Information Access-Surveying the Current Legal Landscape of Federal Right-to-Know Laws

• Date: 01 August 2009

8-2009 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 39 ELR 10773

A R T I C L E

Information Access—Surveying

the Current Legal Landscape of

Federal Right-to-Know Laws

by David C. Vladeck

David C. Vladeck is a Professor of Law at Georgetown University Law Center, Director of the Center on Health

Regulation and Governance of the O’Neill Institute for National and Global Health, and Co-Director of the

Institute for Public Representation. He is also a Scholar with the Center for Progressive Reform.

In this new age of environmental law, scholars, advocates,

policy makers, journalists, a nd other interested members

of the public can gain access to and harness information

about our environment through federal right-to-know laws,

including the Freedom of Information Act (FOIA).1 e

question is whether these statutes ensure that environmental

information is made available to the public in a timely and

dependable way.

In theory, the answer is yes. ese statutes appear to pro-

vide a comprehensive right of access to information gener-

ated by the fed eral government or acquired by the federal

government from private parties and state and local govern-

ments. In practice, however, this net of government-infor-

mation statutes provides what is at best a piecemeal and not

entirely satisfactory pathway to needed environmental infor-

mation and is at worst the illusion of a right of access where

none exists. ere are many reasons why the reality does not

match the expectations.

First, FOIA—by far the most importa nt access tool—is

a requester-driven statute. e government’s responsibility

under FOIA is to respond to requests for information, not

to initiate the publication or dissemination of information.

is is FOIA’s Achilles’ heel. e process of draf ting and

submitting FOIA requests and then wa iting for the agency’s

response is a breeding ground for delay and cynicism over the

Act’s ecacy.

Congress sought to ne-tune FOIA in 1996 when it

enacted the Electronic FOIA Amendments (EFOIA)

to place armat ive obligations on agencie s to compile

information that is of general interest to the public and

1. 5 U.S.C. §552. FOIA was rst enacted in 1966, and has been amended in

1974, 1976, 1986, 1996, 2002, and 2007.

to ma ke it available on the Internet.2 But agencies have by-

and-large failed to comply with EFOIA’s armative disclo-

sure mandate,3 and thus FOIA re mains predominantly a

requester-driven statute.

Second, a perennial problem is that access-to-information

statutes are subject to political manipulation by administra-

tions that are intent on limiting public access to government-

held information. When George W. Bush took oce in

2001, one of the rst ocial acts of his Attorney General

John Ashcroft was to issue a directive to the heads of all fed-

eral agencies and depart ments notifying them that the Jus-

tice Department would defend all agency eorts to withhold

information under FOIA so long as there was a plausible basis

for so doing.4 More recently, the Environmental Protection

Agency (EPA) has drastically scaled back the information

made public under the Toxics Release Inventory (TRI) pro-

gram of the Emergency Planning and Community Right-to-

Know Act.5 e TRI program tracks the waste production

and release of approximately 650 dangerous chemicals.6 Prior

to EPA’s rollback, facilities had to report detailed information

for any amount over 500 pounds about the amount of any of

those chemicals and where the chemical went.7 For pollu tion

2. Pub. L. No. 104-231, 110 Stat. 3048 (1996) (codied as amended at 5

U.S.C. §552).

3. See, e.g., -



-

, 105th Cong. 20–31 (1998) (statement of Michael E. Tankersley, Senior

Sta Attorney, Public Citizen Litigation Group) (examining the implementa-

tion of EFOIA in light of reports indicating a lack of agency compliance).

4. Memorandum from John Ashcroft, Att’y Gen. of the United States, to the

Heads of All Fed. Dep’ts & Agencies (Oct. 12, 2001), available at http://www.

usdoj.gov/oip/011012.htm .

5. EPA Toxics Release Inventory Burden Reduction Final Rule, 71 Fed. Reg.

76932 (Dec. 22, 2006) (codied at 40 C.F.R. pt. 372 (2008)); see also 42

U.S.C. §11023, ELR S. EPCRA §313 (establishing the reporting require-

ments for toxic chemical releases).

6. Chemicals and Chemical Categories to Which is Part Applies, 30 C.F.R.

§372.65 (2008).

7. EPA Toxics Release Inventory Burden Reduction Final Rule, 71 Fed. Reg. at

76933.

 



    

published in the Texas Law Review (English version only) at 86 T.

L. R. 1787 (2008), and is reprinted with permission.

Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.