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Information Access-Surveying the Current Legal Landscape of Federal Right-to-Know Laws

August 22, 2008

By Vladeck, David C

“The obligation to endure gives us the right to know.”1 I. Introduction

This Symposium was convened to assess how, in this new age of environmental law, scholars, advocates, policy makers, journalists, and other interested members of the public can gain access to and harness information about our environment. My modest role is to provide an overview of federal right-to-know laws,2 including the Freedom of Information Act3 (FOIA), and to ask whether these statutes ensure that environmental information is made available to the public in a timely and dependable way.

In theory, the answer is yes. Taken together, these statutes appear to provide a comprehensive right of access to information generated by the federal government or acquired by the federal government from private parties and state and local governments. The most far-reaching of these statutes, FOIA, forms the backbone of our nation’s right-to-know legal regime. It embodies the ideal that information is the lifeblood of democracy. To animate that ideal, FOIA gives “any person” a right to obtain, simply by asking for it, “any record” in the possession and control of a federal agency, government corporation, or other federal entity,4 subject to certain exemptions set forth in the Act.5 In addition to FOIA, other statutes of general applicability-most notably the Government in the Sunshine Act6 and the Federal Advisory Committee Act7-impose substantial transparency requirements on government agencies that act through multimember commissions, and on nongovernmental entities that provide advice to the government. More specific statutes, including the Emergency Planning and Community Right-to-Know Act;8 the National Environmental Policy Act;9 the Safe Drinking Water Act;10 the Federal Insecticide, Fungicide, and Rodenticide Act;11 the Clean Air Act;12 and the Toxic Substances Control Act,13 place affirmative duties on federal agencies to make information available to the public, either on the agency’s own initiative or on demand by members of the public. Taken together, these statutes seem to provide a right of public access to virtually all environmental information in the hands of the federal government. This presumptive right of access is limited only by exemptions for information whose disclosure might compromise legitimate nationalsecurity14 or law- enforcement interests;15 might interfere with internal government deliberations;16 might impair the competitive position of private parties who submitted information to the government;17 or might discourage private parties from voluntarily providing information to the government in the future.18

In practice, however, this net of government-information statutes provides what is at best a piecemeal and not entirely satisfactory pathway to needed environmental information and is at worst the illusion of a right of access where none exists. There are many reasons why the reality does not match the expectations.

First, FOIA-by far the most important access tool-is a requester- driven statute. The government’s responsibility under FOIA is to respond to requests for information, not to initiate the publication or dissemination of information, regardless of how useful the information would be to the public.19 This is FOIA’s Achilles’ heel. The process of drafting and submitting FOIA requests and then waiting for the agency’s response is a breeding ground for delay and cynicism over the Act’s efficacy. Requesters with time-sensitive needs for information find FOIA’s cumbersome requestand-wait-for-a- response approach an often-fatal barrier to the statute’s usefulness. The process also invites disputes over whether the requester directed the request to the appropriate governmental entity and described the requested records with adequate specificity, which in turn engender more delay and cynicism.20

Congress sought to fine-tune FOIA in 1996 when it enacted the Electronic FOIA Amendments (EFOIA) to place affirmative obligations on agencies to compile information that is of general interest to the public and to make it available on the Internet.21 But agencies have by-and-large failed to comply with EFOIA’s affirmative disclosure mandate,22 and thus FOIA remains predominantly a requester-driven statute. Congress revisited FOIA in 2007. Although the 2007 FOIA amendments mark an important step forward by strengthening requesters’ procedural rights in dealing with agencies, they do not address the problems that have plagued EFOIA, much less cure the substantive deficiencies in the Act.23

Second, a perennial problem is that access-to-information statutes are subject to political manipulation by administrations that are intent on limiting public access to government-held information. Consider two brief examples. When George W. Bush took office in 2001, one of the first official acts of his Attorney General John Ashcroft was to issue a directive to the heads of all federal agencies and departments notifying them that the Justice Department would defend all agency efforts to withhold information under FOIA so long as there was a plausible basis for so doing.24 Agencies were warned to assess disclosure decisions carefully and that decisions to disclose records “should be made only after full and deliberate consideration of the institutional, commercial, and personal-privacy interests that could be implicated by disclosure.”25 The Ashcroft memorandum replaced a memorandum issued by Ashcroft’s predecessor, Attorney General Janet Reno, which instructed the Justice Department not to defend agency withholdings under FOIA unless there was an identifiable governmental interest in withholding the record.26 The impact of the Ashcroft memorandum was dramatic. Agencies saw it as a license, if not an edict, to withhold information that prior administrations would have released without question.27 As a result, information that could have been made public without compromising legitimate secrecy interests was withheld, and requesters who had the resources to undertake litigation were forced to bring suit to pry loose agency records that in the past would have been made public as a matter of routine.28

More recently, the Environmental Protection Agency (EPA) has drastically scaled back the information made public under the Toxics Release Inventory (TRI) program of the Emergency Planning and Community Rightto-Know Act.29 The TRI program tracks the waste production and release of approximately 650 dangerous chemicals.30 Prior to EPA’s rollback, facilities had to report detailed information for any amount over 500 pounds about the amount of any of those chemicals and where the chemical went .31 For pollution amounts less than 500 pounds, facilities only had to file a short form certifying that the chemical was under the limit.32 Now, for the majority of TRI chemicals, the threshold for reduced reporting is 5,000 pounds, so long as 2,000 pounds or fewer are released directly into the environment.33

Third, access-to-information statutes are only as effective as courts say they are, and the effectiveness of FOIA and other access- to-information statutes has been undercut by judicial interpretation. The Federal Advisory Committee Act has been severely undermined by a series of crippling court rulings.34 FOIA has not fared well in the courts either. Courts have approved lengthy agency delays in processing requests.35 Courts have interpreted exemptions in FOIA and other statutes for trade secrets and confidential business information quite expansively, creating a broad and widening gap in the public’s ability to acquire environmental information generated by corporations and submitted to the government to enable it to carry out its environmental-protection responsibilities.36 Even when requesters prevail in litigation, the time spent in court often diminishes the information’s value.37 And the Supreme Court’s increasingly restrictive approach to attorney’s fees has weakened the ability of prevailing plaintiffs in access-to- government-information litigation to collect their fees.38 To illustrate the pitfalls in enforcing what we call, perhaps naively, FOIA’s “right” of access, I use two cases I have worked on for environmental groups to show that even diligently pressed FOIA litigation takes time and effort and slows substantially the outflow of important public-health data. And not all litigation succeeds.

