EPA refusal is a chance for Congress to act

The Environmental Protection Agency has provided Congress with the perfect opportunity to limit — if not completely end — the over-use of executive privilege, at least in FOIA cases. 

The EPA is withholding numerous documents from Sen. Barbara Boxer, D-Calif., and other lawmakers, which explain why the agency rejected California’s request for a waiver under the state Clean Air Act, according to a story by the Associated Press.

"EPA is concerned about the chilling effect that would occur if agency employees believed their frank and honest opinions and analysis expressed as part of assessing California’s waiver request were to be disclosed in a broad setting," EPA’s associate administrator Christopher P. Bliley wrote to Boxer.

The privilege is more commonly referred to as the "deliberative process" privilege at the agency level, and it has been cited more and more often as a reason for nondisclosure by the federal government.   As Pete Weitzel of the Coalition of Journalists for Open Government has shown in his invaluable studies of executive agencies’ FOIA performances from 1998-2006, the use of the deliberative process privilege and its counterparts contained in FOIA exemption 5 sprang up 68 percent of the time.

The time is ripe for Boxer and others in Congress to end the disservice that so often usurps the very purpose of open records by strictly defining the parameters of exemption 5 so that it isn’t misused by those in power who wish to avoid embarrassment by keeping the people in the dark.