SAN FRANCISCO (CN) — The U.S. Environmental Protection Agency cannot claw back documents it disclosed by mistake revealing the names of oil lobbyists who planned a chummy “happy hour” outing with EPA officials, a federal judge has ruled.
In a decision issued late Tuesday night, U.S. Magistrate Judge Joseph Spero found the EPA failed to show unveiling names and email addresses of lobbyists posed the kind of privacy or safety risk that would justify ordering the documents be returned.
The EPA argued that disclosing those details could make the lobbyists targets of harassment by the media or “individual actors.”
Spero found no evidence that unmasking other lobbyists’ names in FOIA-requested documents led to the kind of harassment that the EPA feared. He further surmised that oil lobbyists probably know how to handle being contacted by the press, should the disclosure spark media interest.
“It is not clear why the government affairs professionals at issue would be unaccustomed to handling a press inquiry or incapable of declining to comment if they so chose,” Spero wrote in his 14-page ruling.
Spero’s decision resolved the final dispute in a lawsuit filed by the Sierra Club in 2018 over the EPA’s failure to disclose requested communications records for about 15 EPA employees, including senior officials, intergovernmental relations staff and the executive assistant to former EPA administrator Scott Pruitt.
In December 2018, former U.S. Magistrate Judge Elizbeth Laporte ordered EPA to disclose the requested records to comply with the Freedom of Information Act (FOIA). Judge Spero was assigned the case after Laporte retired in 2019.
Among the 50,000 pages of documents disclosed from December 2018 to April 2020, EPA handed over a chain of emails from June 2018 pertaining to a “happy hour” get-together being planned between three oil lobbyists and two EPA officials.
The EPA officials were Jeff Freeland, special assistant to the president for legislative affairs, and former EPA intergovernmental affairs employee Charles Ringel, who now works for the U.S. State Department.
The lobbyists involved in the email chain were Chris Parinello of Valero, Michael Birsic of Marathon Petroleum and Cory Toth of American Fuel and Petrochemical Manufacturers, an industry trade group. The emails described plans for a night of drinking and watching a hockey game in late June 2018.
The EPA said it intended to black out the lobbyists’ names and parts of their email addresses that reveal their names, but it accidentally turned over versions of the documents missing those redactions.
Once it became aware of its mistake, EPA asked Sierra Club to return the inadvertently disclosed emails. Sierra Club offered to return the records if EPA would only redact part of the email addresses. That offer was rejected.
In October, EPA filed its motion to claw back the documents, arguing the disclosure would “constitute a clearly unwarranted invasion of personal privacy” and provide no relevant information on the agency’s performance of its duties.
In his decision Tuesday, Spero found the agency did not “meet its heavy burden” to justify clawing back the accidentally disclosed emails.
“Many mistakes by litigants have consequences,” Spero wrote, adding that the court’s powers to grant extraordinary relief “are not an appropriate tool to undo all such errors.”
FOIA does not specifically authorize the return or destruction of inadvertently disclosed records, but courts have granted claw backs in rare circumstances. One such example occurred in 2009 when a federal judge in the Southern District of New York ordered the ACLU to return a classified document that was disclosed by mistake.
Spero found none of those few cases provided a compelling basis to claw back the EPA’s June 2018 “Happy Hour” emails.
“While such an order might be a valid and necessary exercise of inherent authority in an appropriate case, the circumstances of this case do not warrant use of that power,” Spero wrote.
Though Spero offered no opinion on whether the lobbyist names can be withheld under FOIA, Sierra Club lawyer Elena Saxonhouse insisted the public has a strong interest in knowing what lobbyists are cozy with EPA officials.
“The ultimate issue is not just their names,” Saxonhouse said in a phone interview. “It’s whether these folks are using their close relationships to the oil industry’s advantage on particular policy issues.”
EPA officials and lobbyists have particularly close relationships under the Trump administration, she added, because many EPA officials used to work for the industries they are tasked with policing.
“The need for transparency is particularly great given the people who are at EPA under this administration,” Saxonhouse said.
Saxonhouse rated the EPA’s record on transparency under the Trump administration as “not good,” saying the Sierra Club has had to file multiple lawsuits to obtain requested documents.
Last year, environmental groups sued the EPA over new rules that opponents say make it harder to obtain records from the agency and expand what documents are withheld in violation of FOIA. That suit was transferred from Northern California to the District of Columbia, where it remains pending.
The EPA did not immediately return an email requesting comment Wednesday.
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