The EPA Changed its FOIA Process

The EPA published its final rule to change its regulations for complying with the Freedom of Information Act (FOIA). The new rules will take effect on July 26, 2019. The EPA determined that these changes were exempt from the notice and comment requirement of the Administrative Procedure Act (APA) because some fall under the procedural exception to the APA and others fall under the good cause exception. The new rules will be located in 40 C.F.R. part 2.  The EPA claims that it is making the changes in response to legislative amendments to FOIA passed in 2007, 2009, and 2016; as well as to address realignment at the agency.

One of the changes is to make the National FOIA Office (NFO) in the Office of the General Counsel (OGC) the one point for all requests. Submissions may be made through the FOIA website , an electronic government submission site as outlined in 5 U.S.C. 552(m), U.S. mail addressed to National FOIA Office, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW (2310A), Washington, DC 20460, or overnight delivery service to National FOIA Office, U.S. Environmental Protection Agency, 1200 Pennsylvania NW, Room 5315, Washington, DC 20460. The statutory time for response only begins when NFO receives the submission through one of the four approved methods. The EPA will no longer accept requests sent by fax or email. Additionally, requests may no longer be sent to the regional offices of the agency. Requests submitted incorrectly will not be reviewed and will not trigger response time tolling. The agency is also adjusting the tolling of responses. The agency will have 20 working days to respond to requests, but the time can be tolled once during those 20 days if the agency needs clarification from the requester, and can be tolled multiple times to address issues related to fees.  Requests must be received by 5:00 PM ET to be considered received on that day, otherwise it will be considered received on the next working day.

The EPA is repealing the list of FOIA exemptions provided in 40 C.F.R. 2.105, since it is “unnecessary and redundant of the statute.” The issue of search fees also needed to be amended due to changes in the law. The EPA will not charge search fees if the agency fails to meet the period to respond to a request except in unusual circumstances (defined by statute), timely written notice is provided to the requester, more than 5000 pages are needed to respond to the request, or agency staff have made at least 3 good faith attempts to discuss limiting the scope of the request with the requester.

The final determination will now need to include information about the right to seek assistance from the FOIA Public Liaison, and if the determination is adverse to the requester, the role of the Office of Government Information Services (OGIS) in providing dispute resolution. The office processing the request must also provide information on the role of OGIS if a request for extension exceeds 10 days. A requester has 90 days to file an appeal and the determination must advise of this right. This 90 days is an extension of the previous appeal period of 30 days. Administrative appeals will also only be accepted through particular methods, namely through the FOIA management system or by U.S. mail to the NFO. The rule also clarifies that the Administrator, Deputy Administrator, all administrator level positions, and regional administrator positions may respond to FOIA requests.

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