Environmental Information and the Freedom of Information Act

• Author: Sarah Lamdan
• Pages: 109-139

109

Chapter 5: Environmental

Informationand the

Freedomof Information Act

Law in Action

Sandra Cart, an investigative journalist for the Shawnee Gazette got a call from

a Shawne e resident complaining about a bad smell coming from the Chicka dee

River, a waterway r unning through the east side of town . is was one of sev-

eral complaints Cart had r eceived involving odors coming from the river, and

she suspecte d that Patterson’s Poultr y Plant, situated on the waterway, mig ht be

the source. She asked a biologist from Shawn ee University to investigate and se v-

eral tests were conducted. e tests reveal ed alarmingly high amounts of poultry

processing waste, in cluding fecal matter, in the wa ter. Cart located the Patte rson

Plant permits online, and wonder ed whether the plant had received any oth er

complaints or citations or been subject to investigations r ecently that coul d shed

light on the residents’ complaints or revea l a deeper public hea lth issue. Cart

decided to conta ct the U.S. Environmental Protecti on Agency and the state envi-

ronmental protection agenc y to see whether she could obtain more information

about Patterson’s plant and its pract ices.1

I. What Is the Freedom of Information Act?

e Freedom of Information Act (FOI A)2 is the crown jewel of federal

transparency laws, providing the public with access to a myriad of federal

agency records. FOIA is an environmental researcher’s best tool for access-

ing otherw ise nonpublic government documents. Environmental advo-

cacy groups and nonprot organi zations, journalists, scientists, lawyers,

and private concern groups often use it to obta in government information

related to environmental issues. e issues involved can be large and broad

such as those related to climate change or multistate pipeline projects,

1. Annie Ropeik, Locals Dismayed as Allen Harim Prepares to Double Chicken Capacity in Harbeson,

D P M, Feb. 22, 2016.

2. Freedom of Information Act of 1966, Pub. L. No. 89-487, 80 Stat. 250 (codied at 5 U.S.C. §552

(2014)).

110 Environmental Information: Research, Access & Environmental Decisionmaking

or issues far more local and isolated like water conta mination in a single

Marine Corps base.3

But for researchers, is FOIA really a magical law that can unlock every

kind of environmental information? On paper, it seems like the ideal tool for

government information retrieval, with exible terms and broad permission

to access government records. In practice, however, the short answer is that

FOIA is not without its access issues and obstacles.

Notably, FOIA can be utilized by any “person,” including U.S. citizens,

foreign nationals, organizations, associations, and universities.4 Access under

FOIA is provided in two ways:

1. Proactively disclosing agency records including nal agency opinions,

policy statements, and certain sta manuals that aect the public.5

2. Enabling the public to request agency records that the agency does not

voluntarily provide to the public through proactive disclosure.6

Administrative agencies under the executive branch fulll the proactive

disclosure requirements of the law by creating publicly accessible reading

rooms, available both in print and online through agency website portals and

by providing online methods for the public to le FOIA requests.7 Although

agencies do not implement online FOIA policies uniformly, as technical

capabilities expand, so do FOIA disclosure venues. Federal agencies continue

3. James LaPorta, Veterans Group to Seek Information on Contaminated Water at Camp Lejeune, JDN.

, Dec. 9, 2015, http://www.jdnews.com/article/20151209/NEWS/151209146.

4. e denition of “person” comes from the Administrative Procedure Act, 5 U.S.C. §551(2) (2014),

Administrative Procedure Act of 1946, Pub. L. No. 79-404, 60 Stat. 237 (codied at 5 U.S.C. §§551-

559 (2014)). According to the U.S. Department of Justice (DOJ):

Under existing law, foreign nationals have the same rights of access under the Freedom of

Information Act as do United States citizens. e only point of dierence in this regard is

that when an agency advises a foreign national requester of his right to review in federal dis-

trict court, he need not be advised that he can bring suit in a judicial district of his residency

(unless he has been lawfully admitted for permanent residence). By contrast, the Privacy

Act of 1974 limits its access rights to United States citizens and aliens lawfully admitted for

permanent residence.

U.S. DOJ, FOIA Update: FOIA Counselor: Questions & Answers, https://www.justice.gov/oip/blog/

foia-update-foia-counselor-questions-answers-25 (last visited Dec. 2, 2016).

5. 5 U.S.C. §552(a)(2).

6. Id. §552(a)(3).

7. See infra note 15 (discussing how the E-FOIA Amendments of 1996 requires agencies to make

proactively disclosed records created after Nov. 1, 1996 available by “electronic means.” 5 U.S.C.

§552(a)(2). Disclosing information to satisfy §552(a)(2) of FOIA is commonly done in spaces (either

in person or online) called “reading rooms” (online reading rooms are often called “electronic reading

rooms”). U.S. DOJ, FOIA R R, FOIA G (2004), https://www.justice.gov/oip/foia-

guide-2004-edition-foia-reading-rooms (last visited Dec. 2, 2016). e term of art “reading room”

will be used throughout this chapter to dierentiate information disclosed pursuant to FOIA from

general online information that agencies make available on their websites.