's Awarding of Fee Waivers on FOIA Requests

WASHINGTON, D.C., May 14, 2013 – It’s not just the IRS that treats groups on the right differently from the rest. According to documents obtained by the Competitive Enterprise Institute, the Environmental Protection Agency is in on it too.

Public records produced by EPA in response to a lawsuit filed by CEI under the Freedom of Information Act illustrate a pattern of making it far more difficult for limited-government groups – in particular those who argue for more freedom and less EPA – to access public records.

Such groups are precisely those Congress and courts made clear FOIA was intended to protect from fees being used as a hurdle to obtaining information, without prejudice as to their perspective. Worse, CEI has now obtained proof of the spectacularly disparate nature of the practice, specifically revealing extraordinarily favorable treatment of the same green groups it’s been shown to be collaborating with on its agenda.

FOIA is clear that public interest groups who, by trade, obtain and broadly disseminate “government” information to the public are the intended beneficiaries of its provision for waiving fees. EPA routinely grants such fee waivers to its favored left-wing groups who demand a more intrusive and powerful EPA, but systematically denies waivers for groups on the right, according to research compiled by CEI Senior Fellow Christopher Horner, author of "The Liberal War on Transparency."

In a review of letters granting or denying fee waivers granted at the “initial determination” stage from January 2012 to this Spring, Horner found green groups, such as the National Resources Defense Council, Sierra Club, Public Employees for Environmental Responsibility and EarthJustice, had their fees waived in 75 out of 82 cases. Meanwhile, EPA effectively or expressly denied Horner’s request for fee waivers in 14 of 15 FOIA requests over this same time.¹

Moreover, every denial Horner appealed was overturned. “That these denials are ritually overturned on appeal, not after I presented any new evidence or made any new point, but simply restated what was a detailed and heavily sourced legal document to begin with, reaffirms the illegitimacy of these hurdles EPA places in the way of those who cause it problems.” Horner said. “EPA’s practice is to take care of its friends and impose ridiculous obstacles to deny problematic parties’ requests for information.”

The numbers for a sampling of comparable “national” groups are mind-boggling. Of Sierra Club’s 15 requests, EPA granted 11. And Sierra Club received the harshest of treatments. In fact, EPA granted 19 of NRDC’s 20 requests and 17 of EarthJustice’s 19 requests. Public Employees for Environmental Responsibility went a perfect 17-for-17. The Waterkeeper Alliance had all three of its requests granted, Greenpeace and the Southern Environmental Law Center each were 2-for-2, the Center for Biological Diversity 4-for-4.

That is, these green pressure groups encountered a cooperative EPA 92 percent of the time, but Horner’s requests on behalf of CEI and the American Tradition Institute were rejected more than 93 percent of the time.

EPA documents also showed Judicial Watch and the National Center for Public Policy Research each went 2-for-4, the Franklin Center had both its requests denied, and the Institute for Energy Research was denied in its only foray.

CEI has been recognized as a media outlet by federal and state agencies, so it is worth noting liberal media outlets, such as National Public Radio (7-for-7), ProPublica (3-for-3), the Nation and InsideClimateNews – all had all their requests granted over the same period.

“This is as clear an example of disparate treatment as the IRS’ hurdles selectively imposed upon groups with names ominously reflecting an interest in, say, a less intrusive or biased federal government,” said Horner. “This demonstrates a clear pattern of favoritism for allied groups and a concerted campaign to make life more difficult for those deemed unfriendly. The left hand of big government reaches out to its far-left hand at every turn. Argue against more of the same, however, and prepare to be treated as if you have fewer rights.”

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[1] Of CEI's two requests granted, one of these grants came after CEI had already sued for EPA ignoring its request outright, making the aberration no more than a transparent gesture EPA could claim in trying to convince the court it had not been obstructionist. This and other requests were simply ignored, a form of denial that EPA also employed in the present case that produced these records affirming EPA’s suspected practice.

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CEI is a non-profit, non-partisan public policy group dedicated to the principles of free enterprise and limited government.  For more information about CEI, please visit our website, cei.org, and blogs, Globalwarming.org and OpenMarket.org.  Follow CEI on Twitter! Twitter.com/ceidotorg.

CEI Sues for EPA Official's Private-Account Email

After Receiving Private-Account Email From Region 8 Administrator in Similar Suit, Group Sues Over Ignored Request for Region 9 Administrator's

WASHINGTON, D.C., May 2, 2013 – Yet again, the Environmental Protection Agency has forced the Competitive Enterprise Institute (CEI) to file suit over a stonewalled Freedom of Information Act (FOIA) request for public records that political appointees, and EPA, apparently did not want the public to see.

This time, CEI filed suit in U.S. District Court in Washington to compel production of certain emails sent to or from Jared Blumenfeld, the Agency’s Region 9 (California and the Pacific Northwest) administrator who is the latest EPA official CEI has learned of using his personal email account to correspond on EPA-related matters.

