Scott Pruitt's EPA Claims It Can't Timely Comply With FOIA Requests, Smart Lawyers Know That's A Lie

Legal technology allows agencies to review and produce documents quickly and efficiently. So why is the EPA so bad at this?

(Photo by Pete Marovich/Getty Images)

As the Environmental Protection Agency continues to dismantle itself from the inside, environmentalists are curious to see the agency’s internal documents, suspicious that they’ll find a treasure trove of corrupt favor peddling and arbitrary and capricious policymaking. Add to the expected queries over the administration’s aggressive denial of basic climate science and its impending decision to drill for oil in Teddy Roosevelt’s head the fact that Scott Pruitt himself seems to have his hand welded to the inside of the cookie jar — living in a lobbyist’s condo for $50/night and drawing up a list of vacation spots and asking his staff to find him excuses to travel there on the taxpayers’ dime — and it’s obvious why the agency faces a deluge of FOIA requests.

But what’s not obvious — unless you have a very cynical heart — is why the EPA is so terrible at responding to these requests. As of March, Undark reported that “of the 1,181 submissions made last year, just 17 percent have been completed.” For an organization that isn’t exactly handling the nuclear codes, this is a shameful lack of progress. An EPA spokeswoman has said that the agency is suffering from a backlog of requests dating back to prior administrations, which only makes the EPA’s failure more embarrassing.

Earthjustice, representing the Sierra Club, filed a lawsuit calling out the excessive delays and seeking an order demanding that the EPA comply with its FOIA requests forthwith.

But does the EPA have a point? Like any sizeable institution, the EPA doesn’t just sit on a handful of contracts and memos anymore. Today, the EPA has mounds of emails, text message, employee social media records, and more than need to be parsed before replying to a FOIA request. The world’s just gotten more complicated than it was back when FOIA deadlines were first imagined, the EPA might say.

This is, of course, bollocks and any good lawyer knows it. While the EPA’s conception of science may date back to the era of bloodletting, the legal world has marched (slowly, but surely) into the 21st century. Any attorney worth their salt knows there are tools that make the collection and review of voluminous data — in particular government data — a snap.

One need look no further than Logikcull, a company that showed off its chops when it comes to scouring government data last year when it set up the declassified JFK files for free review. The company already works with four of the 12 biggest city litigation departments and is used by dozens of organizations at the local, state and federal levels to streamline document requests not unlike those at issue here. Andy Wilson, Logikcull’s CEO, explained how Logikcull’s software could automate much of the work required to get responsive documents out the door and into the hands of the people who made the initial lawful request.

Sponsored

We provide cloud-based software that automates much of the work associated with processing, searching, reviewing, redacting and sharing out information. You just drag and drop the files into your browser and Logikcull makes sense of them. We call it Instant Discovery.

And, of course, the party receiving the data dump from the EPA could also use Logikcull to process the data.

But focusing again on the EPA because, after all, they’re the ones holding out on the requesters, the biggest advantage legal technology can afford an agency responding to over a thousand requests is a means to execute repetitive requests without reinventing the wheel. It’s highly doubtful that every environmental group is seeking wholly unique information in each FOIA request. The email explaining that they’ve decided to frack Old Faithful probably responds to dozens of outstanding FOIA requests. If the EPA claims — as it appears to be claiming — that every FOIA requires a fresh review of the universe of agency data, they’re either lying or exposing themselves as dangerously obtuse. Or both.

Wilson explained:

A big challenge for government organizations is just having a repeatable, documentable process in place to respond to records requests so you can speak to the exact steps you took to make a disclosure.

Sponsored

By uploading the universe of documents into one, consistent service, running the searches required to pull the necessary documents — and even to carry over the necessary information about privilege and confidentiality learned from prior reviews — becomes instantaneous. There’s just no argument that responding to straightforward requests is unduly burdensome. Or trying to sneak a $79K bill on honest citizens to dissaude people from seeking government transparency in the first place.

Thankfully, judges and magistrates are starting to realize that. While government agencies get some slack because they can’t always procure new technology without a lengthy, conflict-wraught process, the savvy of the judiciary is starting to catch up with these excuses. Not that every entity in every dispute has the means to access every solution out there, but the EPA certainly has those resources.

Of course, if you believe Scott Pruitt and his top aides are intentionally slowing down the review of these documents to shield him from scrutiny then there’s not much tech solutions can do — until a judge finally clamps down some sanctions for willfully obstructing the process.

And that day may be coming soon.

EPA clamps down on document requests linked to Pruitt [Politico]

Earlier: Legal Technology Helps Sleuths Scour JFK Documents For Free


HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

CRM Banner