Where does this leave us? In my view, there is now a significant and growing dissonance between the promises made by our federal right-to-know laws and their performance. Part of the problem, of course, is entrenched resistance by government officials (of both political parties) to giving the public the ability to stand over their shoulders while they do their jobs. People do not want to do their work in a fishbowl. Legislation cannot change human nature. Nor can legislation safeguard access-to-information laws from subversion by administrations hostile to the ideal of openness. But there is much that legislation could do to recalibrate the way our right-toknow laws work in practice. In my view, it is time to overhaul our nation’s right-to-know laws in three important ways:First, right-to-know laws should place an affirmative duty on the government to make environmental information available to the public. Some statutes, the TRI-enabling statute for example, already follow that model.39 But most other statutes-especially FOIA-do not.40 The Internet and other communications tools have made obsolete the request-and-wait-for-a-response approach designed for paper records. Placing the obligation for disclosure on the government also resolves the nettlesome procedural problems- backlogs in responding to requests, in addition to disputes over whether the requester submitted the request to the proper agency or adequately described the requested records-that impair the effectiveness of FOIA and other requester-driven statutes. It is time to move our access-toinformation statutes into the Electronic Age. Second, right-to-know laws should grapple with the crosscutting problem of confidential business information, which is the most frequently invoked justification for denying public access to environmental data.41 Agencies are ill-equipped to deal with confidentiality claims, and they generally rubber-stamp company claims of commercial sensitivity. That is not surprising. Information asymmetries put agencies at a serious disadvantage in evaluating these claims, and the looming possibility of “reverseFOIA” actions (cases brought by submitting companies to enjoin disclosure) threaten to drain scarce agency resources, intensifying the pressure on the agency to accede to company demands for confidentiality.42 There is also force, as a general matter, to the argument that companies should not be subject to commercial harm simply because they are compelled to report their activities to the government.43

But a one-sided system is an open-handed invitation to abuse, and only a small fraction of information asserted to be commercially sensitive is, in fact, sensitive. To handle claims of competitive injury better, procedures must be fashioned: (a) to place a significant burden of proof on the submitting company to substantiate claims of commercial sensitivity; (b) to deter unfounded claims of likely competitive harm by punishing companies that make them; and (c) to enable agencies to evaluate claims of likely competitive injury more effectively.

Third, Congress should send a strong signal to the judiciary that accessto-information statutes should be construed to maximize public access to environmental data and to permit withholding where-but only wheredisclosure is likely to cause an identifiable and significant harm to the government or the submitter. To be sure, FOIA already requires de novo judicial review and places the burden of persuasion on the government.44 But courts have nonetheless been deferential to agency exemption claims. In environmental cases, courts have fallen into the trap of presuming that a company will sustain competitive injury if information it submitted to the government is made public. That is the essence of the en bane ruling of the D.C. Circuit in Critical Mass Energy Project v. Nuclear Regulatory Commission.45 As a result, all too often courts defer to generalized agency claims of harm without taking into account the age of the records, the remoteness of the alleged injury, or the nature of the alleged injury. And, at present, none of the federal access-to-information statutes empower courts to balance the public interest in disclosure against the private interest in secrecy-a calculus that would result in the disclosure of valuable environmental information.46

II. Crosscutting Federal Right-to-Know Statutes

As noted above, there are three main crosscutting federal right- to-know statutes. Because the focus of this Article is on access to environmental information, we will skip over the Government in the Sunshine Act, which requires agencies headed by “collegial bodies” to hold open meetings.47 Of the major agencies that are involved in environmental regulatory matters, it appears that only the Nuclear Regulatory Commission is constituted as a collegial body, and it has not been subject to much litigation under the Act.48 So we will put the Sunshine Act to the side. Rather, we will focus our main attention first on the Freedom of Information Act and then turn to the Federal Advisory Committee Act.

A. FOIA

1. Background.-First enacted in 1966, FOIA was truly an experiment in open government.49 It was one of the first right-to- know statutes that guaranteed the public a window into the activities of its government.50 At the time of its passage, only two countries-Sweden and Finland-had open record laws resembling FOIA,51 and neither law was as comprehensive as FOIA.

FOIA establishes a presumption of open access to all records in the hands of the federal government. FOIA does so in three ways: it requires the government to publish some information in the Federal Register, it requires the government to make other information available to the public in reading rooms and now via the Internet; and, most importantly, it gives members of the public a general right to ask for and be provided with virtually all government-held information.

To start with, FOIA requires agencies to publish in the Federal Register all “substantive rules of general applicability,”"statements of general policy or interpretations of general applicability formulated and adopted by the agency,” and descriptions of the agency’s organization and rules regarding requests to obtain agency information.52 Since 1993, the Federal Register has been available on the Internet the same day it is published by the Government Printing Office.53

FOIA next directs agencies to make specific information available in public reading rooms, including final opinions made in the adjudication of cases, statements of policy not published in the Federal Register, and administrative and staff manuals that are not otherwise publicly available.54 Congress expanded the coverage of this provision in 1996 with the passage of EFOIA.55 EFOIA has two goals. First, it instructs agencies to make available copies of all records that have been released under FOIA and that, because of their subject matter, have become or are likely to become the subject of similar FOIA requests.56 As a result of this provision, agencies now offer collections of materials in searchable reading rooms grouped around discrete issues-the papers of Dr. Martin Luther King Jr., the Kennedy Assassination materials,57 records from the Bay of Pigs fiasco,58 and the like. second, EFOIA directs agencies that all materials subject to the requirements of this provision of the Act created on or after November 1, 1996, must be made available to the public on the Internet as well as in hard copy.59 It is this part of EFOIA that has been poorly implemented by agencies,60 and nothing in the OPEN Government Act of 2007 addresses agency noncompliance with EFOIA.61

