SEJ Urges Energy Department To Drop New Secrecy Rule

January 14, 2009

The Society of Environmental Journalists has urged the Energy Department to abandon a new rule making it easier for the agency to deny or resist Freedom of Information Act requests.

SEJ, working through its Freedom of Information Task Force, submitted formal comments January 7, 2009, to the record in DOE's rulemaking on the subject. The rule, proposed by the Bush administration at the 11th hour — Dec. 9, 2008 — would do away with a current requirement that DOE balance its desire for secrecy against the public interest.

The change would eliminate language allowing DOE to disclose some information requested under FOIA when it had discretion to do so and considered disclosure to be in the public interest.

The effect would be to institutionalize a Bush administration directive, known as the "Ashcroft Memo," encouraging agencies to withhold information whenever they had discretion to do so. This directive is considered likely to be overturned early in the Obama administration.

The proposed DOE rule would also raise copying fees for released material from 10 cents per page to 20 cents per page — an unusually high rate, well above prevailing practice at other agencies and well above DOE's actual costs. The law prohibits DOE from charging more than its actual copying costs.

SEJ argued that the balancing test in existing DOE rules was in fact not "extra," as DOE claimed, but established under the law. The letter, signed by SEJ President Christy George, pointed to a number of other legal errors made by DOE in the proposal. SEJ urged DOE to withdraw the proposal or to delay finalizing it until the incoming Obama administration could consider it.