Society of Environmental Journalists P.O. Box 2492 Jenkintown PA 19046 Phone: (215) 884-8174 Fax: (215) 884-8175 sej@sej.org www.sej.org VIA ELECTRONIC MAIL AND WWW.REGULATIONS.GOV Mr. Kevin Hagerty DATE: Jan. 7, 2009 U.S. Department of Energy, Office of Information Resources Mailstop MA-90, Room 1G-051 1000 Independence Avenue, SW. Washington, DC 20585 SUBJECT: RIN 1901-AA32: Proposed Amendments to 10 CFR Part 1004, 1004.1 and 1004.9 (a) (4) of Department of Energy Regulations relating to agency compliance with the Freedom of Information Act, Proposed at 73 F.R.74658-74661 (Dec. 9, 2008). SUMMARY As more fully explained below, The Society of Environmental Journalists ("SEJ") opposes the following Department of Energy proposed amendments to 10 CFR 1004.1 and 1004.9 (a) (4): 1) Elimination of the so-called "extra balancing test" found in 1004.1 which states: "To the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under 5 U.S.C. 552 whenever it determines that such disclosure is in the public interest." 2) Amendment of 1004.9 (a)(4) to raise the per page rate to be imposed on some FOIA requesters for "paper copy reproductions" and "microform to paper copies" from 10 cents to 20 cents per page. BACKGROUND OF COMMENTER Founded in 1990, the 1,500-plus-member Society of Environmental Journalists (SEJ) is North America's largest and oldest organization of individual working journalists, educators and students dedicated to improving the quality, accuracy and visibility of environmental reporting. SEJ programs and services include annual and regional conferences; daily EJToday news service; quarterly SEJournal; biweekly TipSheet; diversity program including Latin America initiative; members-only listserves; annual SEJ Awards for Reporting on the Environment; mentoring program; gatekeeper project and other special initiatives. Working through its First Amendment Task Force and WatchDog Program, SEJ addresses freedom of information, right-to-know and other news-gathering issues of concern to journalists reporting on environmental topics. DETAILED COMMENTS Proposed Amendment to 1004.1 SEJ members and other journalists regularly use the Freedom of Information Act to procure documents from the Department of Energy ("DOE"). These documents obtained pursuant to the FOIA assist SEJ members in better informing the public about the actions of the Department so that citizens may be better able to judge the DOE's performance of its many important duties and statutorily mandated responsibilities. Both of the proposed amendments to 10 C.F.R. Part 1004 would result in less disclosure of information to which SEJ members and the public are entitled --- contrary to the Congressional intent underlying the FOIA. The Department of Justice's FOIA Guide aptly describes Congress' intent: [T]he FOIA firmly established an effective statutory right of public access to executive branch information in the federal government. The principles of government openness and accountability underlying the FOIA, however, are inherent in the democratic ideal: "The basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." U.S. Department of Justice, Freedom of Information Guide (March, 2007). The DOJ Guide emphasizes that "disclosure [is] the animating objective . . . that the FOIA seeks to achieve . . . ." Moreover, the deletion of the 30 CFR 1004.1 "balancing test" will reduce public understanding of the FOIA and citizen's rights thereunder --- contrary to the mandate of Executive Order No. 13,392 (December 14, 2005) and the purpose of the FOIA. In Section 1 of Executive Order No. 13,392, President Bush ordered federal agencies including the Department of Energy to adhere to the following policy: (a) The effective functioning of our constitutional democracy depends upon the participation in public life of a citizenry that is well informed. For nearly four decades, the Freedom of Information Act (FOIA) has provided an important means through which the public can obtain information regarding the activities of Federal agencies. . . . (b) . . . in responding to a FOIA request, agencies . . . shall provide FOIA requesters, and the public in general, with citizen-centered ways to learn about the FOIA process . . . . 70 F.R. 75373 (December 19, 2005) (emphasis supplied.) The 10 CFR 1004.1 "balancing test" was promulgated to advance the purpose of the FOIA to emphasize to agency officials and the public that the Department of Energy, in many cases, has the discretion to disclose information when its release is in the public interest, even though the Act permits withholding. In contrast, DOE's explains the rationale underlying its proposed amendment of 1004.1 is to delete a sentence that contains an "extra balancing test" that "does not alter the outcome of the decision to withhold information, as DOE already incorporates Department of Justice guidance in applying exemptions when determining whether or not to make a discretionary release of information." 73 F.R. at 74658. The DOE proposal states that it "is proposing to remove the extra balancing test, because it goes beyond the requirements of the FOIA, and imposes unnecessary administrative requirements on DOE." The DOE's rationale for deleting the balancing test has no basis in law or in fact. The existing rule makes clear that it "contains the regulations of the Department of Energy (DOE) that implement 5 U.S.C. 552 . . . ." Thus, when the regulation was first promulgated, the DOE itself confirmed that the existing "balancing test" contained in 1004.1 implements the DOE's obligations under FOIA, contrary to DOE's statement in the current proposal that it "goes beyond the requirements of the FOIA." Moreover, the sentence proposed to be deleted from 1004.1 is not an "extra" balancing test. Rather, it implements existing FOIA law and policy, making clear to citizen FOIA requesters and to DOE officers making decisions on such requests that the agency has a significant measure of discretion and is not mandated by law to withhold all information that may fall within a specific FOIA exemption. In fact and in law, the current 1004.1 does precisely what the Supreme Court of the United States and the Justice Department's FOIA guidance require. The existing language of 1004.1 "provide[s] FOIA requesters, and the public in general, with citizen-centered ways to learn about the FOIA process . . . furthers "the FOIA's statutory objective . . . of achieving "the fullest responsible disclosure . . . ," and the public's right "to the fullest practicable information regarding the decision-making processes of the Federal Government." If 1004.1 is simply a reiteration of the mandate of FOIA as set forth in Department of Justice FOIA guidance, then the section does not and could not "impose an additional burden on DOE to reconsider a determination to legally withhold information in accordance with 5 U.S.C. 552" as DOE states in its rule amendment proposal. The DOE must necessarily undertake precisely what the 1004.1 "balancing test" requires if it is complying with DOJ guidance. DOE's proposal also asserts "the imposition of an extra balancing test is cumbersome and unnecessary." This assertion again misstates the purpose of the 1004.1 sentence proposed to be deleted. The sentence cannot and could not be either cumbersome or unnecessary. It is not cumbersome because, as DOE admits, the agency is required to follow DOJ guidance. It is not unnecessary because it implements the Executive Order goals of educating the public as to citizens' rights under the FOIA and Congressional intent to allow the fullest possible disclosure of government information. In sum, taking DOE's assertions at face value, the existing language of 1004.1 restates existing law and thus is in no way cumbersome or unnecessary. It certainly does not, as DOE asserts, go "beyond the requirements of the FOIA," nor does it "impose unnecessary administrative requirements on DOE." Any amendment to existing substantive regulations must be accompanied by a rational explanation for the change. See e.g. SEC v. Chenery, 318 U.S. 80 (1943); Motor Vehicle Manufactures' Ass'n. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983). DOE's proposal to delete the last sentence of 1004.1 is based on bald unsupported assertions that the provision has created for the DOE an extra, cumbersome, unnecessary burden. Without documentation on workload, number of requests that fall into this category, cost of the existing rule, and other relevant factors, the proposed change lacks adequate support in the rulemaking record. The SEJ believes that the existing "balancing test" language of 1004.1 ensures that the public is properly informed about citizens' rights under FOIA and makes clear to DOE decision-makers that withholding is not mandatory in every case although information may fall within a FOIA exemption. Indeed, DOE in its earliest days made some exemplary decisions specifically to serve the public's interest in disclosure, in particular its unprecedented declassification of records detailing the government's use of American citizens in human radiation experiments. Also, because DOE did not come into existence until many years after other agencies had promulgated their FOIA regulations, the agency was able to make a clear regulatory commitment to openness, benefiting from the experience of other agencies and improving upon the language of rules adopted earlier by other agencies. Proposed Amendment to 1004.9 (a)(4) The SEJ also opposes the proposed change to the fee schedule in current 1004.9(a)(4). DOE proposes to raise the prices of paper and microform copies to 20 cents per page. The proposed amendment would violate the mandate of the FOIA for the simple reason that it does not cost DOE 20 cents to photocopy a page of information. The FOIA does not permit DOE to charge more than the actual cost of reproduction as a copying fee. The rulemaking record, once again, is devoid of any factual basis for the increase in copying charges beyond the bald unsupported (and erroneous) representation that all other executive agencies charge a twenty-cent per page copying fee. In addition, the proposed increase in costs above the actual cost of reproduction will place an unnecessary obstacle for citizens seeking to use FOIA to communicate matters of great public importance to the public. Furthermore, while we have not done an exhaustive search and examination of fees charged by all executive agencies, our survey of departments where SEJ members frequently file FOIAs shows they are lower than the proposed rate: 15 cents a page at the U.S. Environmental Protection Agency and the Federal Energy Regulatory Commission; 13 cents a page at the Bureau of Land Management, the Minerals Management Service and the Department of the Interior. We also randomly spot-checked two large agencies where our members are less likely to file FOIA requests. The Department of Defense and the Department of Education both impose a copying charge of only 15 cents per page. While it may be true that, as a practical matter, most requesters are entitled to a waiver of fees under 10 CFR 104.9(b) (1)-(3), this does not obviate the fact that some requesters, including freelance journalists among SEJ membership, may be required to pay copying fees in certain instances. The bottom line with regard to the proposed increase in DOE copying charges is that it does not cost 20 cents to copy a piece of paper. FOIA authorizes DOE to charge no more than the actual copying cost of information requested under the FOIA. Requesters are not required to pay DOE's overhead. The Proposed Amendments Constitute "Significant Regulatory Action" under Executive Order 12866 In SEJ's view, DOE has erred in determining that this is not a "significant regulatory action" under Executive Order 12866 58 FR 51735 (Oct. 4, 1993) as amended by Executive Order 13258, 67 FR 9385 (Feb. 26, 2002). This action should be subject to review under that order by the Office of Information and Regulatory Affairs of the Office of Management and Budget. SEJ Requests SEJ respectfully requests that DOE withdraw the proposed amendments to 10 CFR 1004. If DOE will not agree to withdraw the proposed amendments, SEJ asks that it delay a final decision on promulgation of the proposed amendments until the new Presidential administration assumes office on January 20, 2009 --- a scant 11 days following the close of the comment period. At the very least DOE can postpone its action on this rule change for six months while the Obama administration begins its work. There is a widespread expectation that the new administration will err on the side of public disclosure --- which is in direct contradiction to the direction these proposed rule changes would take. We thank you for the opportunity to submit these comments. Sincerely, Christy George, President Society of Environmental Journalists Ken Ward, Jr., Chairman SEJ First Amendment Task Force