Federal law is clear, as described by EPA to employees in its policy, stating: “Can I use a non-EPA account to send or receive EPA e-mail? No, do not use any outside e-mail system to conduct official Agency business. If, during an emergency, you use a non-EPA e-mail system, you are responsible for ensuring that any e-mail records and attachments are saved in your office's recordkeeping system.”

Recently, Region 8 Administrator James Martin resigned after exposure of his use of a private account to conduct EPA-related correspondence, some of which CEI obtained in litigation settled last week.

On Feb. 26, after learning of Blumenfeld’s correspondence with former Administrator Lisa Jackson at her fictitious-employee “Richard Windsor” account, CEI sent a FOIA request to EPA seeking all records sent to or from or copied to Blumenfeld’s Comcast email address. EPA did not even acknowledge the request, the seventh FOIA request CEI has been forced to sue EPA over since October. Agencies have 20 working days to provide responsive records or a schedule on which they expect to produce.

“Although EPA could not be bothered to acknowledge CEI’s request, it did take the time to provide Sen. David Vitter with a legally misguided, airy dismissal of this most recent exemplar provided by CEI. Apparently, it is merely the latest in a long and growing series of unrelated isolated incidents,” said CEI Senior Fellow Christopher Horner, who filed the FOIA request. “This is the same line that EPA insisted upon in the case of former Region 8 administrator Martin. We now know this was not only was not true, but that EPA made the claim without even asking Martin if it were. That is, this EPA just makes things up to try and make its scandals go away and avoid accountability for rampant violations of the law.”

In CEI’s litigation, relating to Martin’s use of a private account to correspond with the pressure group Environmental Defense, EPA ultimately turned over dozens of pages of emails and attachments discussing EPA-related topics. Congressional investigators then obtained many more such emails to or from the same Martin account showing discussions among EPA officials, pressure groups, lobbyists and captains of rent-seeking industry.

After CEI’s experience in the Martin case and with officials deciding on specious grounds not to turn over responsive records, today’s suit also asks that Blumenfeld not be the person to determine which emails to his personal account pertain to agency business, for obvious conflict-of-interest reasons.

In the course of his investigation into EPA’s efforts to martial allies in favor of a war on abundant energy in general – and coal specifically – and as part of the research for his book, “The Liberal War on Transparency,” Horner discovered widespread use among agency officials of personal email and even alias email accounts to avoid FOIA scrutiny from both outside groups and Congress. Horner also has learned that EPA has been withholding instant messaging and text messages from private and congressional requesters.

► Read CEI’s filed complaint here.

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CEI is a non-profit, non-partisan public policy group dedicated to the principles of free enterprise and limited government.  For more information about CEI, please visit our website, cei.org, and blogs, Globalwarming.org and OpenMarket.org.  Follow CEI on Twitter! Twitter.com/ceidotorg.

CEI Back to Court to Seek Answers on EPA's Fee-Waiver Denials

Agency Is Responsive to Friends But Imposes Barriers, Including Unlawful Fee Hurdles to Public Information, Upon Those It Views as Hostile

WASHINGTON, D.C., April 4, 2013 — Officials at the Environmental Protection Agency unlawfully seek to impose fee barriers as a means of denying and, at minimum, delaying groups EPA deems as unhelpful to its agenda from obtaining public information, according to a lawsuit filed today by the Competitive Enterprise Institute in U.S. District Court. CEI’s lawsuit also indicates that this stands in stark contrast to EPA’s notorious collaboration with environmental pressure group allies, who are instead treated as extensions of EPA.

CEI’s lawsuit asks the court to order EPA to comply with what is known as a “simple” request under the Freedom of Information Act—which EPA nonetheless has refused to even acknowledge—seeking copies of all determinations to grant or deny FOIA fee waiver requests for approximately the past year.

Under FOIA, agencies must waive or substantially reduce fees for record requests by non-profits that broadly disseminate public information, such as CEI, when those records are “in the public interest” and “likely to contribute significantly to public understanding of operations or activities of the government.”

CEI’s success at uncovering and disseminating public information—including former Administrator Lisa Jackson’s false-identity email account in the name of “Richard Windsor”—apparently has led EPA to try and block CEI from further discoveries.

CEI’s experience of apparent retaliation also seems to be part of a new and larger pattern of EPA imposing fee barriers, generally, againstgroups deemed hostile to EPA’s agenda. Other organizations CEI is aware have been similarly obstructed of late include the Franklin Center for Government and Public Integrity, the National Center for Public Policy Research and the American Tradition Institute. This is despite these groups’ requests being for information of obvious public and policy interest, including EPA practices of hiding its communications from Congress and the public, and its work regarding hydraulic fracturing, source of an energy boom the Obama administration nonetheless has targeted.

CEI’s lawsuit seeks to compare this treatment with EPA’s relationship with those groups it deems to be supportive of its agenda,—typically with good reason—such as the Sierra Club and Louisiana Bucket Brigade, which enjoy close working relationships with the agency.