The real genius of FOIA, however, is its provision permitting anyone to seek access to government-held information upon request.62 The right of access conferred by FOIA could not have been more broadly conceived. It allows “any person”63-including corporations, nonprofit entities, and even foreign nations64-to request any record from any federal agency or government-controlled entity on any subject, without saying why the record was requested or what purpose disclosure would serve.65 The breadth of FOIA’s coverage is driven home by the fact that the word “record” is read expansively to include not just paper records but also information stored on virtually any form of media-including electronic media, computer tapes, photographs, audiotapes, and movies and videotape.66

This part of the law was intended to reverse the burden imposed by the public-information provision of the Administrative Procedure Act (APA), which permitted access to government records where-but only where-the requester could show a compelling need for the records.67 FOIA reverses that burden first by establishing a broad presumption of openness, and then by making explicit that the Act’s nine limited bases for withholding information are exclusive.68 And to underscore its message of public empowerment, FOIA specifically authorizes a disappointed requester to bring suit to compel disclosure of withheld records and places the burden of proof on the government, not the requester.69

FOIA is remarkable from a political perspective as well. The product of eleven years of congressional investigation and deliberation,70 Congress enacted FOIA despite the Executive Branch’s clear lack of enthusiasm for the measure. No agency supported it. No Johnson Administration official spoke in its favor. President Lyndon B. Johnson did not support the Act but reluctantly signed the measure at the last moment only because he was under intense pressure from the press to do so.71 As a result, FOIA’s passage was not seen as a propitious event by the one branch of government to which it applied; this lukewarm-at-best reception might explain why the Executive Branch ignored, and at times subverted, FOIA during its early years and periodically since then. Indeed, the Executive Branch’s continuing failure to faithfully implement FOIA has led to a number of significant amendments to the Act. The Act was first amended in 1974,72 then it was amended again in 1976(73) and almost like clockwork every decade thereafter-in 1986,74 1996,75 and 2007.76

2. A Tale of Two cases.-To illustrate the strengths and weaknesses of FOIA in practice, it is useful to briefly sketch the progression of two FOIA cases I worked on for environmental organizations.77 The first, NRDC v. United States Department of Defense,78 is, as of this writing, an ongoing effort to force the Department of Defense (DoD) and the Office of Management and Budget (OMB) to release records relating to perchlorate, an ingredient in rocket fuel that contaminates groundwater in about thirty states.79 Earlier in the litigation, EPA was also a defendant; it was dismissed as a party after several years of litigation resulted in the Agency’s release of thousands of records.80 The case began the way almost all FOIA cases begin. Natural Resources Defense Council (NRDC) had looked at the health-effects data on perchlorate and concluded that it likely posed a significant threat to peopleparticularly pregnant women and infants-who might be exposed to it through their drinking water.81 To learn the extent of perchlorate contamination in the United States, the gravity of the health risks posed to the public by perchlorate, and what efforts, if any, the government was taking to remediate perchlorate contamination, NRDC submitted a series of FOIA requests in the spring and fall of 2003 to DoD and EPA, and later to OMB.82 The selection of these agencies was based on their integral role in creating, evaluating, and mitigating perchlorate contamination. DoD was targeted because it bears responsibility for both contamination and remediation, inasmuch as it was the Air Force’s use of perchlorate in rocket fuel that led to groundwater contamination. EPA was selected because it is responsible for determining what level, if any, of perchlorate contamination may be tolerated without endangering the public health and coordinating cleanup efforts. And OMB plays a central role in coordinating administration policy on decisions-like environmental remediation-that have significant budgetary and political implications.83

Under FOIA, agencies have twenty working days to respond to an initial FOIA request and may, under certain circumstances, grant themselves an additional ten working days.84 If the agency responds, then the requester must file an appeal, and the agency has an additional twenty working days to respond.85 But those time limits are rarely met and are unenforceable as a practical matter.86 Predictably, none of the agencies responded to NRDC’s requests, so NRDC sent in additional letters urging a response and bided its time. After waiting a full year, NRDC filed this action in March 2004 against all three agencies.87

Predictably as well, the initiation of litigation did not result in a massive outflow of records. Instead, the agencies filed a typically uninformative answer88 and, over the next nine months, requested successive extensions of time, each request representing that the extensions were needed to enable the agencies to complete their searches for responsive documents, to process the large volume of documents identified as responsive, and to release nonexempt documents.

Finally, in November 2004-over eighteen months after NRDC filed its initial FOIA requests-EPA and DoD filed their Motions for Summary Judgment.89 At that time, EPA released approximately 15,000 documents and withheld, in full or in part, approximately 5,300 documents.90 DoD released a few hundred documents and withheld, in full or in part, approximately 1,700 documents91-bringing the total of withheld records to 7,000 (not counting OMB’s).92 To justify its paltry release of documents, DoD explained that it had excluded the Air Force from its search for responsive records.93

Under FOIA, agencies bear the burden of proof on every issue before the court.94 But three obvious flaws in the Government’s motions fueled my suspicion that they were not filed to win a quick litigation victory but to delay the progress of the litigation. First, DoD acknowledged that it had refused to search Air Force records, even while it claimed that it had designated the Air Force as its “lead military agency” on perchlorate years earlier (though it had not made this designation public).95 Although the Air Force was therefore the likely repository for many responsive records, its records were not searched because the DoD claimed it had no legal obligation to do so.96

Second, the declarations and Vaughn97 indexes submitted by the Government were seriously deficient.98 DoD’s Vaughn indexes provided no document-specific justifications at all, and EPA’s Vaughn index provided only the kind of general boilerplate justifications that courts had repeatedly rejected as inadequate to sustain the Government’s burden of proof.”

