EPA Updates FOIA Regulations

Effective November 13, 2023, EPA is updating its regulations under the Freedom of Information Act (FOIA) at 40 CFR part 2. These changes are considered Phase II of EPA’s FOIA modernization efforts. Importantly, EPA did not change any of the methods of submission of FIOA requests. EPA will continue to accept FOIA requests through its website and by mail. Below is a summary of changes to be aware of.

EPA’s FOIA regulations previously allowed EPA to take requests out of order and give expedited treatment if there was a “compelling need.” With the amendments, EPA can also expedite requests with an environmental justice-related need. An “environmental justice-related need” is defined as “a pressing need to inform a community that is potentially experiencing disproportionate and adverse human health or environmental effects.” Requests for expedited review must be made in writing at the time of the initial request.

EPA’s FOIA regulations had already required requesters to “reasonably describe” the records they were seeking and EPA already gave requesters an opportunity to fix a request that did not. With the amendments, EPA added a 20-day deadline for requesters to fix a request, otherwise the request will be closed. 

Formerly, EPA would only look for records that existed prior to the date the request was received. Under the amendments, EPA moved the cut-off date to the date EPA actually begins searching for the records. As a result, requesters will receive a few more days’ worth of material.

EPA made several changes related to the fees charged for searching for records, reviewing them, and duplicating them. Formerly, fees were paid by check or money order to EPA. Under the amendments, fees can be paid electronically at www.pay.gov or by check or money order to the US Treasury. EPA established a calculation for fee rates such that fees will automatically increase as salaries for EPA staff increase. Fee rates are based on the rank of the employee performing the search, review, or duplication. For employees at grades GS-9 to GS-12, the new fee will be $10.00 per quarter hour; for employees at grades GS-13 to GS-15, the new fee will be $18.00 per quarter hour. EPA also increased the minimum fee to $250 and the advanced payment threshold to $450. Whether a requester is charged at all depends on the type of request. The table below shows what fees are charged based on the type of request.

Under the amendments, EPA can both combine and divide requests. EPA can combine multiple FOIA requests that involve related matters. This could result from a single requestor submitting multiple related requests or from multiple requesters submitting related requests. EPA can treat the requests as one and charge one aggregate fee. EPA also divide requests by assigning multiple tracking numbers to a single request. Distinct parts of the request will be sent to different regions or program offices. The requester will receive responses to each part as they become available. The requester must be careful because each response would create a separate right of appeal, so a deadline to appeal may arise (and pass) before the entire response is received.

Finally, EPA moved all provisions related to administrative appeals to their own section. Such provisions had previously been located in various sections.

The Federal Register notice is available here: https://www.federalregister.gov/documents/2023/09/14/2023-19699/freedom-of-information-act-regulations-update-phase-ii

A redline of the amendments is available in the docket here: https://downloads.regulations.gov/EPA-HQ-OGC-2022-0885-0002/content.pdf

By: Jessica Reiss, Attorney, Barnes & Thornburg LLP