02.15.17

Senators Weigh in on Court Case Seeking Release of Critical Documents on Pruitt Ties to Fossil Fuel Industry

Carper, Whitehouse, Merkley, Booker, Markey, Duckworth advise Oklahoma District Court of the Senate’s interest in documents Pruitt has failed to produce under the state’s Open Records Act

Washington, D.C. – Today, a group of Senators weighed in with an Oklahoma court on a legal action seeking to require the Office of the Oklahoma Attorney General to release documents relating to Environmental Protection Agency Administrator nominee Scott Pruitt’s connections to the fossil fuel industry.  The Senators, all members of the Senate Environment and Public Works Committee, had requested the information from Pruitt during his confirmation process.  Rather than divulge it, Pruitt referred the Senators to his own office’s process for requesting documents under Oklahoma’s Open Records Act—a process that can take months, or even years, to complete. 

The Center for Media and Democracy and the American Civil Liberties Union of Oklahoma have sued Pruitt for violating the Open Records Act for failing to provide public access to official emails and other documents for more than two years.  The case is currently pending before Oklahoma District Court Judge Aletia Haynes Timmons.  A hearing in the case is set for tomorrow afternoon.  Senators Tom Carper (D-DE), Sheldon Whitehouse (D-RI), Jeff Merkley (D-OR), Cory Booker (D-NJ), Edward J. Markey (D-MA), and Tammy Duckworth (D-IL) signed the letter to the judge. 

The Senators write, “Regrettably, Mr. Pruitt has not been forthcoming with information many of us believe to be necessary to evaluating his nomination fully. We gave Mr. Pruitt many opportunities to provide information to the Committee, including pre-hearing questions, the hearing itself, and post-hearing questions for the record to which Mr. Pruitt was required to submit written responses.  Much of his testimony was evasive and many of his written answers non-responsive. This lack of information forced the Democratic members of the Committee to take the extraordinary step of boycotting the committee vote on his nomination twice because the Committee Chairman refused to delay proceedings until Mr. Pruitt provided responsive answers to our inquiries.

“While many of us disagree with various policies Mr. Pruitt may pursue as Administrator, we write to the Court today because we need to understand whether in his current capacity Mr. Pruitt engaged with the industries that he will be responsible for regulating if he is confirmed as Administrator in ways that would compromise his ability to carry out his duties with the complete impartiality required.” 

The Senators note:

  • Pruitt has a history of close and secret ties with the industries he will regulate at EPA.
  • He has claimed he has no power over his office’s Open Records Act responses.
  • He nevertheless told Senators to submit Open Records Requests to get the information they want.
  • Senators continue to be stonewalled.
  • The Center for Media and Democracy’s requests are of federal importance.

Text of the letter is below.  A PDF copy with exhibits is available here.

February 15, 2017

Hon. Aletia Haynes Timmons

District Judge

Oklahoma County Court House

321 Park Ave., Room 814

Oklahoma City, OK 73102

Dear Judge Timmons:

We write as members of the United States Senate’s Committee on Environment and Public Works (EPW Committee) to bring to your attention facts pertinent to your consideration of Center for Media and Democracy v. Scott Pruitt, CV-2017-223.  In light of the time-sensitive nature of our concerns, we appreciate that you have scheduled this matter for expedited review, and respectfully wish to inform you that to expeditiously grant Plaintiff the full relief it seeks would facilitate the performance of our duties of advice and consent. 

As you may be aware, Oklahoma Attorney General Scott Pruitt has been nominated by President Donald Trump to serve as Administrator of the Environmental Protection Agency (EPA).  EPA is under the jurisdiction of the EPW Committee.  Accordingly, Mr. Pruitt’s nomination was referred to our Committee for a hearing and report to the full Senate pursuant to the Senate’s advice and consent obligations under Article II, Section 2, Paragraph 2 of the United States Constitution.  Mr. Pruitt’s hearing was held January 18, 2017 and his nomination was reported to the Senate with a favorable recommendation on February 2, 2017.  Mr. Pruitt’s nomination is now pending on the Senate’s Executive Calendar, so debate and a vote by the full Senate is imminent. 

Regrettably, Mr. Pruitt has not been forthcoming with information many of us believe to be necessary to evaluating his nomination fully. We gave Mr. Pruitt many opportunities to provide information to the Committee, including pre-hearing questions, the hearing itself, and post-hearing questions for the record to which Mr. Pruitt was required to submit written responses.  Much of his testimony was evasive and many of his written answers non-responsive. This lack of information forced the Democratic members of the Committee to take the extraordinary step of boycotting the committee vote on his nomination twice because the Committee Chairman refused to delay proceedings until Mr. Pruitt provided responsive answers to our inquiries. 

Mr. Pruitt’s lack of responsiveness as a nominee carries a particular irony in light of the following exchange, in which Committee Chairman John Barrasso inquired about how Mr. Pruitt would discharge his duties if confirmed as Administrator.

Question from Senator John Barrasso:  Do you agree to ensure that testimony, briefings, documents, and electronic and other forms of information are provided to this Committee and its staff, and other appropriate committees, in a timely manner?

