Department of Interior makes changes to FOIA during ‘down’ time

From American Society of News Editors

During one of the “downest” of downtimes in recent memory – on the Friday between Christmas and New Years during a government shutdown – proposed changes to the Department of Interior’s Freedom of Information Act (“FOIA”) regulations were published to the Federal Register. This opens a 30-day filing window during which interested parties can comment on the proposed changes. ASNE is very likely to file comments, either on its own or in conjunction with other journalism organizations and/or transparency advocates; given the detrimental impact some of these proposals may have on accessing records from the Department of Interior, ASNE members may want to file comments of their own as well (or, at the very least, otherwise report or opine on this action).

The Notice of Proposed Rulemarking (“NPRM”) recommends, among others, the following changes: https://www.govinfo.gov/content/pkg/FR-2018-12-28/pdf/2018-27561.pdf

• Allowing the agency to impose a monthly limit for processing records in order “to treat FOIA requesters equitably by responding to a greater number of FOIA requests each month” (which is unprecedented and potentially unconstitutional);
• Redefining time “limits” for responding under the law as time “frames” (as though these are not mandated response deadlines but instead recommended times for responding);
• Requiring that separate requests be sent to each component of an agency that might have responsive records and further noting that each individual agency component effectively acts as its own agency, refusing to forward your request to other components if they may have records (which will actually lead to an increase in overall requests and increased denials of requests);
•Significantly changing the law’s requirement that a requester “reasonably describe” the records sought by adding requirements to prohibit “extremely broad or vague” requests requiring research or those requiring agency to locate, review, redact, or arrange for inspection of a vast quantity of material (both of which are themselves broad and vague definitions giving rise to the possibility that the agency can interpret any request in a way that allows it to reject or delay the request);
• Removes requirement that processing begin within 10 days of receipt of the request itself (which will delay the receipt of records);
• Makes it harder to obtain records via expedited processing by creating several procedural hurdles that previously didn’t exist and adding substantive barriers as well;
• Increasing the burden on those seeking a fee waiver by allowing the agency to make value judgments as to how a request will serve the public interest in considering a fee waiver request while, at the same time, requiring the requester to state with more specificity how the request will contribute to public interest.

Again, these are just the most egregious changes; there are others. As far as we can tell, there is just one positive change: requesters who must appeal a FOIA denial will now have ninety days in which to file that appeal rather than the existing thirty days.

The Interior Department justifies these changes on “exponential increases in requests and litigation.” The NPRM cites a thirty percent increase in FOIA requests from Fiscal Year 2016 to Fiscal Year 2018, with the Office of the Secretary experiencing a 210% increase during that period. On the litigation side, there were 129 active cases in litigation at the close of Fiscal Year 2018 (which occurred on September 30, 2018), compared to just 6 at the end of FY 2015 and 30 at the end of FY 2016.

In other words, as interest in oversight of the activities of the Department of the Interior is at an all-time high, the Department wants to cap the amount of requests, give itself permission to take longer in responding to filed requests, limit expedited processing of requests, and make it harder to get fee waivers where the public interest demands. None of the proposed changes, it should be noted, are likely to make it easier for the Department to process existing requests. They all seem calculated, at first glance, to excuse the Department’s failure to follow the requirements of the Freedom of Information Act.

Comments are due on or before January 28, 2019. They can be filed via the Federal eRulemaking Portal, found at https://www.regulations.gov (follow the instructions on the website for submitting comments) or via U.S. mail, courier, or hand delivery (send to: Executive Secretariat-FOIA regulations, Department of the Interior, 1849 C Street NW, Washington, DC 20240).

 

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