Also, concerning one EPA employee in particular, the judge said the person “at best, demonstrated utter indifference to EPA’s FOIA obligations” and “at worst” the employee “is lying,” although there is not enough evidence in the record to determine which conclusion is correct.
Judge Royce Lamberth, U.S. District Court for the District of Columbia. (AP)
In his opinion in the case of Landmark Legal Foundation v. the Environmental Protection Agency, U.S. District Judge Royce Lamberth described the EPA’s attitude toward FOIA requests as “shoddy,” “offensive” and “insulting” after the agency effectively ignored and continually botched a FOIA request from the LLF, a right-leaning law firm, in 2012.
Lamberth also said, “At bottom, EPA’s handling of Landmark’s request leaves far too much room for a reasonable observer to suspect misconduct.”
“Two possible explanations exist for EPA’s conduct following Landmark Legal Foundation’s filing of a Freedom of Information Act request in 2012,” Lamberth wrote in his opinion, released Monday, Mar. 2. “Either EPA sought to evade Landmark’s lawful FOIA request so the agency could destroy responsive documents, or EPA demonstrated carelessness toward Landmark’s request.”
“Either scenario reflects poorly upon EPA and surely serves to diminish the public’s trust in the agency,” he added.
On Aug. 17, 2012, the Landmark Legal Foundation, a public interest law firm run by well-known conservative attorney Mark Levin, filed a FOIA request with the EPA asking for information and records regarding any outside environmental groups the agency had consulted or communicated with on policy and regulations.
Mark Levin, president of the Landmark Legal Foundation. (FNC screenshot)
The LLF also asked for any records showing that the EPA was slowing or delaying the announcement of any regulations or public comment opportunities until after the presidential election on Nov. 6 of 2012.
The short, two-part FOIA started a series a actions in the EPA that would last more than two years.
The EPA first denied LLF’s request for expedited processing in October of 2012. The agency then issued a notice to 45 of its employees to preserve “potentially relevant information” relating to the FOIA request with a due date of October 30.
This notice, however, was not sent to the agency’s top two officials, then-Administrator Lisa Jackson and Deputy Administrator Robert Perciasepe.
Aaron Dickerson, special assistant to the Administrator, and Nena Shaw, then-special assistant to the Deputy Administrator, reportedly received but did not respond to the notice, and were not given the due date, Lamberth said.
The agency then dragged its feet on responding to the FOIA until well after the Nov. 6 election, when President Barack Obama was ultimately elected for a second term. The EPA officials also failed to conduct a thorough search for potentially relevant EPA records, including searching Administrator Jackson’s personal email accounts that she used for government business, Lamberth noted in his opinion.
Former EPA Administrator Lisa Jackson at the climate conference in Copenhagen, Denmark. (AP Photo)
Jackson’s Blackberry, which easily could have contained relevant information, was erased following her resignation in February 2013, Lamberth added.
Lamberth also noted that “there is no evidence in the record that…anyone…conducted a search of the Deputy Administrator’s records prior to December 20, 2014” – more than two years after the initial FOIA request was filed.
On top of failing to look through relevant records, Special Assistant Nena Shaw also claimed to have experienced “technical difficulties” while transferring information to the collection database. Instead, she “printed the responsive records” but “does not recall precisely what happened to the printed records,” Lamberth said.
“Such an assertion is about as close to a sworn ‘dog ate my homework’ statement as one can make,” Lamberth said, adding that “the Court can only conclude that such responsive records – if they ever existed in the first instance – have been lost.”
Lamberth further said, “At best, Shaw demonstrated utter indifference to EPA’s FOIA obligations. At worst, Shaw is lying. There is not enough in the record from either Landmark or EPA to determine which is correct. What is clear, however, is that Shaw goes out of her way to avoid presenting any defined timeline for her search-related activities, which only adds to the fuzziness of her declaration.”
Despite slamming the EPA for its poor management of the LLF’s information request, Lamberth denied LLF’s request for sanctions against the agency for withholding information, explaining that LLF could not prove that EPA officials acted in “bad faith,” and that “[n]egligence is insufficient to impose punitive sanctions.”
However, that did not stop Lamberth from stating that the EPA’s “offensively unapologetic” mishandling of the FOIA request “leaves far too much room for a reasonable observer to suspect misconduct.”
“The Court is left wondering whether EPA has learned from its mistakes, or if it will merely continue to address FOIA requests in the clumsy manner that has seemingly become its custom,” Lamberth said.
“This Court would implore the Executive Branch to take greater responsibility in ensuring that all EPA FOIA requests – regardless of the political affiliation of the requester – are treated with equal respect and consciousness,” he added.
Responding to Lamberth’s opinion, Levin accused the EPA of viewing Americans as “public enemies,” calling their mishandling of FOIA requests “reprehensible.”
“Judge Lamberth’s decision should be a complete embarrassment for everyone at the Environmental Protection Agency,” Levin said. “Their conduct, from start to finish in this case, was reprehensible, and the Judge made clear that they avoided severe punitive sanctions only because of the narrowly defined requirements of the law.”
“The corporate culture at the EPA, from the Administrator down to the most junior administrative assistant, is that of an imperial bureaucracy answerable only to its own ideological agenda,” Levin added. “To them, the American public are nothing but public enemies. And the EPA shouldn’t judge its success in handling FOIA requests by whether or not any of its people wound up facing federal contempt charges or possible criminal prosecution.”