            Answer from Mr. Pruitt: Yes, Mr. Chairman.

While many of us disagree with various policies Mr. Pruitt may pursue as Administrator, we write to the Court today because we need to understand whether in his current capacity Mr. Pruitt engaged with the industries that he will be responsible for regulating if he is confirmed as Administrator in ways that would compromise his ability to carry out his duties with the complete impartiality required.  These concerns are not merely speculative. 

Mr. Pruitt has a history of close and secret ties with the industries he will regulate at EPA.

In December 2014, the New York Times reported that Mr. Pruitt took a letter written by Devon Energy, an energy industry company that operates pollution-emitting sources and has maxed out to Mr. Pruitt’s political campaigns, put that letter on official Oklahoma Attorney General letterhead, and transmitted the letter as official correspondence to then EPA Administrator Lisa Jackson.  The documents on which the New York Times’ exposé was based were made public through an Open Records Act request.[1]

Second, we know from emails disclosed as part of that Open Records Act release to the New York Times that Mr. Pruitt provided demonstrably false claims at least once during his confirmation process.  When asked if anyone working on his behalf ever solicited money from the Republican Attorney Generals Association (RAGA), Mr. Pruitt responded “No one else working on my behalf has solicited funds for RAGA.” Exhibit A shows that Mr. Pruitt’s then chief of staff solicited money for RAGA from the American Petroleum Institute (API) in 2012.  According to a tax filing from the Republican State Leadership Committee, of which RAGA was then an arm, the following month API contributed $50,000.[2]  Plaintiff’s long-languishing November 2015 request is specifically for communications between Mr. Pruitt’s office and RAGA. 

Third, we know the emails released in response to Plaintiff’s January 2015 request are incomplete.  Per Plaintiff’s Status Report to the Court, filed February 14, 2017, at most 411 records were released in response to its January 2015 request compared to the over 3,000 that underwent final review.  At least 27 emails that were released in response to the New York Times request that should have been provided to Plaintiff are missing, including a handful between Mr. Pruitt’s office and Devon Energy.   

Mr. Pruitt has claimed he has no power over his office’s Open Records Act responses.

Senator Whitehouse raised Mr. Pruitt’s track record of responding to Open Records Act requests during the January 18th hearing.  Mr. Pruitt demonstrated a lack of familiarity with the backlog of work at his own agency during this exchange: 

Senator Whitehouse:  “Let’s talk about FOIA. You have had a conversation with the Chairman about FOIA. As I understand it, there is a FOIA request to the Oklahoma Attorney General’s office, to your office, for emails between your office and Devon Energy and Koch Industries and Americans for Prosperity, the Koch front group, and Murray Energy and the American Petroleum Institute. And the information that I have is that that Open Records Act request was filed more than 740 days ago. More than two years ago. That in response to it, your office has conceded that there are 3,000 responsive documents. Three thousand emails and other documents between your office and these companies. And that in 740 days, exactly zero of those documents have been produced.

“Is that acceptable turnaround on a FOIA request, and should we not be concerned that your office is not complying with a FOIA request that relates so specifically to so many of these companies that are going to be before you as EPA Administrator if you are confirmed?”

Mr. Pruitt: “Senator, I actually have a general counsel and an administrator in my office that are dedicated to performing or providing responses to Open Records requests.”

Senator Whitehouse: “Not very dedicated, if it takes 740 days. That is still zero.”

Mr. Pruitt:  “But I [am] not involved in that process. That is handled independently by the administrator and that general counsel in responding. So I can’t speak to the timeline and why it is taking that length of time. But I will tell you that our office works, we actually go across the State of Oklahoma in training with officials locally in compliance with FOIA and Open Records laws.”

Senator Whitehouse:  “-- your own training, because it doesn’t seem to be sticking very well.”

Mr. Pruitt: “The representation you made about the timeline, I don’t know.”

In answers to a follow-up written request for documents responsive to these pending requests, Mr. Pruitt refused to do anything to expedite the process. 

Question from Senator Sheldon Whitehouse: “The public and this Committee, in fulfilling our constitutional advice and consent duties, have a right to see information pursuant to the Open Records Act. Please produce all of the following material that has been requested under the Open Records Act prior to November 8, 2016: related to RAGA, RLDF, Liberty 2.0, Oklahoma Strong, and any other 527s, 501(c)(3), and 501(c)(4)s, including the State Policy Network and ALEC; correspondence with the fossil fuel and agriculture industries and any other industries regulated by EPA; any other material related to energy, environment, agriculture, and EPA.”

Answer from Mr. Pruitt: “If Open Records Act requests for such information have been made, as your question suggests, those requests will be answered in the normal course.”

Mr. Pruitt nevertheless told Senators to submit Open Records Requests to get the information they want.

After being made aware of his office’s Open Records Act backlog and acknowledging his office responds to requests in the order in which they are received, Mr. Pruitt told several Senators to submit new Open Records Act requests in order to get information about potential conflicts of interest. 

