Tuesday, February 19, 2013

EPA business: top secret, double-o, for their eyes only business!

Near the end of 2012, a mini-scandal of sorts enveloped the head of the Environmental Protection Agency, Lisa Perez Jackson. The basis of the scandal was simple: Republican lawmakers accused Jackson--and other EPA employees--of conducting official business via secret, non-agency e-mail accounts in an effort to avoid public scrutiny of their activities and decisions:
Oversight Chairman Darrell Issa complained in July that for some officials, “Gmail or Hotmail was a convenient way to be out of the limelight, if you will, or accountability.” But another former DOE official, Jonathan Silver, said it was simply a matter of convenience — that when working outside the office, his government-issued BlackBerry was “so cumbersome that it’s virtually impossible to work with documents and long-form pieces.”
The excuse from the DOE official above really doesn't work, as evidence came to light that showed Jackson was operating a fully active secret account under a pseudonym--"Richard Windsor"--on multiple computers, in the office and out of it. The CEI (Competitive Enterprise Institute) filed a lawsuit to have the contents of the e-mail exchanges on this account and others made public, in accordance with the FOIA (Freedom of Information Act). The EPA later agreed to release all of the data, beginning on January 14th of this year. Jackson resigned at the end of last year, supposedly to look for a new challenge. Sure, that's the reason.

Last week, the EPA released its second batch of e-mails--some 3,000 of them--in accordance with the agreement approved in court. But guess what? There's nothing, or almost nothing, there. As the Washington Free Beacon reports:
EPA officials heavily redacted Friday’s release, omitting all but the most mundane communications. Meeting schedules, discussions of media coverage, and nearly all other content were redacted.
Wait, come again? "Redacted"? Were there nuclear launch codes in these e-mails? Locations of top-secret government installations? Perhaps the CIA's NOC List? Perhaps we need to get the IMF team in on this. Where is Ethan Hunt when you need him?

The basis for the redaction, as the above piece notes, is a provision of the FOIA that provides exemptions for certain information. The nine exemptions:

  1. Those documents properly classified as secret in the interest of national defense or foreign policy; 
  2.  Related solely to internal personnel rules and practices; 
  3.  Specifically exempted by other statutes; 
  4.  A trade secret or privileged or confidential commercial or financial information obtained from a person; 
  5.  A privileged inter-agency or intra-agency memorandum or letter; 
  6.  A personnel, medical, or similar file the release of which would constitute a clearly unwarranted invasion of personal privacy;  
  7. Compiled for law enforcement purposes, the release of which a) could reasonably be expected to interfere with law enforcement proceedings, b) would deprive a person of a right to a fair trial or an impartial adjudication, c) could reasonably be expected to constitute an unwarranted invasion of personal privacy, d) could reasonably be expected to disclose the identity of a confidential source, e) would disclose techniques, procedures, or guidelines for investigations or prosecutions, or f) could reasonably be expected to endanger an individual's life or physical safety; 
  8.  Contained in or related to examination, operating, or condition reports about financial institutions that the SEC regulates or supervises; or 
  9.  And those documents containing exempt information about gas or oil wells.
These exemptions make sense, by and large. But which ones are being relied on for this massive redaction of material in these secret e-mails? Apparently, it is exemption number five, also known as the "deliberative process exemption." The details and requirements for its invocation:
The most commonly invoked privilege incorporated within Exemption 5 is the deliberative process privilege, the general purpose of which is to "prevent injury to the quality of agency decisions." (64) Specifically, three policy purposes consistently have been held to constitute the bases for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's action. (65)

Logically flowing from the foregoing policy considerations is the privilege's protection of the "decision making processes of government agencies." (66) In concept, the privilege protects not merely documents, but also the integrity of the deliberative process itself where the exposure of that process would result in harm. (67)

Indeed, in a major en banc decision, the Court of Appeals for the District of Columbia Circuit emphasized that even the mere status of an agency decision within an agency decisionmaking process may be protectible if the release of that information would have the effect of prematurely disclosing "the recommended outcome of the consultative process . . . as well as the source of any decision." (68) This is particularly important to agencies involved in a regulatory process that specifically mandates public involvement in the decision process once the agency's deliberations are complete. (69) Moreover, the predecisional character of a document is not altered by the fact that an agency has subsequently made a final decision (70) or even has decided to not make a final decision. (71) Nor is it altered by the passage of time in general. (72)

Traditionally, the courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked. (73) First, the communication must be predecisional, i.e., "antecedent to the adoption of an agency policy." (74) Second, the communication must be deliberative, i.e., "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." (75) The burden is upon the agency to show that the information in question satisfies both requirements. (76)
It's a very loose standard, no doubt. But I think the EPA has a serious problem here: the information in these e-mails was improperly exchanged in a non-approved manner, i.e. through a non-agency e-mail server. There is no stipulation in the laws governing the EPA to allow such an exchange and the information is therefore by definition not subject to the protections of the FOIA exemptions! I have to assume the CEI will soon file another lawsuit requesting that the redacted material be un-redacted. And I think they will win. Of course, that takes time. And money. And effort. Therein lies the real purpose of the redaction: delay, delay, delay.

The "most transparent Administration in history"...the beat goes on.

Cheers, all.


  1. Six out of seven dwarfs are NOT Happy.
    Nice work in your essay. I think you might enjoy this:


    Open Source Concept, as applied to people, and eventually, government.

  2. Thanks for that link, Roy. I like Ted Talks. :)