The third and final straw was that the Government withheld many records on the basis of obviously overbroad exemption claims. The lion’s share of records-nearly 6,000 of the 7,000 withheld-were withheld under FOIA’s Exemption 5,100 which entitles an agency to withhold internal deliberative or predecisional documents.101 But many of the documents withheld under Exemption 5 were created by outsiders who submitted them to the agency, thus rendering Exemption 5 inapplicable.102 Many others were plainly factual documents that do not qualify as “deliberative” or “predecisional” under Exemption 5.103

In May 2005, the district judge rejected the Government’s claims.104 At the outset, the court found DoD’s refusal to search Air Force records “unreasonable, if not disingenuous.”105 DoD’s regulations required the agency to search Air Force records, and the court held that the Department’s designation of the Air Force as its lead military component only heightened the implausibility of the agency’s defense.106

The court next found the Government’s Vaughn indexes inadequate because they failed to explain why the withheld records were predecisional.107 DoD’s Vaughn index simply listed the decisions the Department had to make without identifying the documents that played a role in each decision.108 As the court put it, DoD gave it “all the pieces of the puzzle, and now the Court is obliged to fit the more than 1,600 pieces of the puzzle together,” thereby shifting ‘”a sizable portion of the agency’s . .. burden onto the shoulders of the court.’”109 The same flaw undermined EPA’s index. EPA had failed to ‘”connect the dots’ between each withheld document and a decision- making process or specific decision.”110

Lastly, the court found that neither agency had given the court sufficient information to determine that the records were in fact deliberative; that the records had not been shared with outsiders; and that all segregable nonexempt information had been disclosed.111

Having rejected the Government’s summary judgment motion, the court ordered DoD to search the Air Force records, to make responsive records available to NRDC, and to submit a Vaughn index for all Air Force records withheld.112 Recognizing the large number of already-identified documents subject to dispute, the court directed the “parties to select an agreed-upon reasonably sized representative sample of the withheld documents” and to use that sample as the basis of the next round of litigation.113

All of that, of course, took time. After skirmishing with each defendant, the case was ready for another round of briefing by late 2005. OMB went first and submitted its summary judgment motion in September 2005.114 During its review process, OMB had released over 1,500 records to NRDC but withheld 3,199.115 Taking a cue from the court’s first decision, rather than ask the court to rule on 3,199 disputed records, the parties agreed that they would focus their dispute on a representative sample of 320 records, and that the court’s disposition on those records would determine the fate of the remaining records.116 While preparing its summary judgment motion, OMB decided that twenty records were nonresponsive and excluded them for that reason, and that fifty-seven documents should be released to NRDC.117 This left 243 documents, in whole or in part, at issue; all were withheld under Exemption 5.118

OMB’s exemption claims were alarming. OMB was playing a critical role in pressing EPA to set a high threshold for perchlorate exposure, thereby minimizing the remediation costs the government and defense contractors would face.119 OMB had shared documents relating to potential cleanup costs with outside lobbyists working for defense contractors, including the “EOP Group,”120 a lobbying group composed of former OMB staffers, and Richard Beizer, a former OMB economist who the agency claimed was an unpaid consultant.121 OMB withheld these records from NRDC, making the far-fetched claim that doing so was necessary to “presenc[e] the confidentiality of internal Executive Branch deliberations.”122

OMB’s exemption claims suffered from other flaws, including the same shortcomings the court had identified in its first ruling. Although OMB invoked Exemption 5 to withhold all 3,199 records, the agency’s Vaughn index did not identify the authors or recipients of many of the withheld documents, suggesting that the documents may well have been produced by, or shared with, nongovernmental parties.123 And OMB failed to demonstrate that it had released to NRDC all segregable, nonexempt portions of the records-another danger signal that something was amiss.

EPA and DoD filed their renewed motions for summary judgment two weeks after OMB’s motion.124 Basing their submissions on samples selected by the parties, these agencies claimed that they had fixed the shortcomings in their Vaughn indexes and declarations identified by the court in its initial ruling.125 We filed extensive opposition briefs and were prepared to argue the motions.

In March 2006, the court issued another substantial opinion denying the motion for summary judgment filed by OMB and the renewed motions filed by EPA and DoD.126 Finding that OMB had engaged in “selective disclosures” to aid private industry in its fight against perchlorate regulation, the court held that OMB had to turn over records shared with outside parties, including the EOP Group, Beizer, and other “contractors.”127 The court next held that DoD’s failure to identify the recipients and authors of withheld records foreclosed the agency’s reliance on Exemption 5, and accordingly ruled that those records had to be released as well.128 The court also rejected each agency’s claim that it had released segregable factual information from withheld records.129 This point was critical to NRDC because the Vaughn indexes showed that the agencies were withholding a considerable amount of factual information- relating to groundwater contamination, perchlorate’s health effects, and the methods and costs of remediating the contamination-by claiming that the information was inextricably intertwined with exempt deliberative materials.130 The court found that none of the agencies had sustained its burden and ordered this information disclosed as well.131 The case soon became even more complicated. In April 2006, the Air Force moved for summary judgment.132 Having spent a full year on its search, the Air Force claimed that it had uncovered barely 400 records relating to perchlorate-many of which were published scientific studies NRDC already had.133 The declarations the Air Force submitted to justify its paltry results raised questions about the thoroughness of the agency’s search. NRDC filed an emergency motion for leave to take discovery on the adequacy of the Air Force’s search, which the Air Force opposed.134 Puzzled by the small number of records the Air Force unearthed, the court thought that something was awry and granted our motion.135 We took extensive discovery, which showed that thousands of responsive records had not been identified and turned over. It also revealed close ties between the Air Force and defense contractors worried about the costs of remedying perchlorate contamination.

Meanwhile, in July 2006, NRDC and EPA entered into a settlement to establish a process for resolving their dispute over the remaining records.136 Under the settlement, NRDC would designate specific documents for intensive EPA review.137 If EPA decided to withhold a document, it would provide a detailed justification for its decision.138 If the parties could not agree on a disposition based on that justification, then the dispute would be referred to a magistrate judge, whose decision on the matter would be final.139 These procedures enabled the parties to resolve their differences and wind up the litigation involving EPA. But, at the time of this writing, proceedings remain active with both DoD and OMB.140

NRDC v. Department of Defense showcases some of the common procedural pitfalls that await FOIA plaintiffs. I want to turn briefly to New York Public Interest Research Group (NYPIRG) v. EPA141 to spotlight the key substantive difficulty with FOIA in environmental litigation-FOIA’s exemption for confidential business information (Exemption 4).142 NYPIRG involved EPA’s plan to clean up the Hudson River, which had been contaminated by at least one million tons of polychlorinated biphenyls (PCBs) that had been discharged into the river by the General Electric Corporation (GE) over a thirty-year period.143 PCBs are thought to be carcinogenic,144 and the massive nature of the contamination made the Hudson the largest Superfund site in the nation.145 Under the Comprehensive Environmental Response, Compensation, and Liability Act146 (CERCLA), EPA has the authority to compel a responsible party to implement a cleanup remedy chosen by the agency.147