Question from Senator Tom Carper: “119. For each listed matter in which the State of Oklahoma has been a litigant or petitioner against the EPA, please provide any and all documents (including any and all written or electronic correspondence, audiotapes, electronic records, videotapes, photographs, telephone messages, voice mail messages, e-mails, facsimiles, daily agendas and calendars, information about meetings and/or discussions, whether in-person or over the telephone, agendas, minutes and a list of participants for those meetings and/or discussions, and transcripts and notes of any such meetings and/or discussions) from the date on which your office first began to prepare the litigation at hand, to the date of this letter, between you (or other employees of your office) and each representative of each non-governmental entity with whom you (or your office) communicated about the litigation.”

Answer from Mr. Pruitt:  “In order for you to receive a comprehensive response to a voluminous request of that nature, I would direct you to make a request of the Oklahoma Attorney General's Office under the Oklahoma Open Records Act.”

Question from Senator Ben Cardin: “29. Please provide all communications you had had with representatives of agricultural and other companies regarding water quality litigation between Arkansas and Oklahoma.”

Answer from Mr. Pruitt: “Such communications can be requested from the Oklahoma Office of the Attorney General through a request made to that office pursuant to the Oklahoma Open Records Act.”

Question from Senator Edward Markey: “Did you—at any time during your term as Attorney General—enter into a written or verbal contract for legal representation (whether compensated or pro bono) by one or more private attorneys not included on the list referenced in Subsection B of Title 74 Section 20i of the Oklahoma Statutes? If so, for each such contract:

  • Please provide a brief description of the contract, the circumstances necessitating the contract, and the amount—if any—paid under the contract (including details on any non-monetary benefits that you may have obtained, offered, been offered, or delivered in connection with the contract).
  • Please indicate if you entered into the contract with a private attorney not on the approved list because there were no attorneys on the approved list capable of providing the specific representation or for another reason. Please describe the process you followed in reaching a decision to enter into a contract with a private attorney not on the approved list. Please list the attorneys on the approved list that you considered hiring (and deemed incapable of providing the specific representation) before deciding to enter into a contract with a private attorney not on the approved list. For each attorney on the approved list that you considered and rejected, please describe the deficiencies in their capabilities that led you to reject them in favor of a private attorney not on the approved list.”

Answer from Mr. Pruitt: “Such information can be requested from the Office of Attorney General through a request made pursuant to Oklahoma's Open Records Act.” 

In fact, in response to questions Mr. Pruitt directed Senators to make their own Open Records Act requests 19 times.[3]

Senators continue to be stonewalled. 

When asked about basic information about the Open Records Act request backlog, Mr. Pruitt instructed Senators to contact his General Counsel.

Question from Senator Whitehouse: “According to a recent E&E article, your office has 52 outstanding open records requests. Please provide a list of all pending FOIA, Open Records Act or other similar information requests under Oklahoma state law, by whom, and when each was a filed.”

Answer from Mr. Pruitt: “I am not familiar with the pending requests. Such a requests should be directed to the Office of Attorney General's general counsel, who can provide such a list.”

Upon receiving this written direction, Senator Whitehouse contacted Sarah A. Greenwalt, General Counsel to the Attorney General of Oklahoma, seeking more information about the backlog and the Attorney General’s policy for responding for Open Records Act requests and outstanding requests that office was processing.  See Exhibit B.  Ms. Greenwalt’s response, attached as Exhibit C, converted part of Senator Whitehouse’s request into a new Open Records Act request, and referred other aspects to the office’s communications department, which has yet to provide a response.  In other exchanges between staff from Senator Whitehouse’s office and the Oklahoma Attorney General’s office, see Exhibit D, that Office essentially confirmed that any requests from the Senate would be handled in the order they are received. 

Plaintiff’s requests are of federal importance.

We are providing this information to the Court today because we have concluded Plaintiff’s pending Open Records Act requests may be the only means by which the Senate and the general public can obtain in a timely manner critical information about Mr. Pruitt’s ability to lead the EPA.  In most cases months or years before Mr. Pruitt’s nomination, Plaintiff submitted Open Records Act requests that are the subject of the instant action.  These requests seek communications between Mr. Pruitt and entities that he would regulate as Administrator, documents and communications relevant to litigation Mr. Pruitt has initiated against EPA, and other communications relevant to the Senate’s assessment of his ability to lead EPA impartially.

As the Act states, it is “the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.”  ORA § 24A.2.  The public interest of Oklahoma, as well as the United States, will be served by making these documents public, whether for consideration in advance of Mr. Pruitt’s confirmation vote, or for conducting effective oversight of EPA if he is confirmed.  Without court intervention, we fear the Attorney General’s office will continue to use the Open Records Act review process to shelter Mr. Pruitt from scrutiny, and not provide access to information the Senate and the public needs. 

Conclusion

For the reasons stated herein, we respectfully request you consider the Senate’s federal interest in disclosure as you assess whether to give Plaintiff full relief and order the prompt disclosure of all documents responsive to its requests. 

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