In my attempt to understand the EPA’s methodology for calculating ENERGY STAR building benchmarking scores I have frequently requested specific information from the EPA. Early on I found the EPA to be reluctant to share anything with me that was not already publicly released by the agency. Dissatisfied with this lack of transparency I decided to formally request information from the EPA through the Freedom of Information Act (FOIA) process. I filed my first FOIA request in March of 2013. I have since filed about 30 such requests.
The Freedom of Information Act requires that a Federal agency respond to such requests within 20 working days. If the Agency fails to comply you can file a law suit with the Federal Courts and be virtually guaranteed a summary judgement ordering the Agency to release the requested documents. Of course the courts move at a snail’s pace so you cannot expect this process to produce documents anytime soon, or even to get the courts to take action in a rapid time frame.
The EPA keeps track of its statistics at addressing FOIA requests. It has devised two tracks for such requests, a Simple Track and a Complex Track in which requests are sorted. EPA policy is to make every attempt to respond to simple FOIA requests within the statutory 20 day time frame. Complex FOIA requests take longer time to locate documents and process them for public release. For instance, if you request all of Hillary Clinton’s emails it will take time to locate them and to eliminate any portions that might be classified.
The EPA has also adopted a first in-first out policy for processing FOIA requests from a particular requester. So, if I already have a complex FOIA request in the queue and I file a second, complex FOIA request, it is the EPA’s policy to complete processing of the first request before turning to the second request. The same policy applies to any requests in the Simple Track. But it is EPA policy to treat these two tracks independently. Meaning that if I have a pending FOIA request in the Complex Track queue and subsequently file a Simple FOIA request, the EPA’s policy is to work on these two requests in parallel. That is, it will not hold up a Simple FOIA request in order to complete a Complex request that was filed earlier.
I have a Complex FOIA request with the EPA that has been outstanding for nearly two years. I have no expectation that the EPA will respond to this request unless I seek assistance from the courts. They are simply intransigent. This action, combined with the EPA’s first in-first out policy means that the EPA will not process any other complex FOIA requests from me unless I get the courts involved.
On August 9, 2015 I filed a FOIA request with the EPA to provide me with copies of 11 documents that summarize the development and revision of the EPA’s Senior Care Facility ENERGY STAR building model. I know these documents exist because earlier I received an EPA document entitled, “ENERGY STAR Senior Care Energy Performance Scale Development,” an EPA document that serves as a Table of Contents for documents associated with the development of this model. This request requires no searching as the requested documents are specifically identified, readily available, and cannot possibly raise national security issues. Yet the EPA placed this request in its “Complex Track” and provided no response to me for more than 20 days.
On September 14, 2015, having received no response I filed what is called an “Administrative Appeal” to ask the Office of General Counsel to intercede to force the agency to produce the requested documents. In my appeal I pointed out that my FOIA request was, by very definition, simple, and thus EPA policy required the Agency to act on this request within the 20 day statuatory period. By Law the EPA has 20 working days to decide an Administrative Appeal.
On Friday, October 30, 2015 the EPA rendered a ruling on my Administrative Appeal. The ruling is simple — the Office of General Counsel directs the Agency, within 20 working days, to respond to my initial request. Think of it, 58 working days (two and a half months) after I filed my initial FOIA request — a request which by law should have been responded to within 20 working days, the EPA has now been told by the Office of General Counsel to respond to my request within 20 working days. What a farse!