The Corner

The EPA’s Conservative Problem, Part II

The EPA has responded, rather misleadingly, to allegations that it discriminates against conservative groups.

Here’s the necessary background, which I reported on a few weeks ago:

The agency has rubber-stamped fee-waiver requests from environmentalist groups seeking information, but it denied similar requests from conservative groups, an extensive examination of EPA correspondence suggests. . . .

Public information about government can be obtained through a Freedom of Information Act request. If a requester plans to use the information to improve public understanding about a policy issue or government operations, rather than putting it to commercial use, Congress has decided that the fees for collecting and transmitting this public information can be waived.

The Competitive Enterprise Institute obtained 1,200 pages of EPA correspondence between January 1, 2012, and April 26, 2013, in circumstances that appear to indicate the process is handled unfairly. A congressional review of these documents showed that environmental groups’ fee-waiver requests were approved 92 percent of the time, while CEI saw 93 percent of its fee-waiver requests denied. Only 8 percent of the total number of FOIA fee waivers granted went to conservative think tanks; their requests were denied 73 percent of the time. (Full disclosure: My employer, the Franklin Center, is one of the conservative groups whose requests were examined.)

Back in May, I asked the EPA to comment on CEI’s statistical breakdown, but a spokeswoman declined, instead offering a blanket statement about fairness and FOIA waiver determinations.

Some members of Congress have taken an interest in this apparent disparate treatment. And the EPA finally gave a broader answer to Politico:

For one thing, EPA says the activist [CEI’s Chris Horner] complaining about the agency’s denial of fee waivers for document requests never actually had to pay any money, regardless of whether it officially waived the costs.

And EPA says it granted the vast majority of waiver requests he filed on behalf of one right-wing group — numbers not included in the statistics that Republican lawmakers and conservative news outlets have been trumpeting for weeks. . . .

The gist of EPA’s response: The conservatives’ numbers tell only part of the story and don’t look at the final outcome on whether groups had to pay fees for their Freedom of Information Act requests.

But that explanation doesn’t do much to refute the fundamental claim that conservative groups were treated differently from groups that were ideologically compatible with the EPA’s left-leaning environmental priorities.

CEI and other groups may have gotten the fee waivers they were entitled to eventually, but only after they forced the EPA’s hand, sometimes even resorting to suing the agency. That’s a time-consuming, intensive process. Meanwhile, progressive and environmental groups get their fee-waiver requests approved from the outset, guaranteeing they get their requests answered promptly.

Chris Horner, a senior fellow at CEI and one of the central players in the controversy, sent me a further response:

EPA’s response to Politico indicates it either is ignorant of the law it so woefully implements, or simply seeks to mislead. Citing as somehow dispositive that, in the end it doesn’t do what the law plainly prohibits it from doing — extract fees from non-profits groups that broadly disseminate public information — deliberately avoids confronting what it does do, which is use the fee waiver process to delay and deny access to public records for groups it deems problematic.

Jillian Kay Melchior — Jillian Kay Melchior writes for National Review as a Thomas L. Rhodes Fellow for the Franklin Center. She is also a senior fellow at the Independent Women’s Forum.

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