In December 2000, after long deliberation, EPA published for public comment a proposed plan for dredging the upper Hudson River to eliminate PCB contaminants, at an estimated cost of over $450 million.148 GE had long waged a costly and sustained campaign against dredging.149 GE argued that dredging was the wrong cleanup strategy because it would result in the resuspension of PCB that had settled to the river floor.150 GE favored cheaper measures, which it argued would avoid the possibility of PCB resuspension.151 GE made several submissions of its views to EPA and OMB, including analyses of comparative estimated costs and scientific evaluations of the effectiveness and environmental impact of its approach.152

After the comment period closed on July 1, 2001, GE engaged in off-the-record meetings with EPA and OMB, and provided EPA with further analyses of the dredging remedy that were not included in its public comments.153 EPA and GE entered into a confidentiality agreement in connection with these meetings.154 In February 2002, EPA ordered that its proposed large-scale dredging plan be implemented, and in July 2002, EPA issued an Administrative Order on Consent, in which GE agreed to pay EPA $5 million for partial reimbursement of the agency’s past costs and up to $2.625 million for the agency’s future costs-a small fraction of the agency’s past costs and an even smaller fraction of the agency’s estimated future costs.155

In NYPIRG’s view, the settlement between GE and EPA had all of the hallmarks of a government giveaway. To learn what had taken place during the secret meetings, on September 7, 2001, and again on October 1, 2001, NYPIRG filed FOIA requests with EPA seeking access to all correspondence between EPA and GE, and all documents concerning or exchanged during meetings held after July 1, 2001, between EPA, OMB, and GE about the Hudson River PCB Superfund site cleanup.156 Having heard nothing from EPA, on November 8, 2001, NYPIRG appealed the Agency’s de facto denial of its requests and in response received a few innocuous documents.157 The remainder of NYPIRG’s request was denied.158 On January 15, 2002, NYPIRG filed an appeal. Ten days later, EPA produced two additional documents but denied NYPIRG’s appeal.159 NYPIRG also filed a FOIA request with OMB on October 4, 2001, asking for OMB’s records of meetings and correspondence with GE concerning the Hudson River PCB Superfund site for the period after July 1, 2001.160 OMB notified NYPIRG that, in light of exceptional circumstances, it was taking a ten-day extension. But it did not thereafter respond to the request.161 Having run out of options, NYPIRG filed the case against EPA and OMB on July 3, 2002.162

On the merits, the key question was whether, under FOIA, EPA could withhold forty-three records it received from GE as part of the negotiations over GE’s responsibility for cleaning up the Hudson.163 The sole basis for EPA’s withholding was FOIA Exemption 4, which protects trade secrets and confidential business information.164 The withheld documents, many of which were entitled “Hudson River Proposal” and “Hudson River-Proposed Remedy,” set forth GE’s analyses of the costs, benefits, and environmental consequences of EPA’s proposed remedy and GE’s alternatives.165 Many of the pages were marked “Privileged & Confidential,” and the confidentiality agreement executed by the parties contemplated that EPA would not share these submissions with nongovernmental parties.166 GE made no effort to intervene in the litigation, nor did it submit any declarations or affidavits explaining why, in its view, the documents were privileged or confidential.167

The technical legal question raised in NYPIRG is one that recurs with some frequency in environmental FOIA litigation-namely, whether information of the kind GE provided to EPA falls within the scope of Exemption 4. EPA argued that it did because the information was commercial in nature and because it was confidential, as evidenced in part by the confidentiality agreement GE and EPA had executed.168 For its part, NYPIRG contended that the Government’s argument was flawed because the withheld documents had no intrinsic commercial value: they “were not prepared to aid GE in its business (unless its business is dumping hazardous materials into the Hudson River) but to advocate against the environmental remedy favored by EPA- dredging the river-and thereby reduce GE’s potential liability.”169

The district court ultimately agreed with NYPIRG, but its reasoning reveals the friction points under Exemption 4. The court initially addressed the Government’s contention that the documents were “commercial.”170 Recognizing the indeterminacy of the word, the court examined the relevant case law and Exemption 4′s legislative history to give the word meaning.171 The court concluded that to qualify as commercial the “information itself must in some fashion be commercial or financial in nature or use.”172 Applying this rule, the court found the information at issue did not qualify as commercial.173 The court reasoned that although GE “clearly is a commercial entity,” the information “does not reveal anything about the nature and character of GE’s business, or its revenues, expenses or income, or anything that a commercial business would want to protect for fear of competitive injury.”174 The court further noted that there had been “no showing that the information had intrinsic commercial value to GE or to its competitors, or was used by GE in any aspect of its daily operations, or that GE had a commercial interest that could be compromised by its disclosure.”175 Rather, GE submitted the documents in order to “advocate a policy position, because it had a financial stake in the outcome of its meetings with EPA and OMB, and because it sought to convince EPA to adopt its less expensive remedy in addressing GE’s dumping of PCBs into the Hudson River.”176

The court also wrestled with EPA’s alternative claim that disclosure of the records would impair the agency’s ability to obtain necessary information in the future, and therefore that the information was “confidential” under Exemption 4.177 In addressing this question, the court flagged but did not resolve the question of whether National Parks or Critical Mass provided the controlling test for impairment.178 Although the court criticized Critical Mass, it found that under either test, EPA had not shouldered its burden of proving likely impairment.179 The court recognized that the confidentiality agreement was evidence that GE expected the records to remain confidential and supported the inference that, but for a promise of confidentiality, GE would not have furnished them to EPA.180 But the court concluded that GE’s subjective belief was not dispositive, and that at times a “voluntary submitter may have sufficient external incentives to ensure continued government access to the desired information despite the prospect of public disclosure.”181 Here, of course, GE’s incentives all cut in favor of submission to EPA, regardless of the possibility of public disclosure.182 “GE sought to convince EPA to abandon, or at least downscale, its dredging plan; to fortify its arguments, it provided the information at issue here. Supplying this information was central to GE’s advocacy efforts.”183 The district court accordingly ordered EPA to release the records submitted by GE;184 after some deliberation, the Government chose not to appeal and turned the records over to NYPIRG. 3. Lessons Learned?-What are the lessons to be drawn from these cases? The point of this in-depth examination of two garden-variety FOIA cases involving environmental information is to provide the basis for a report card on FOIA’s performance. There is good news, and there is bad news.

