UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

OCT 2 3 2019
OFFICE OF CONGRESSIONAL
AND INTERGOVERNMENTAL RELATIONS

The Honorable Katie Porter
U.S. House of Representatives
Washington. D.C. 20515
Dear Representative Porter,
On behalf of the U.S. Environmental Protection Agency, I am writing in response to your letter
dated July 9, 2019 to Administrator Andrew Wheeler, in which you sought information related to
the EPA· s recent regulatory updates that bring the EPA into compliance with the requirements of
the Freedom of Information Act (FOIA).
On June 26.2019, the EPA published in the Federal Register the Agency's "Freedom of
Information Act Regulations Update." 84 Feel. Reg. 30028. The Agency updated its FOIA
regulations to bring the EPA into compliance with current FOIA statutory requirements at the
direction of Congress. The EPA had no discretion for the changes mandated by the amendments
to FOlA in 2007, 2009, and 2016 passed by Congress. Congress specifically mandated that we
update our regulations to com,� into compliance with the statutory changes. Most agencies and
departments met this obligation by 2016-for whatever reason the Obama Administration EPA
did not. The Agency's regulations now final] y comply with amendments that go back more than
a decade.
In 2018. the U.S. Government Accountability Office issued a report urging agencies to update
their FOIA regulations to bring them into c0mpliancc with a series of FOIA amendments enacted
over the last several years. The Agency's u;xlated regulations are now in compliance with these
amendments. Despite inaccurate claims by the media and others that the updated regulations
increase the ability of political appointees to claim that portions of a document are not responsive
to a FOIA request or are exempt from disclosure, political appointees have no additional or
expanded authority under the ;1pdated regulations. The updated regulations do not and cannot
change the statute Congress passed, nor do they expand the EPA's authority to determine
responsive records. The EPA 's updated regulation does not authorize the Agency to withhold a
portion of a record as not responsive in violation offr1e statute or applicable case law.
The only discretionary chang,�, not mandated by Congressional amendments, in the updated
regulations was adopted consistent with the recommendations from the FOIA Federal Advisory
Committee-an advisory committee convened by the National Archives, independent of any
EPA authority, which develops consensus recomrner.dations for improving FOIA administration

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 and proactive disclosures. In 2018, the FOIA Federal Advisory Committee, recommended that
federal departments and agencies ··centralize FOIA processing where appropriate." Therefore, at
the specific direction of the FOIA Federal Advisory Committee. the Agency's recent updates
provided for the centralization of the submission and receipt of all requests. The EPA is not
centralizing the processing and response to ::ill requests, merely the submission and receipt of all
requests-the decision-making authority for FOIA responses remains with the offices that are
document custodians. Regional and program offices will still conduct search. collection, review.
and record releases once the ationals fOIA Office has assigned a request to a Region or
program office.
When the Agency"s career FO]A attorneys provided Congress with bipartisan briefings on the
updated regulations. the only significant concern mentioned was the potential for confusion
during the centralization transition. In response to those concerns, the Agency voluntarily
instituted a glidepath towards implementing centralized intake by instructing Regions that
receive improperly submitted mailed or emailed requests directly from requesters to continue
accepting those requests until ,\ugust 23, 2019. For requests improperly submitted after August
23.2019. the Agency also instructed Regions to inform requesters of the proper methods for
submitting FOIA requests undt.:r the updated FOIA regulation.
The EPA strongly believes that the actions the Agency took to update the regulations were a
direct response to comply with cuJTent FOIA statutory requirements and improve the Agency's
FOIA response at the direction or Congress and independent consensus recommendations.
If the you have questions regarding speci tic changes to the Agency's FOIA regulations or
program beyond the infom1ation that is already public. the Agency is willing to work with your
staff on how best to accommodate those interests. If you have further questions, you may contact
f
me. or your staf may contact Kristien Knapp in the EPA 's Office of Congressional and
Intergovernmental Relations at Knapp.Kristien@epa.gov or (202) 564-3277.
Sincerely.