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April 23, 2009, 3:27 PM New "Fishbowl" memo from Lisa Jackson By: CHUCK ELKINS Categories: EPA policies |
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In her memorandum Lisa Jackson lays out specific instructions for implementing the policy first laid out by Bill Ruckelshaus in his "Fishbowl" policy memorandum. Topics covered include involvement of the public, openness of calendars and other matters, freedom of information, communication with the Congress, etc.
MEMORANDUM
SUBJECT: Transparency in EPA’s Operations
FROM: Lisa P. Jackson
Administrator
TO: All EPA Employees
In my testimony before the Senate Committee on Environment and
Public Works and in my January 23, 2009, memorandum to all employees, I
expressed my commitment to uphold the values of transparency and
openness in conducting EPA operations. President Obama recently said in
a memorandum to agency heads: “Transparency promotes accountability and
provides information for citizens about what their Government is doing.
Information maintained by the Federal Government is a national asset.”
I am asking each one of you to help me ensure EPA operates in full
compliance with this principle.
The success of our environmental efforts depends on earning and
maintaining the trust of the public we serve. The American people will
not trust us to protect their health or their environment if they do not
trust us to be transparent and inclusive in our decision-making. To
earn this trust, we must conduct business with the public openly and
fairly.
In 1983, then-Administrator William Ruckelshaus promised that
under his leadership, EPA would operate “in a fishbowl.” I wish to
reaffirm this commitment and take the opportunity to provide guidelines
about how we will ensure transparency in our interactions with all
members of the public. These guidelines are intended to maintain the
fairness and openness of our operations and thus strengthen public
confidence in our decisions. I am relying on EPA employees to use their
good judgment to conduct themselves with the openness and integrity that
alone can guarantee public trust in EPA.
General Principles
In all its programs, EPA will provide for the fullest possible
public participation in decision-making. This requires not only that
EPA remain open and accessible to those representing all points of view,
but also that EPA offices responsible for decisions take affirmative
steps to solicit the views of those who will be affected by these
decisions. This includes communities of color, Native Americans, people
disproportionately impacted by pollution, small businesses, cities and
towns working to meet their environmental responsibilities, and others
who have been historically underrepresented in EPA decision-making. EPA
will not accord privileged status to any special interest, nor will it
accept any recommendation or proposal without careful, critical, and
independent examination.
Appointment Calendars
To keep the public fully informed of my contacts with interested
persons, I have directed that a working copy of my appointment calendar,
showing meetings with members of the public, be provided to the EPA
Office of Public Affairs, where it will be available to the public each
day on the EPA Web site. I also direct other senior Agency officials,
including the Deputy Administrator, the Assistant Administrators, and
the Regional Administrators, to make their working appointment calendars
available to the public in a similar fashion.
Freedom of Information Act Policy
As President Obama has stated, the Freedom of Information Act
should be administered with a clear presumption that openness prevails.
All Agency personnel should ensure that this principle of openness is
applied to the extent possible when responding to a FOIA request.
Managers should give their staffs and the Agency’s FOIA professionals
the support needed to satisfy FOIA’s transparency requirement in as
timely and efficient a manner as possible. In accordance with guidance
issued by Attorney General Holder on March 19, 2009, EPA offices should
exercise their discretion in favor of disclosing documents whenever
possible under the FOIA. Offices should assert an exemption to
disclosure only where the Agency reasonably foresees that disclosure
would harm an interest protected by an exemption or disclosure is
prohibited by law. Offices should also take steps to make information
public on the Agency’s Web site without waiting for a request from the
public to do so. More detailed FOIA implementation procedures will be
provided in the near future to assist you in carrying out this important
government responsibility.
Because EPA is a public regulatory agency and employer to about
18,000 employees, EPA staff may come into possession of certain
information that may need to be protected from disclosure under FOIA,
including certain contract or business data, trade secrets, or personal
privacy information. Although the Agency’s business is to be conducted
in an open and accountable manner, we must also ensure that information
entitled to special protection is handled with the utmost care and in
full compliance with all applicable laws and regulations. Questions
about whether special protections apply to certain information should be
directed to the Office of General Counsel’s General Law Office.
Rulemaking Proceedings
Much of EPA’s business is conducted through rulemaking. It is
crucial that we apply the principles of transparency and openness to the
rulemaking process. This can only occur if EPA clearly explains the
basis for its decisions and the information considered by the Agency
appears in the rulemaking record. Therefore, each EPA employee should
ensure that all written comments regarding a proposed rule received from
members of the public, including regulated entities and interested
parties, are entered into the rulemaking docket.
