July 25, 2019

EPA Revises FOIA Regulations Without Notice and Comment


On June 26, 2019, the Environmental Protection Agency (“EPA”) published a final rule[1] updating its Freedom of Information Act (“FOIA”) regulations, without the standard notice and public comment period.  The rule is effective on July 26, 2019.

The most significant changes to EPA’s FOIA regulations affect how and where FOIA requests are submitted to EPA.  First, the new regulations make clear that there are only four ways to submit a FOIA request: (1) via EPA’s FOIA submission web site, (2) through “an electronic government submission website established pursuant to 5 U.S.C. 552(m),” (3) via U.S. Mail to the EPA National FOIA Office, or (4) via overnight delivery service to the EPA National FOIA Office.  Under the new regulations, EPA will not accept requests sent “to Regional FOIA Offices by U.S. Mail or other non-electronic means.” This is in contrast to the procedure for making an information request to EPA currently set forth at 40 C.F.R. 2.101, which allows FOIA requests to be sent to either the EPA FOIA office in Washington, D.C., or to a regional FOIA office if the records are believed to be located in an EPA regional office.

Second, the new regulations limit the “writing” by which a FOIA request may be made.  Currently EPA accepts FOIA requests sent by various means so long as those requests are written, including fax or email.  Under the new regulations, EPA will no longer accept FOIA requests sent by fax or imbedded in an email.

Next, EPA’s final rule addresses the authority to respond to FOIA requests.  Current regulations prescribe that the office in possession of the record requested has authority to respond to the request.  More specifically, the “head of an office, or that individual’s designee, is authorized to grant or deny any request for a record of that office or other Agency records when appropriate,”[2] while “the authority to issue initial denials of requests for existing, located records…may be redelegated only to persons occupying positions not lower than division director or equivalent.”[3]  The new rule clarifies that only the EPA Administrator, Deputy Administrator, and “all assistant administrator-level positions and regional administrator positions in the Agency, or their deputies, and certain other office heads have the authority to respond to FOIA requests.”  The stated idea behind this change is to eliminate inconsistencies caused by the difficulty of interpreting the term “division director” across the agency.

Finally, the new rule eliminates the list of FOIA exemptions which as of this writing can be found at 40 C.F.R. 2.105.  EPA states that including the list of exemptions within agency regulations “is unnecessary and redundant of the” Administrative Procedure Act (“APA”).

Substantively, these changes do not appear to be wholly consistent with the APA.[4]  While the statute largely leaves the procedures for requesting information up to the individual agencies, both the letter and the spirit of the law are aimed at transparency, which would seem to dictate ease of access.  For example, section 552(a)(1)(A) of the APA instructs each agency to establish the “places,” plural, at which the public may obtain information.  Limiting acceptance of FOIA requests to those sent to a singular office (the EPA National FOIA Office) contradicts this, and would in fact seem to add to the agency’s burden by preventing a requestor from sending his or her request to a regional FOIA office even if it is clear that the regional office, and not EPA headquarters, is in possession of the requested record.

Procedurally, EPA relies on two exceptions within the APA for bypassing the typical notice-and-comment method of rulemaking.  First, section 553(b)(3)(A) of the APA exempts “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice” from notice and comment procedures (the “procedural exception”).  Second, section 553(b)(3)(B) states that the APA’s notice and comment procedures do not apply “when the agency for good cause finds…that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest” (the “good cause” exception).  The EPA has determined that the good cause exception applies to the revisions striking regulations that are repetitive of FOIA, striking the list of FOIA exemptions, correcting the regulations to conform to amended statutory language, and making style and grammar corrections, because these revisions “are insignificant in impact and inconsequential to the public.”  EPA has determined that the procedural exception applies to all of the other revisions, because those changes “will not significantly affect the substantive rights of regulated entities or the general public.”  

That is the EPA’s opinion, obviously.  Some of the changes, such as eliminating a regulatory rehashing of exemptions set forth in the statute, are indeed inconsequential, as the law itself still provides for those exemptions.  Other of the changes, however, do affect the ability of the public to obtain information about the workings of government, such as by altering the places at which requests may be made and the form those requests must take.  Those changes do affect the substantive rights of the public and are likely to be challenged in court.

Elizabeth Rosso is an attorney at Jordan Ramis PC who focuses her practice on environmental law. Contact her at elizabeth.rosso@jordanramis.com or (503) 598-7070.


Thank you for your interest in this blog. The information contained in this blog is for the general interest of our readers and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact an attorney in our environmental practice group.


[1] 84 Fed. Reg. 30030.
[2] 40 C.F.R. 2.103(b).
[3] 40 C.F.R. 2.104(h).
[4] 5 U.S.C. § 551 et seq.

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