First, the good news: FOIA remains a viable tool to pry loose environmental data if-but only if-there is no urgent need for the records and one has access to a legal team that can sustain the effort over a long haul. FOIA can enable requesters to gain access to important environmental information that the government has incentives to withhold for many reasons-to avoid public accountability, as in both of the cases discussed above; to avoid disclosing compromising information, including information submitted by outside parties, as in both cases; or for more benign purposes, such as genuine but unwarranted concern about commercial harm to the submitter, as may have been the case in NYPIRG.

The records released in both cases also proved quite useful to the requesters. NRDC used the records it received from EPA to make its case about the health risks associated with perchlorate.185 And it used the contractor information it received from OMB and DoD to demonstrate that political forces within the Administration were trying to manipulate the outcome of the scientific inquiry into perchlorate so that they could minimize the government’s cost of cleaning up perchlorate contamination.186 In the same vein, NYPIRG was able to use the GE documents to demonstrate that EPA had largely given in to GE demands in structuring the financial responsibility for cleaning up the Hudson River.187

FOIA also provides incentives for organizations and individuals to turn to the courts to pursue information denied to them by the agencies. Of course, not all FOIA denials lead to litigation. But in some cases litigation is plainly warranted, and the possibility of recovering attorney’s fees and costs plays a crucial role in the calculus over whether to go to court. In NYPIRG, the plaintiff successfully negotiated reasonable attorney’s fees, having “substantially prevailed” in the litigation. And in NRDC, there is little question that, once the case comes to an end, the Government will be willing to settle the fee question or the court will award NRDC reasonable attorney’s fees because of the plaintiffs’ successes in the litigation.

FOIA litigation also proved to be a useful tool to gain insights into the government’s handling of important environmental issues. For instance, in NRDC, DoD claimed that the Air Force is the Department’s lead component on perchlorate and touted the lengths to which the Air Force had gone to inventory the extent of contamination, to study perchlorate’s health effects, and to devise effective remediation programs.188 But the Department’s rhetoric did not match the evidence. Discovery in the case showed that the Air Force’s program-extensive on paper-was mostly hype and little substance. Discovery also showed the close collaboration between DoD and defense contractors in trying to minimize costly perchlorate remediation.189 NRDC would never have been able to gain these insights without litigation.

On the other hand, there is bad news. For one thing, there is a welter of potential procedural disputes that can mire the litigation and derail it altogether. For instance, NRDC waited for most of a year to bring suit out of concern that filing earlier would lead the court to hold the case in abeyance while the agencies searched for and processed responsive records.190 Once the case was filed, the Government sought repeated extensions to respond, delaying matters for nearly a second full year. Then the case was slowed for an additional year as a result of DoD’s plainly strategic failure to search Air Force records. The litigation was delayed again when it became clear that the Air Force’s search was inadequate. Five years after NRDC’s requests-and after four years of litigation, three full rounds of summary judgment briefing, extensive discovery, and countless hours reviewing documents-the case is still pending. In the meantime, questions about perchlorate have been fought and resolved, often in ways that NRDC opposed. So FOIA proved to be a useful but imperfect device to obtain information NRDC needed to participate effectively in the debate over perchlorate.

Even NYPIRG, a case that proceeded rather promptly, took over a year from filing to be resolved, and nearly two years passed between NYPIRG’s FOIA requests and its receipt of the GE records. Thus FOIA lays down an uncertain path for parties who need prompt access to records.

There are also serious substantive problems that limit FOIA’s effectiveness in environmental cases. Perhaps the biggest obstacle is the looming presence of Critical Mass. Although the ruling has been adopted only by the D.C. Circuit, it is followed by every federal agency in making determinations about whether to disclose information that arguably falls within Exemption 4.191 There are two reasons for this. One, the Department of Justice, which oversees the Executive Branch’s implementation of FOIA, takes the view that Critical Mass is controlling as a matter of law, and federal agencies follow its lead.192 And two, unlike many of FOIA’s other exemptions, matters that fall within Exemption 4′s scope are not subject to discretionary release by the government.193 In permitting submitters to sue to enjoin disclosures under the Act (so-called reverse-FOIA cases), the Supreme Court in Chrysler v. Brown194 suggested that Exemption 4 implicates, and may be co-extensive with, the Trade secrets Act, which makes it a crime for a federal employee to knowingly disclose trade secret information in the government’s hands absent legal authorization to do so.195 Since then, lower courts have ruled that the Trade secret Act’s scope is “at least co- extensive with that of Exemption 4.”1% The combination of these rulings sends an unmistakable message to agencies: Disclosure of trade- secret and confidential business information is impermissible, both under FOIA and the Trade secrets Act. For that reason, government employees are especially wary about disclosing information that might fall within Exemption 4, since doing so would violate FOIA and may be considered a crime under the Trade secrets Act.197

There is one final set of concerns NRDC and NYPIRG do not raise. Since 9/11, there has been a growing overlap between environmental information and critical-infrastructure information (CII)198 or other “pseudosecret” information that agencies now withhold either because they are required to (as is the case with CII), or because it serves their interests to invoke security justifications to defend withholdings.’99 CII includes data on vulnerabilities and other vital information related to our nation’s communications, transportation, manufacturing, energy, and other critical sectors. Since the passage of the CII Act as part of the Homeland Security Act of 2002, agencies are required to withhold such information under FOIA.200 Pseudo-secret information201 is information that is unclassified and not technically exempt under FOIA, but nonetheless is thought to be sensitive for security reasons and is designated as “sensitive but unclassified” by agencies that want to withhold it under FOIA or other access-to-information laws.202 These statutes and withholding devices are too new to have been the subject of litigation, but all indications suggest that the Department of Homeland security intends to implement the CII Act to provide sweeping protection for CII.203 Reports on the use of pseudo- classifications to withhold information from the public suggest that resort to this artifice is also widespread.204