Robust dialogue with the public enhances the quality of our
decisions. EPA offices conducting rulemaking are therefore encouraged
to reach out as broadly as possible for the views of interested parties.
However, while EPA may and often should meet with groups and
individuals, we should attempt, to the maximum extent practicable, to
provide all interested persons with equal access to EPA. In addition,
it is essential to ensure that the public receives timely notice, as far
as practicable, of information or views that have influenced EPA’s
decisions. This means that EPA employees must summarize in writing and
place in the rulemaking docket any oral communication during a meeting
or telephone discussion with a member of the public or an interested
group that contains significant new factual information regarding a
proposed rule.
Questions about how to handle comments and other communications
regarding a proposed rule should be directed to the appropriate program
office personnel, attorneys in the Office of General Counsel, or
regional staff working on the specific rulemaking.
I am committed to fulfilling President Obama’s direction to agency
heads to make use of tools and technology to increase outreach and
interaction with the public. Public participation in Agency rulemaking
proceedings may take a variety of forms, including public hearings and
meetings, workshops, forums, focus groups, surveys, roundtables, Federal
Register notice-and-comment procedures, advisory committee meetings,
informal meetings with interested parties, internet-based dialogues, and
other opportunities for informal dialogue, consistent with applicable
legal requirements. I encourage our staff to be creative and innovative
in the tools we use to engage the public in our decision-making.
Litigation and Formal Adjudication
EPA is engaged in a wide range of litigation. The conduct of
litigation by the Agency should reflect the principles of fairness and
openness that apply to other EPA activities. However, we must also
protect privileged litigation and enforcement-sensitive information from
unauthorized disclosure. Communication with parties involved in
litigation with EPA about that litigation should be through an attorney
representing EPA in the case. Program personnel who receive inquiries
about pending litigation from persons who are not parties to the
litigation should consult with an attorney representing EPA in the case
before responding. If you do not know which attorneys are representing
EPA in a specific case, contact knowledgeable EPA lawyers, including the
Office of General Counsel, the Office of Enforcement and Compliance
Assurance, or an Office of Regional Counsel, as appropriate.
Formal adjudications (including certain administrative penalty
proceedings and pesticide cancellation proceedings) are also governed by
specific requirements that limit communications between EPA staff and
interested parties. These limitations appear in the various EPA rules
governing those proceedings. Information about these rules is available
from the Office of General Counsel and on the EPA Intranet.
Contacts with Congress and the Press
EPA often receives requests for records or information from
Congress, i.e. the Speaker of the House, the President of the Senate,
the Chair of a Committee or Subcommittee with jurisdiction over EPA. It
also receives informal requests from individual members of Congress and
their staffs. I recognize the importance of Congressional oversight and
encourage our programs to provide Congress with the information
necessary to satisfy its oversight and legislative interests to the
extent possible and consistent with our Constitutional and statutory
obligations. Information requests from Congress should be handled in
consultation with managers of the affected EPA programs and our
legislative affairs staff in the Office of Congressional and
Intergovernmental Relations.
EPA also should be accessible to the press, which performs a vital
role in informing the public about EPA’s actions. As we respond to
press inquiries, the EPA staff should respect our internal deliberative
processes and strive for accuracy and integrity in our communications.
This will ultimately enhance public trust in the Agency. When
interacting with the press in the performance of your official duties,
please coordinate with the managers of your program and media relations
experts in the Office of Public Affairs.
Nothing contained in this memorandum interferes with your right to
petition or to furnish information to Congress or a Member of Congress,
as provided under applicable law, or to engage in protected
whistleblowing activities.
Communications Generally
The Office of Public Affairs plays a central role in shaping the
Agency’s communications with the public. OPA will be providing further
guidance on how our programs and regions should coordinate with it on
the preparation of messaging materials and interactions with the press.
Conclusion
I have the utmost confidence in the ability of EPA’s workforce to
promote full public involvement and openness in all EPA affairs. I
believe this will enhance the credibility of the Agency, boost public
trust in our actions and improve the quality of our decisions. In
short, we will let more sunlight into our Agency. I look forward to
hearing any additional ideas you may have on how we can achieve this
goal.
As I continue to work with all of you, I plan to provide further
thoughts on how we can strengthen EPA’s public role in serving the needs
of the public and advancing our environmental protection mission.
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