Thursday, September 13, 2012 1:43 PM PT
Gov't Accused of Withholding Enviro-Related Docs

     WASHINGTON (CN) - A public policy group claims that three government agencies refuse to hand over correspondence in connection with climate change and a possible carbon tax, saying the "'most transparent ever' administration" has discussed controversial topics through private emails to avoid public scrutiny.
     The Competitive Enterprise Institute (CEI), a public policy research group, recently filed separate lawsuits against the Environmental Protection Agency, the U.S. Department of the Treasury and the National Oceanic and Atmospheric Administration in federal court in Washington, citing Freedom of Information Act violations.
     CEI claims that the agencies failed to maintain the Obama administration's transparency promises by refusing to respond to disclosure requests, including those seeking private emails used to conduct official business by government officials.
     The group's most recent action, which it called a "Groundbreaking Lawsuit against EPA for Hiding Agency Records on Private E-mail Accounts," concerns CEI's request for records sent to and from any email addresses used by EPA Region 8 Administrator James Martin for official duties, expressly including accounts not provided by the EPA.
     The EPA refused to release emails sent to Martin's private email, but did not address the request for outgoing private emails, according to the complaint. Although the agency provided some records in connection with Martin's EPA-based email account, it withheld two identified agency records, CEI says.
     The EPA refused to turn over records between Martin and Dan Grossman of the Environmental Defense Fund, citing "'personal privacy interest of the non-EPA correspondent' to withhold every word in the email threads, including all words written by the EPA official but grounded in the need to protect the privacy of the non-EPA correspondent," CEI states.
     William Yeatman, the CEI energy policy analyst who helped attorneys put the lawsuits together, told Courthouse News that the real question is, "Can you circumvent transparency laws by using private email?"
     Yeatman says he was also recently a party to another EPA Open Records Act request at the state level in which access to private Gmail accounts was being wrongfully denied.
     He stated that it appears the government is trying to "attempt to shield private email accounts being targeted." Red flags went up in this case since it is "very rare that the request [to see EPA records] didn't even receive a case number" within the 20-day time limit, according to Yeatman.
     "In the face of an increasing number of revelations about senior government employees turning to private email accounts to conduct official business, circumventing the requirements of statutory and regulatory record-creating and record-keeping regimes, EPA refuses to comply with its FOIA obligations in the present matter," the complaint states.
     "For five months EPA has refused to produce responsive records. Certain records at issue in this matter, those that were sent to or from Mr. Martin's private email account, reflect a practice, the widespread nature of which is only now emerging, of government employees using non-official email accounts to conduct official duties, avoiding creation of the official record required by federal statute and regulation," CEI states.
     The group also sued the National Oceanic and Atmospheric Administration (NOAA), claiming the agency failed to respond to a request CEI submitted on August 6 to see records sent by Senior NOAA employee Thomas Peterson, who works as an author for the Intergovernmental Panel on Climate Change (IPCC), to Thomas Stocker, a colleague on the panel, between February 2010 and May 2010.
     According to the complaint, CEI wanted to check out a February 2010 letter sent on IPCC letterhead to panel authors that provided recommendations on how to respond to email leaks, including emails to and from NOAA employees, known as "Climategate."
     A Department of Commerce inspector general confirmed that IPCC-related records "are in fact 'agency records' subject to FOIA," and a response was due by September 4, CEI claims.
     CEI also claims the Treasury refused to hand over requested documents that contained the word "carbon" that were produced, sent and received by the Office of the Deputy Secretary for Environment and Energy and the Office of Legislative Affairs since January 2012.
     "In early August, a carbon tax bill was introduced in the House of Representatives by Rep. Jim McDermott (D-WA). Days later, Senate Majority Leader Harry Reid (D-NV) expressed hope that the Senate would soon take up legislation to put a price on carbon-based energy sources," CEI stated in a release. "These are the sources of which America has been blessed with abundance, and which work when and where Americans need them: oil, coal and gas."
     "Transparency in government service is a legal requirement that has become the subject of great public interest and priority, and specific and high-profile promises from the president and attorney general of the United States," the group says in its complaint.
     "Meanwhile, media reports have informed taxpayers that a 'carbon tax' is being developed for the expected post-election 'lame duck' session of Congress later this year," the group stated.
     CEI quotes Christopher Horner, the group's senior fellow and author of "The Liberal War on Transparency," as saying, "Despite President Barack Obama's repeated promises for openness and transparency in government, the Treasury Department failed to even acknowledge CEI's FOIA request as required by law. This is an unusual step given the tools available to delay producing records typically invoked only for the most inconvenient requests for records."
     CEI wants the federal court to force the agencies to turn over the requested records. Hans Bader, Christopher Horner and Sam Kazman in Washington represent the public policy group.