B. The OPEN Government Act of 2007

As noted earlier, Congress recently enacted the first major revision to FOIA in a decade. The 2007 amendments make a number of important improvements to the Act.205 To begin with, the amendments overhaul the procedures agencies use to track and process FOIA requests. The amendments first aim to end disputes over when the agency’s time to start processing a FOIA request begins to run by providing that the clock starts on “the date on which the request is first received by the appropriate component of the agency.”206 In cases where the request is sent to the wrong component of the agency, the clock starts to run “not later than ten days after the request is first received by any component of the agency that is designated in the agency’s regulations” to receive FOIA requests.207 To give the agency an added incentive to conclude its search and processing of requests within the statutory time period, the amendments further provide that agencies that fail to comply with the time limits may not assess search fees (and in some cases, duplication fees) on requesters.208

The amendments take two further steps to assist requesters. First, they require each agency to establish a public-liaison office to “assist in the resolution of any disputes between the requester and the agency.”209 The amendments also require agencies to establish a system for assigning any request that will take longer than ten days to process “an individualized tracking number” that will be provided to the requester.210 Agencies also must establish automated Internet or telephone systems to update requesters on the progress (or lack thereof) the agency is making on their requests and give an estimated completion dates.2″ Second, the amendments direct the National Archives and Records Administration to establish an Office of Government Information Services.212 This new office will be charged with government-wide oversight of FOIA, will conduct audits on agency compliance with FOIA, and will offer mediation services as an alternative to litigation to resolve disputes between requesters and agencies.213 In the event that mediation does not resolve the impasse, the office will have the discretion to issue an advisory opinion.214 The amendments also will make it easier for requesters who are forced to go to court to obtain information to recover their attorney’s fees and costs if they prevail. In the aftermath of the Supreme Court’s ruling in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources,215 which rejected application of the “catalyst theory” for fee awards under the Civil Rights Act,216 federal courts in FOIA litigation similarly rejected claims that requesters had prevailed when the litigation prompted disclosure of records but did so without a merits ruling in their favor.217 The amendments seek to reinstate the catalyst theory in FOIA litigation by providing that a FOIA plaintiff has “substantially prevailed”-and thus is eligible for an award of fees and costs-if the plaintiff obtains relief through either “a judicial order, or an enforceable written agreement or consent decree,” or “a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.”218

It is too soon to tell whether these amendments will be implemented diligently by the Executive Branch and, if so, whether they will improve agency performance under FOIA. But they are at least a symbolic step forward. The amendments demonstrate that Congress, if not the Executive Branch, believes that FOIA is not delivering on its promise of transparent government.

C. The Federal Advisory Committee Act

Congress’s action to bolster FOIA should not be taken as evidence of a broader congressional concern over the effectiveness of our nation’s open government laws. Were that the case, Congress might have paid some attention to FOIA’s poor relative, the Federal Advisory Committee Act219 (FACA), which has been seriously undermined by judicial rulings that have narrowed its scope and invited the Executive Branch to evade its requirements.

FACA is an important statute. It was enacted in 1972 because Congress had become convinced that there were no effective controls in place to regulate the process by which the President, the Executive Branch, and Congress were eliciting advice from outsiders.220 Advisory committees had proliferated; they were often dominated by one point of view; there was no way to keep track of the committees and the expenses incurred in supporting them; and they had no sunset provisions, so their life span often outlasted their usefulness.221

On paper, FACA represents a comprehensive solution to these problems. It recognizes an unfettered right of the President and the Executive Branch, as well as Congress, to seek advice from outsiders. But it also imposes a modest set of rules to guide the establishment of advisory committees and provides procedures the committees must observe when advising the government.

The Act’s structure is straightforward. FACA begins by defining the term “advisory committee” in the most expansive terms to include “any committee, board, commission, council, conference, task force, or other similar group, or any subcommittee or other subgroup” which is “established by [Congress through a] statute or reorganization plan,”"established or utilized by the President,” or “established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.”222 The Act then excludes from its coverage any committee meeting these requirements so long as the committee is either “composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government,” or “created by the National Academy of Sciences or the National Academy of Public Administration.”223

The Act next requires any branch of government establishing an advisory committee to follow certain guidelines,224 which include setting a “clearly defined purpose” for the committee,225 requiring that the committee be “fairly balanced,”226 establishing deadlines for the committee’s work,227 assuring that the committee’s recommendations “will not be inappropriately influenced by the appointing authority or by any special interest,”228 and providing adequate support for the committee’s work.229

Finally, FACA requires advisory committees to carry out their work openly. Advisory committees must give advance notice of their meetings in the Federal Register and take other measures to ensure that interested parties are notified of upcoming meetings.230 Interested parties must be permitted to “attend, appear before, or file statements” with the committees.231 All of the committees’ papers, including drafts, studies, transcripts, reports, and working papers, must be made available to the public.232 Detailed minutes of meetings must be kept and made available to the public as well.233

As noted, FACA’s effectiveness has been undermined by court rulings that have narrowed its scope. Two of these rulings-which are doctrinally linked-came in high-profile cases involving advisory committees created to advise the President on controversial policy questions.

The first, Association of American Physicians & Surgeons v. Clinton,234 involved President Clinton’s Task Force on National Health Care Reform. The Task Force was composed wholly of federal employees, and thus the Task Force asserted that it was not a committee covered by FACA.235 But the plaintiffs alleged that the Task Force’s chair, First Lady Hillary Clinton, was not a federal employee, and neither were an unknown number of unpaid, outside advisers who participated actively in meetings of the Task Force and its various working groups.236 These outsiders, the plaintiffs claimed, were de facto members of the committee, and the presence of nonfederal employees on the committee required compliance with FACA.237 The court held that Mrs. Clinton qualified as a full-time government employee under FACA but remanded the case to determine whether the nongovernment consultants were de facto members of the committee or its working groups.238 As the court put it, a de facto member of the committee is one who “regularly attends and fully participates in working group meetings” or in meetings of the Task Force.239 By the time the case was remanded, the Task Force had completed its work and had been disbanded.240 The Government agreed to comply with FACA and open its records to the public.241

The de facto membership rule announced in the case-that FOIA could not be evaded by nominally staffing a committee with government employees but permitting outsiders to participate in committee activities-was shortlived. The next major case involved allegations that the National Energy Policy Development Group, established by President George W. Bush to overhaul the nation’s energy policy, was an advisory committee.242 Although the Group was, as a formal matter, composed wholly of federal employees, the plaintiffs alleged that “non-federal employees, including private lobbyists, regularly attended and fully participated in non-public meetings,” and thus that they were de facto members of the committee, making it subject to FACA.243 Confronting a de facto membership argument, the district court permitted the plaintiffs to take limited discovery of Vice President Cheney and other committee officials to see whether the outsiders’ participation in the committee’s work was sufficiently extensive to render them de facto members.244 The Government petitioned the D.C. Circuit to issue a writ of mandamus or permit an interlocutory appeal to challenge the district court’s discovery order, which the D.C. Circuit denied.245

