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Is An Open Records Scandal Breaking Out at EPA?

4/2/2013 | Construction Blog

epa-logo-thumb-300x300-18152-thumb-300x300-18153An open and ongoing dispute between a researcher for the Competitive Enterprise Institute and the Environmental Protection Agencyis starting to appear in construction related publications. The researcher, Christopher Horner, thinks EPA is hiding something and is suing in Court for what he claims are violations of the Freedom of Information Act.

The Freedom of Information Act, commonly known as FOIA, is a lawdesigned to create transparency in government by permitting citizens to make requests for documents in the government’s files. With some limited and largely obvious exceptions, requested records are to be made available to citizens for inspection and can be copied at a reasonable cost. Another little known part of the law prohibits government officials from using private e-mail addresses and other means to conduct official agency business. This ensures that those government officials don’t effectively prevent discovery of important documents subject to FOIA by claiming they don’t exist on the agency’s system.

Through previous efforts, Mr. Horner was able to determine that it is a wide spread practice at EPA to use alternate e-mail addresses. Officials use false names on the agency system and/or communicate on their own secondary private e-mail accounts in order to hide what Mr. Horner contends are improper communications or relationships with various organizations. More recently, Mr. Horner has alleged that EPA is using instant messaging without retaining copies of what is said as another way to circumnavigate the disclosure requirements.

Assistant EPA Administrator Gina McCarthy is right in the middle of the issue. Because she is President Obama’s selection to head up the EPA in his second term, it’s not likely the questions will go away. What’s more, more than one senator is asking questions. A lawsuit has been filed over what Mr. Horner claims is a retaliatory refusal to waive copying fees that were waived on previous occasions. He alleges the retaliation results from his public accusations of wrong doing by EPA.

This is a story worth following. The political intrigue aside, FOIA was passed for very specific reasons. As it pertains to the construction industry, the government impacts every single construction project. This is true whether the project is public or private. From funding, to safety, to permits, and beyond; the government plays a role in how all projects get done. If citizens, including contractors, cannot get straight answers from the governmental agencies with which they deal, how are they to complete projects in an effective manner? Moreover, EPA policy continues to impact the construction industry on a regular basis. Regardless of whether one agrees with those policies or not, they have to be followed. The process by which they are decided should therefore be open and transparent.