Lack of transparency may violate federal record-keeping law
‘It is essential to the functioning of our democracy that our government does its business in the open’
Washington, DC – Six Senators are calling out Environmental Protection Agency (EPA) Administrator Scott Pruitt for running the Agency under a veil of secrecy, possibly violating federal record-keeping laws. In a letter to Pruitt penned today, Senators Kamala Harris (D-CA), Sheldon Whitehouse (D-RI), Jeff Merkley (D-OR), Cory Booker (D-NJ), Kirsten Gillibrand (D-NY), and Edward J. Markey (D-MA) raise questions about management policies that appear tailor-made to hide Pruitt’s involvement with EPA operations and decision-making. They note Pruitt’s troubling record, dating to his time as Oklahoma Attorney General, of concealing cozy political and financial connections with companies the EPA regulates. They close by calling on Pruitt to take immediate action to restore transparency to the EPA and report back to the Senate on his progress.
“At your direction, the political leadership of the U.S. Environmental Protection Agency is taking deliberate steps to thwart transparency,” the Senators write. “It is essential to the functioning of our democracy that our government does its business in the open. Yet according to recent press reports, you are taking measures to conceal your official actions.”
The Senators point to a range of Pruitt’s actions and policies that “thwart transparency.” Pruitt has ended previous administrators’ practice of releasing senior officials’ public calendars. He has forbidden staff from taking notes and carrying cell phones in meetings. He has avoided using official email and telephone lines. Under Pruitt’s watch, the EPA has been sued for failing to respond to Freedom of Information Act requests—a pattern of delaying opens records responses similar to what earned then-Attorney General Pruitt a rebuke from an Oklahoma judge. The Senators ask Pruitt to provide information to determine whether EPA under his direction is violating the Federal Records Act, which requires that “[t]he head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency.”
Full text of the letter is below. A PDF copy is available here.
August 31, 2017
The Honorable E. Scott Pruitt
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460
Dear Administrator Pruitt,
We write today to express our serious concern that, at your direction, the political leadership of the U.S. Environmental Protection Agency (EPA) is taking deliberate steps to thwart transparency. It is essential to the functioning of our democracy that our government does its business in the open. Yet according to recent press reports, you are taking measures to conceal your official actions.
The Constitution gives Congress the authority to oversee the actions of the Executive Branch. As members of the Senate Committee on Environment and Public Works (EPW), we have a responsibility to conduct oversight to ensure that the EPA is following the law. On August 11, 2017, a New York Times report detailed the following disturbing allegations:[]
These allegations suggest that you are violating the Federal Records Act, 44 U.S.C. § 3101 et seq. This law directs that “[t]he head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency.” Id. § 3101. If you are taking deliberate steps to avoid making records that federal law requires you to preserve, that would contravene your legal duty.
These allegations are especially disturbing given your practices as Oklahoma Attorney General, which included appropriating and sending industry documents[] to the EPA on your official letterhead; evading the disclosure of records under the Oklahoma Open Records Act; refusing to disclose your extensive political and financial ties with companies regulated by the EPA (many via “dark money” organizations); and the Oklahoma Bar Association’s investigation into the inconstancies in your congressional testimony.
Together, your past practices as Oklahoma Attorney General and your current practices as EPA Administrator suggest a willing disregard for your legal obligations. So that the EPW Committee may perform its constitutional oversight duties, we request that no later than September 22, 2017 you take the following steps to promote transparency, and report to the EPW Committee about your compliance:
1) Resume posting public calendars for senior EPA officials.
2) Provide notice to all EPA employees that they may document all EPA actions, including meetings and conversations with you personally, consistent with legal protections for confidential business information, personally identifiable information, and national security information.
3) Direct a member of your staff to maintain, and provide to the public via appropriate request, a log of each of your telephone calls.
4) Provide direction to all EPA political appointees regarding the proper use of text messages, and provide to the EPW Committee a signed form from each such appointee that he or she understands and is complying with EPA’s Records Management Policy.
5) Inform all EPA political appointees and senior officials that they should document in writing verbal conversations that result in significant EPA decisions or directions and conversations during which they instruct others to follow those decisions or directives.
6) Describe the substance of any verbal directive that EPA staff produce a new study that eliminated the wetlands benefit in the cost-benefit analysis for the Waters of the United States Rule, and identify who devised it and when, and each person who communicated it.
7) Disclose whether you or any political appointees at EPA have used non-official electronic messaging accounts, including email addresses, personal phones, and any encrypted messaging applications (e.g., Confide, Signal, Whisper) to send or receive messages relevant to official business. To the extent to which this is occurring, please confirm that complete copies of those records have been forwarded to corresponding official accounts within 20 days after the creation or transmission of the record, as required by the Presidential and Federal Records Act Amendments of 2014, and that these records are being retained and searched for documents responsive to FOIA requests.
8) Explain all steps that you are taking to ensure you and all EPA political appointees are complying with the Presidential and Federal Records Act Amendments of 2014.
9) Detail the number of FOIA requests that have been submitted to EPA generally and pertaining to your office specifically; the number of each EPA has answered; and the average length it takes EPA to complete both types of requests. As several EPW members requested in March to ensure the EPA is responding to FOIA requests in a transparent and timely manner, please provide the Committee with a list of open FOIA requests submitted to EPA (and the date on which each was submitted) at the end of each month.
10) As requested of the Designated Agency Ethics Official in March,
11) Disclose the members of the EPA transition team.
12) Clear the backlog of congressional inquiries that EPA has yet to respond to with complete and substantive responses.
The EPW Committee expects, and federal law requires, that you respond to the Committee completely and accurately. We look forward to your response and understanding how you will return transparency to the EPA as required by law and for the benefit of the American public.
[] Coral Davenport and Eric Lipton, “Scott Pruitt Is Carrying Out His E.P.A. Agenda in Secret, Critics Say,” The New York Times (August 11, 2017) (online at https://www.nytimes.com/2017/08/11/us/politics/scott-pruitt-epa.html).
[] “Attorney General Pruitt Leads Multi-State Lawsuit Demanding Transparency in EPA’s Sweetheart Settlement,” Oklahoma Office of the Attorney General (July 16, 2013) (online at https://www.ok.gov/triton/modules/newsroom/newsroom_article.php?id=258&article_id=13146).
[] Eric Lipton, “Energy Firms in Secretive Alliance with Attorneys General,” The New York Times (December 6, 2014) (online athttps://www.nytimes.com/2014/12/07/us/politics/energy-firms-in-secretive-alliance-with-attorneys-general.html).