EPA Waiver Bias Against Conservatives

From: Competetive Enterprise Institute 

It’s not just the IRS that treats groups on the right differently from the rest. According to documents obtained by the Competitive Enterprise Institute, the Environmental Protection Agency is in on it too.
Public records produced by EPA in response to a lawsuit filed by CEI under the Freedom of Information Act illustrate a pattern of making it far more difficult for limited-government groups – in particular those who argue for more freedom and less EPA – to access public records.

Such groups are precisely those Congress and courts made clear FOIA was intended to protect from fees being used as a hurdle to obtaining information, without prejudice as to their perspective. Worse, CEI has now obtained proof of the spectacularly disparate nature of the practice, specifically revealing extraordinarily favorable treatment of the same green groups it’s been shown to be collaborating with on its agenda.

FOIA is clear that public interest groups who, by trade, obtain and broadly disseminate “government” information to the public are the intended beneficiaries of its provision for waiving fees. EPA routinely grants such fee waivers to its favored left-wing groups who demand a more intrusive and powerful EPA, but systematically denies waivers for groups on the right, according to research compiled by CEI Senior Fellow Christopher Horner, author of "The Liberal War on Transparency."

In a review of letters granting or denying fee waivers granted at the “initial determination” stage from January 2012 to this Spring, Horner found green groups, such as the National Resources Defense Council, Sierra Club, Public Employees for Environmental Responsibility and EarthJustice, had their fees waived in 75 out of 82 cases. Meanwhile, EPA effectively or expressly denied Horner’s request for fee waivers in 14 of 15 FOIA requests over this same time.¹

Moreover, every denial Horner appealed was overturned. “That these denials are ritually overturned on appeal, not after I presented any new evidence or made any new point, but simply restated what was a detailed and heavily sourced legal document to begin with, reaffirms the illegitimacy of these hurdles EPA places in the way of those who cause it problems.” Horner said. “EPA’s practice is to take care of its friends and impose ridiculous obstacles to deny problematic parties’ requests for information.”

The numbers for a sampling of comparable “national” groups are mind-boggling. Of Sierra Club’s 15 requests, EPA granted 11. And Sierra Club received the harshest of treatments. In fact, EPA granted 19 of NRDC’s 20 requests and 17 of EarthJustice’s 19 requests. Public Employees for Environmental Responsibility went a perfect 17-for-17. The Waterkeeper Alliance had all three of its requests granted, Greenpeace and the Southern Environmental Law Center each were 2-for-2, the Center for Biological Diversity 4-for-4.

That is, these green pressure groups encountered a cooperative EPA 92 percent of the time, but Horner’s requests on behalf of CEI and the American Tradition Institute were rejected more than 93 percent of the time.

EPA documents also showed Judicial Watch and the National Center for Public Policy Research each went 2-for-4, the Franklin Center had both its requests denied, and the Institute for Energy Research was denied in its only foray.

CEI has been recognized as a media outlet by federal and state agencies, so it is worth noting liberal media outlets, such as National Public Radio (7-for-7), ProPublica (3-for-3), the Nation and InsideClimateNews – all had all their requests granted over the same period.

“This is as clear an example of disparate treatment as the IRS’ hurdles selectively imposed upon groups with names ominously reflecting an interest in, say, a less intrusive or biased federal government,” said Horner. “This demonstrates a clear pattern of favoritism for allied groups and a concerted campaign to make life more difficult for those deemed unfriendly. The left hand of big government reaches out to its far-left hand at every turn. Argue against more of the same, however, and prepare to be treated as if you have fewer rights.”

IRS: We can read emails without warrant

From: The Hill's Hillicon Valley

The Internal Revenue Service (IRS) has claimed that agents do not need warrants to read people's emails, text messages and other private electronic communications, according to internal agency documents.

The American Civil Liberties Union (ACLU), which obtained the documents through a Freedom of Information Act request, released the information on Wednesday.


In a 2009 handbook, the IRS said the Fourth Amendment does not protect emails because Internet users "do not have a reasonable expectation of privacy in such communications." A 2010 presentation by the IRS Office of General Counsel reiterated the policy.

Under the Electronic Communications Privacy Act (ECPA) of 1986, government officials only need a subpoena, issued without a judge's approval, to read emails that have been opened or that are more than 180 days old.

Privacy groups such as the ACLU argue that the Fourth Amendment provides greater privacy protections than the ECPA, and that officials should need a warrant to access all emails and other private messages.

Traditionally, the courts have ruled that people have limited privacy rights over information they share with third parties. Some law enforcement groups have argued that this means they only need a subpoena to compel email providers, Internet service companies and others to turn over their customers' sensitive content.

But in 2010, a federal appeals court ruled that police violated a man's constitutional rights when they read his emails without a warrant.

Despite the court decision, U.S. v. Warshak, the IRS kept its email search policy unchanged in a March 2011 update to its employee manual, according to the ACLU.

In an October 2011 memo obtained by the ACLU, an IRS attorney explained that the Warshak decision only applies in the Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee.

But the attorney noted that if a service provider fought the search request, it would likely result in "protracted litigation," meaning that any leads from the emails would be "stale" if the IRS ever obtained them.

The IRS did not respond to a request to comment.

The ACLU also submitted requests for documents from the FBI and the Justice Department on their policies for emails searches, but has not received responses yet.

Lawmakers in both chambers are working on legislation that would update the ECPA to require a warrant for emails and other private online messages.

At a hearing last month, Elana Tyrangiel, the acting assistant attorney general for the Justice Department's Office of Legal Policy, agreed that there is "no principled basis" for treating emails differently depending on how old they are.

Watchdog group is prepared to sue for photos of bin Laden

From: The Hill

A watchdog group says it is prepared to file a lawsuit to obtain photos of Osama bin Laden’s corpse.

Judicial Watch, which has sued the government multiple times for documents under the Freedom of Information Act (FOIA), has already filed requests under that law to obtain photos of the al Qaeda leader’s dead body.


Tom Fitton, the group’s president, said he doesn’t believe President Obama’s objections to releasing the photos outweigh the public’s right to know.

“We are prepared to sue if they don’t respond as they are supposed to under the law,” Fitton told The Hill. “I have not heard anything from the president that would provide a lawful basis for not providing the photos. Not wanting to be seen as ‘spiking the football’ is not a lawful reason to withhold documents under FOIA.”

On Tuesday, Judicial Watch filed a FOIA request with the Defense Department for photos and videos of bin Laden on the day of the U.S. military raid on his compound in Abbottabad, Pakistan. The group also filed a request for the bin Laden photos Wednesday with the CIA.

Under the law, the Obama administration has 20 days to respond to those requests. If those requests are denied, the watchdog group can file an appeal and eventually a lawsuit to secure the release of the photos.
“This is arguably the most important military operation in our lifetimes. This is basic information,” Fitton said.

On Sunday night, Obama announced that U.S. forces had killed bin Laden in a raid on his hideout. After several administration officials gave differing responses on whether photos of bin Laden’s corpse would be released, Obama on Wednesday ruled out disclosing them.