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EPA, Freedom of Information, and Good Faith

Yes, the recent ruling in Competitive Enterprise Institute v. Environmental Protection Agency (D.D.C. No. 12-1617) is good news for the EPA, but the lawsuit still produced some pretty valuable results for both CEI and the public at large.

This case involved then-Administrator Lisa Jackson’s use of her "Richard Windsor” email alias. As the court noted, the fact that administrator Jackson and other EPA officials used alternative email addresses “raised questions about the agency's compliance with federal record-keeping laws as well as the completeness of its responses to certain FOIA requests.” In the court’s words, this was a matter of “appropriate… concern,” and not just for us.

The court ruling has some entertaining references to CEI’s so-called “conspiracy theory.” We didn’t use that phrase in our pleadings, but we did argue that EPA’s filings and declarations shouldn’t get the usually automatic presumption of good faith. After all, as recently as last August, another court found the agency had handled a Landmark Legal Foundation FOIA request in “bad faith,” and six months before that, EPA’s Region 8 Administrator resigned after having apparently misrepresented his use of a private email account for official business. In short, we believe the court erred in how it applied the good faith presumption, because we weren’t exactly suing Snow White here.

Our FOIA request to EPA on this issue produced more than 10,000 records in response, all of which were given to CEI after the lawsuit was filed. The judge also ruled that EPA must disclose the White House email address used by top advisor Carol Browner to communicate with EPA. (Ms. Browner, according to The New York Times, was a key partner in the “we put nothing in writing, ever” strategy used by top White House and California environmental officials several years ago. Not that we’re calling it a conspiracy, mind you.)

Ms. Browner’s White House email account is probably inactive now, so we’ll have to find another way to send her our best wishes.

We had zero documents before filing this case. We now have more than 10,000, and of those, more than 5,000 were produced in full. We also know quite a bit more about the continued use of personal email accounts by agency officials than we did before.

The ruling on the partial and full withholdings wasn’t all that kind to us, but we’ll survive. And, thankfully, so will the documents we received.