Judicial Watch FOIA Suits Spotlights EPA Resistance to Trump

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Messages raise question of where the line is between official and personal

When Judicial Watch filed a Freedom of Information Act (FOIA) lawsuit for communications sent and received by Environmental Protection Agency (EPA) staff, it was because workers in the federal agency may have used the cell phone encryption application “Signal” to thwart government oversight and transparency.

Judicial Watch Inc. v Environmental Protection Agency was filed in the U.S. District Court for the District of Columbia after the EPA failed to respond to Judicial Watch’s Feb., 3, 2017, FOIA request.

“There’s a president who was elected lawfully and who is enabled to create new policy, which officials who work for him are supposed to implement even if they disagree with that policy and that’s a trick evidently that some workers at the EPA don’t want to perform,” Tom Fitton, president of Judicial Watch, told Pacer Monitor News. “And if that’s their view, they shouldn’t be working in the federal government.”

Federal employees from several agencies, including the EPA, were worried President Donald Trump would gut their agencies and allegedly created new email addresses, signed up for encrypted messaging apps and looked for other protected ways to push back against the new administration’s agenda.

“Federal officials are supposed to implement policies as directed by the president and his appointees and if they disagree with those policies, there are regular ways of opposing them, but to organize against an elected government like this is just completely outside the rule of law,” Mr. Fitton said.

Robert Collings, an environmental partner with Philadelphia-based Schnader Harrison Segal & Lewis, said the core question is whether these communications were government business or personal communications.

In a similar case, the Democratic National Committee sued the Department of Justice in 2007 after its FOIA request for emails relating to the firing of nine U.S. attorneys was not granted by DOJ attorneys. The DNC reportedly argued that since the White House officials used “GWB43.com” email addresses to send the messages, they cannot be deemed official in nature and therefore must be turned over under the DNC’s FOIA request.

Politico reported at that time that District Judge Ellen Huvelle of the U.S. District Court for the District of Columbia held that the DNC does not have a right under the Freedom of Information Act to 68 pages of e-mails sent between White House and Justice Department officials simply because the White House e-mail traffic was transmitted on a server controlled by the Republican National Committee.

“There’s always been lawlessness in the bureaucracies and this is the latest flavor,” said Mr. Fitton.

According to the Department of Justice website, FOIA only empowers federal district courts to enjoin agencies from withholding agency records and if information is determined not to be of agency records, the Courts have no power to order their release.

“The threshold issue here is whether any such encrypted messages were for government business and would qualify as agency records under FOIA,” said Devin McDougall, an attorney at Sive, Paget and Riesel, an environmental law firm in New York. “If so, they do need to be released. However, if they are not agency records, they would not need to be released, because encryption is legal for personal communications.”

Lawyers who specialize in environmental protection law say the case has wider implications and is deeper than just political dissension between Republicans and  Democratic holdovers from the Obama Administration who might still work in the EPA office.

“This case is dealing with a relatively new technology, which is encrypted text messaging,” Mr. Collings told Pacer Monitor News. “I’m not aware of a case yet that specifically addresses encrypted text messaging.”

Another overarching issue that the suit touches upon is the Trump Administration’s reported interest in killing expressions of dissent by employees.

“There’s an increase in monitoring of what federal employees can say at work,” Mr. Collings said in a telephone interview.

For example, when 1,000 State Department workers signed a memorandum opposing the President Trump’s Muslim travel ban, White House Press Secretary Sean Spicer responded with the following statement: “These career bureaucrats have a problem with it? I think they should either get with the program or they can go.”

But being under fire is nothing new for the EPA. Mr. Trump’s pick to head the EPA Scott Pruitt sued the EPA over regulations 14 times when he was the attorney general of Oklahoma. The EPA had claimed that the Clean Air Act gave it the authority to create new regulations but the Supreme Court blocked the Obama Administration’s Clean Power Plan until challenges at the state level could be resolved.

“The regulatory authority we think has been abused,” Mr. Fitton said in a telephone interview. “Agencies, such as the EPA, want to do what they want but don’t want to be held accountable for what they do.”

Since Judicial Watch submitted the complaint on March 23, 2017, counsel for the EPA on May 1 filed to dismiss the pleading with prejudice and a joint briefing schedule was filed by the EPA on May 16.

“The fact that the case continues indicates that Judicial Watch is not satisfied with the response it received,” said Mr. Collings. “The continuing schedule and actions ordinarily indicate that there remain disputed issues.”

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