The Supreme Court reversed.246 Invoking separation-of-powers concerns, the Court held that the D.C. Circuit, on remand, should reassess whether to issue a writ of mandamus barring discovery.247 The Court emphasized that the question for the court of appeals was whether the district court’s discovery ruling “constituted an unwarranted impairment of another branch in the performance of its constitutional duties,” strongly signaling that it expected the court to protect Vice President Cheney and other committee members from probing discovery.248

On remand, the D.C. Circuit, sitting en bane, took its cue from the Court and dismissed the litigation.249 But it did not do so because the limited discovery at issue was intrusive; it left that issue unaddressed. Rather, the court took the opportunity to disassemble the de facto membership test it had established in Association of American Physicians & Surgeons v. Clinton. Instead of focusing on the nature and degree of participation of nonfederal individuals in committee activities, the en bane court announced that outsiders could be seen as de facto members of committees only where they “had a vote” or “had a veto” over the committee’s decisions.250 Under this reading of FACA, outsiders may play an active role in government committeesattending meetings, providing information, advising government officials, and participating in committee deliberations-so long as they do not vote or exercise formal veto authority. Another blow to FACA was delivered earlier in National Anti-hunger Coalition v. Executive Committee of the President’s Private sector Survey of Cost Control(TM) which addressed whether task forces created by an advisory committee to support its work are subject to the strictures of FACA.252 The President’s Survey on Cost Control (the Grace Commission) was tasked with making recommendations to the President on how to make government operate more efficiently.253 To do its work, the Grace Commission organized thirty-six task forces to “gather information, perform studies, and draft reports and recommendations.”254 The recommendations and reports ultimately were submitted to the Executive Committee of the Survey, which was admittedly an advisory committee composed of corporate executives.255 Three of the task forces were constituted to study domestic-feeding programs for low- income persons and to recommend cost-savings steps the government could take.256

A coalition of low-income groups and individuals sued to gain access to the records and reports prepared by these task forces and to challenge the balance of the Executive Committee, pointing out that no public interest representatives or beneficiaries of federal feeding programs had been appointed to the Executive Committee.257 The D.C. Circuit rejected both claims. With respect to the role of the task forces, the court held that absent a showing that the Executive Committee was merely “rubber stamping the task forces’ recommendations,” the task forces were not covered by FACA, and thus their meetings could take place in secret with no public oversight.258 With respect to the “fairly balanced” claim, the court rejected the Government’s separation-of-powers argument that the “fairly balanced” requirement cannot constitutionally be applied to the President, but it nonetheless held that the all-corporate Executive Committee was “fairly balanced” in terms of the Commission’s cost-cutting mission.259 Since then, some judges have questioned whether a “fairly balanced” claim is even justiciable, given that the views that may be relevant to the committee’s work may be “virtually infinite.”260

Courts have also ruled that FACA does not apply in cases where the committee was preexisting and not formed at the government’s prompting. The key case is Public Citizen v. United States Department of Justice.261 There the Court rejected the contention that the American Bar Association’s (ABA) Standing Committee on the Federal Judiciary-which was constituted to render advice to the Justice Department, and ultimately to the President, on candidates for nomination to the federal bench-was subject to FACA.262 The Court was sensitive to the separation-of-powers concerns that were implicated by FACA’s effort to control the manner in which the President and his advisors obtain advice relating to possible judicial nominees.263 To avoid any such entanglement, the Court rejected a literal reading of the Act to find that Congress did not intend for it to apply to committees ‘”not directly established by or for such agencies.’”264 Because the ABA committee long predated FACA, and because it was neither established for or by the Department of Justice, the Court held it was not subject to FACA.265

Following the logic of Public Citizen, the D.C. Circuit extended the rule to apply to an expert panel assembled to advise the Food and Drug Administration (FDA) on food-safety issues where panel members were not selected by the FDA, but by a contractor paid by the FDA to identify foodsafety experts willing to advise the agency.266 The lower court reasoned that the panel had been established by the FDA because the contractor had been hired to assemble the panel to provide advice to the agency.267 Applying the analysis in Public Citizen, the court of appeals reversed because the contractor, not the FDA, selected the panel members and managed the panel’s work.268

As this discussion makes clear, Congress’s effort to ensure comprehensive regulation of advisory committees has been undermined, if not altogether subverted, by a series of court rulings that have narrowed FACA’s scope and given a clear road map to agencies that want to obtain advice from outsiders but avoid public accountability. Agencies now have a wide range of options to get advice (generally from regulated industry) while avoiding the public’s probing eye. Agencies can enter into a contract with an intermediary to create and manage the committee, thereby taking advantage of the Food Chemical News loophole. Agencies can establish committees formally composed wholly of government employees, but nonetheless enlist outsiders to be full and active committee participants, so long as they neither vote nor exercise veto power, thereby using the gap closed in the Association of American Physicians and Surgeons case but reopened in Cheney. Or agencies can follow the approach laid down in Anti-hunger Coalition and simply constitute advisory committees that do little more than delegate their work to task forces that are insulated from FACA’s accountability requirements. Until Congress revisits FACA and plugs these gaping loopholes, FACA will be little more than an empty promise of government oversight of the advisory process.269

III. Three Proposals for Reform

As I have tried to demonstrate, there is a growing gap between the promise of open access made by our federal right-to-know laws and their performance. The question, then, is what can be done to bring performance in line with reasonable expectations? I have no panacea to offer, but I do have three modest proposals for reform.

A. Place an Affirmative Duty on Government to Make Categories of Important Environmental Information Available on the Internet.

The time has come to place an affirmative duty on government to use Internet technology to make environmental information accessible to the public without routinely having to use FOIA’s request-and- wait procedures. There are two overarching reasons why this paradigm shift in informationaccess laws is both necessary and overdue. One is that the technology for creating, storing, and sharing information has undergone a seis




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