by Justin Gundlach
A new lawsuit filed by the Center for Media and Democracy (CMD) seeks to compel access to documents first requested in January 2015 about the industry ties of E. Scott Pruitt (pictured at right), Attorney General of Oklahoma and Donald J. Trump’s nominee for the post of EPA Administrator.
Federal and state open records laws have proved useful to advocates on both sides of environmental policy disputes. During the George W. Bush Administration, advocates and journalists used the federal Freedom of Information Act (FOIA) as part of campaigns and investigations related to the U.S. Environmental Protection Agency’s inaction on climate change and its approach to enforcement of pollution control laws. During the Obama Administration, groups like the Competitive Enterprise Institute made aggressive use of FOIA to gain access to documents and correspondence of U.S. Environmental Protection Agency staff. In addition to requests focused on EPA, this blog has described a number of efforts by climate deniers to use open records laws to harass scientists and gain access to their correspondence for the purpose of finding indications—or documents that could be made to look like indications—of research-related malfeasance.
Under the Trump Administration, the open records tables will turn once again—the ACLU called the FOIA request it filed on the first day of that Administration seeking documents about potential conflicts of interest “the first rock in our slingshot.”
Enter E. Scott Pruitt, President Trump’s nominee for the post of EPA Administrator. Senator Sheldon Whitehouse (D-Rhode Island) and others have criticized Pruitt for failing to respond to various requests for documents by the Senate. Several of those requests focus on his financial and political relationships with industrial agriculture firms and the oil and gas industry—both subjects of a recent New York Times investigation. That investigation noted, among other things, a series of letters whose contents had been written by industry lobbyists and were submitted without edits by Mr. Pruitt to federal regulators on the stationary of the Oklahoma Attorney General’s office.
Pruitt’s refusal to be forthcoming in response to Senate requests has lent greater urgency to seven Oklahoma Open Records Act (ORA) requests filed by the Center for Media and Democracy between January 2015 and January 2017. The AG’s office has acknowledged receipt of each of those requests, but has responded only to say that it continues to review the potentially responsive documents and is limited in its ability to respond because it has received so many other ORA requests.
Today, CMD filed two pleadings with the Oklahoma District Court for Oklahoma County: a petition for declaratory and injunctive relief regarding the alleged failure of the Oklahoma AG’s office to produce documents in response to any of the ORA requests; and a motion for a temporary restraining order (TRO) that would instruct the AG’s office to retain (i.e., not delete or destroy) all records potentially responsive to CMD’s various ORA requests. The petition asks the court to order immediate release of all documents identified as potentially responsive and to permit in camera review (i.e., review in the judge’s chambers) of documents identified by the AG’s office as somehow exempted from public release.
The crucial legal standard at issue is ORA’s requirement that an Oklahoma official must “provide prompt, reasonable access to [his] records” in response to properly submitted ORA requests. CMD’s petition notes that the average ORA response time is 68 days, that five of CMD’s seven requests were filed more than 68 days ago, and that the oldest of CMD’s ORA requests was filed over 730 days ago. On this basis, CMD argues that such a delay is a per se failure to provide prompt and reasonable access.
Courts generally respond within hours or days to TRO motions. Timing is critical here as the full Senate will vote soon on Pruitt’s nomination and the documents sought by CMD could sway one or more Senators’ votes. However, even if the Oklahoma AG’s office only produces the requested documents after that vote, they will shine further light on Pruitt’s connections to the industries whose polluting activities he may soon be responsible for regulating.