CEI’s suit seeks to compel revelation of just how evenly, or not, EPA has applied the law. “Under FOIA no agency may discriminate or disparately treat similarly situated requesting parties”, said Christopher C. Horner, attorney, senior fellow at CEI and author of the book “The Liberal War on Transparency,” research for which set off the investigation that led CEI to look into EPA’s record-keeping practices. “FOIA’s fee-waiver provision was created specifically to ensure non-profits do not have fee barriers placed in their way of accessing public records. The public deserves to know whether EPA is singling out groups it does not perceive as friendly for discriminatory treatment.”

► Read CEI's April 4 complaint here.

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CEI is a non-profit, non-partisan public policy group dedicated to the principles of free enterprise and limited government.  For more information about CEI, please visit our website, cei.org, and blogs, Globalwarming.org and OpenMarket.org.  Follow CEI on Twitter! Twitter.com/ceidotorg.

CEI Today: Suing EPA, capitalism's false prophets, and computer fraud

SUING EPA

CEI.org: Back to Court to Seek Answers on EPA's Fee-Waiver Denials

Officials at the Environmental Protection Agency unlawfully seek to impose fee barriers as a means of denying and, at minimum, delaying groups EPA deems as unhelpful to its agenda from obtaining public information, according to a lawsuit filed today by the Competitive Enterprise Institute in U.S. District Court. CEI’s lawsuit also indicates that this stands in stark contrast to EPA’s notorious collaboration with environmental pressure group allies, who are instead treated as extensions of EPA.

CEI’s lawsuit asks the court to order EPA to comply with what is known as a “simple” request under the Freedom of Information Act—which EPA nonetheless has refused to even acknowledge—seeking copies of all determinations to grant or deny FOIA fee waiver requests for approximately the past year. > Read more

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CEI is a non-profit, non-partisan public policy group dedicated to the principles of free enterprise and limited government.  For more information about CEI, please visit our website, cei.org, and blogs, Globalwarming.org and OpenMarket.org.  Follow CEI on Twitter! Twitter.com/ceidotorg.

CEI, ATI Sue EPA for Instant Messaging Records

Potential Landmark Case Seeks Discussions on Agency's War on Coal, Role of Pressure Groups from Little-Known Accounts That Have Escaped Scrutiny

WASHINGTON, D.C., April 1, 2013 — In what could be a landmark case, two free-market groups—the Competitive Enterprise Institute and the American Tradition Institute’s Environmental Law Center—have filed suit under the Freedom of Information Act (FOIA) against the Environmental Protection Agency seeking communications among senior EPA officials using instant messaging or IM technology.

In the joint lawsuit filed in Federal District Court in Washington, D.C., CEI asked the court to compel EPA to produce IM discussions to or from former administrator Lisa Jackson, including her alias “Richard Windsor” account, discussing the Obama administration’s war on coal. CEI already is in court for the “Windsor” emails on the same topics.

ATI sought Jackson’s IM correspondence to, from or discussing the Sierra Club and two other environmental pressure groups, as well as similar messages of two other senior officials—Gina McCarthy, who has been nominated to succeed Jackson as administrator, and former senior counselor Lisa Heinzerling, who has rejoined one of these groups.

In the course of CEI’s “Windsor” litigation, it learned EPA staff first used IBM “Sametime” to discuss creating the “Windsor” account. EPA provides Sametime and Oracle Messenger to staff as an alternative to email. Although IMs are “agency records” under the law, they do not seem to have been searched by EPA in response to FOIA requests or requests from Congress seeking “records," or “electronic records,” both of which would cover IMs.

“In addition to important conversations both inside the agency and with outside parties, we expect this suit to provide important information about EPA’s compliance with the law and Congress’ legitimate oversight activities,” said Christopher Horner, attorney, senior fellow at CEI and author of “The Liberal War On Transparency,” the research for which led to the investigation. “Based on information we have obtained, it seems we have uncovered another major transparency scandal in that either EPA is destroying instant messages against the law, or it is withholding them in defiance of its legal obligations to produce.”

EPA’s only response to the groups’ IM requests was to deny fee waivers for both, which are provided for under FOIA for non-profits that broadly disseminate information on government activities.

But, in what Horner calls “an apparent retaliatory tantrum,” the EPA has responded to his involvement in exposing the Richard Windsor account by denying all of his outstanding and subsequent requests for these routine fee waivers, for either ATI or CEI. While these denials are overturned on appeal, Horner claims that “this seems to be yet one more way ‘the most transparent administration, ever,’ is throwing obstacles in the way of transparency for those it deems inconvenient.”

► Read CEI and ATI's March 28 complaint here.

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CEI is a nonprofit, nonpartisan public interest group that studies the intersection of regulation, risk, and markets. For more about CEI, visit www.cei.org/about-cei.