Despite FOIA, EPA Press Policy Remains a Puzzle Palace

May 6, 2015

In response to the WatchDog's request for the U.S. Environmental Protection Agency's press policy, EPA seems to be saying that it doesn't have one. Or that paradoxically EPA staff can talk to reporters but are forbidden to talk to reporters. Or that EPA does not respond to requests for information.

The WatchDog finally got a partial response to its June 10, 2014, Freedom of Information Act request for EPA policies on news media access to EPA employees on April 29, 2015. But nothing was revealed. EPA offered two documents, one of which was 32 years old and both of which were already publicly available. The upshot seems to be that EPA has no agency-wide policy governing whether and when all employees can talk to news media, or that it has one but does not intend to disclose it.

Which case is true is not clear. That's because EPA violated the federal law (FOIA) requiring it to respond to Freedom of Information Act requests. The WatchDog in 2014 had submitted TWO different FOIA requests (one to the press office and one to the Administrator's Office). EPA simply failed to respond to the latter, the broader of the two, missing two statutory response deadlines.

The two documents offered as responsive by EPA were (1) the famous May 19, 1983, "Fishbowl Memo," by then-Administrator William D. Ruckelshaus, and (2) the most recent version of EPA's Scientific Integrity Policy.

Ruckelshaus issued the Fishbowl Memo when he returned to EPA in 1983 for his second stint as Administrator, on a mission to rescue an agency whose integrity had been badly damaged by a regulatory corruption scandal under Reagan-appointed Administrator Ann Gorsuch Burford. His transparency pledge that the agency would be operated as if "in a fishbowl" was key to restoring public confidence.

A similar loss of public confidence in federal science and regulatory agencies happened under the presidency of George W. Bush, and after entering office, President Obama in March 2009 ordered many federal agencies to set Scientific Integrity Policies. EPA's current policy grew out of this process.

While the Ruckelshaus Fishbowl Memo did not specifically address agency contacts with the news media, it did try to address all external contacts. He repeated his pledge to the Senate: "We will attempt to communicate with everyone from the environmentalists to those we regulate and we will do so as openly as possible." Subsequent Administrators, notably Lisa P. Jackson under Obama, have cited the memo in their own pledges of openness.

EPA finalized its Scientific Integrity Policy in February 2012. While the policy was still in draft form, the Society of Environmental Journalists had urged EPA to end its policy of requiring scientists to get press office permission to talk to journalists and requiring public information officers to chaperone interviews. A fuller account of SEJ's position is here.

But while the final policy gave lip service to openness, it nonetheless codified the requirements for press-office permissions and minders for interviews. It applied only to agency scientists and the managers and political appointees who oversee them.

It included general statements like: "At the EPA, promoting a culture of scientific integrity is closely linked to transparency. The Agency remains committed to transparency in its interactions with all members of the public." The policy seeks to ensure that "scientific findings are generated and disseminated in a timely and transparent manner." That might shock the many SEJ members who have not gotten press office permission to interview a scientist until a week after their deadline had passed and their stories were filed.

The Scientific Integrity Policy does seem to acknowledge the First Amendment free speech rights of employees to "freely exercise their right to express their personal views provided they specify that they are not speaking on behalf of, or as a representative of, the Agency but rather in their private capacity."

But it also includes vague language that could be used to justify press office approval of official interviews. It authorizes the press office to ignore a reporter's request to interview a specific scientist and to choose the interviewee to suit the agency's needs. It says: "Agency public affairs staff, with input from program managers, will designate knowledgeable and articulate spokespersons from Regional, Program, or HQ offices to coordinate with EPA scientists and managers for the purpose of ensuring that Agency research is clearly, accurately, and accessibly presented, in a timely manner ...."

The Scientific Integrity Policy also explicitly requires minders. It says: "The public affairs staff from Regional, Program or HQ offices should attend interviews with members of the media, when possible, to ensure that the Agency is being fully responsive to media questions ...." Many SEJ member-journalists, however, often feel that the effect of minders is to intimidate interviewees and keep them from straying beyond the party line.

The fact that only already-available documents were offered in response to the first part of the FOIA request might imply that either no other documents (such as in-house e-mail directives) were searched, or that they were searched and no press-policy directives were found.

The total lack of response to the WatchDog's FOIA request to the Administrator's office — despite legal deadlines for response to the original request and to the WatchDog's administrative appeal — could imply a less-than-zealous commitment to openness on EPA's part. It makes it impossible to rule out that more press-policy directives exist but have not been disclosed.

Sources within EPA — who decline to be named because they fear retribution — say they have seen other directives, and the WatchDog will continue to pursue these through FOIA and other means.