WatchDog: Under Siege from Ethics Probes, Interior Dept. Proposes Gutting Rules on Open Records
The Interior Department, in a low-profile move deep in the holiday lull and a week after the start of the record-long government shutdown, quietly proposed altering its Freedom of Information Act regulations to allow it to essentially turn down almost any FOIA request it didn’t like.
The proposed rule change would not only impose limits on how much information a requester could ask for, but also authorizes Interior to refuse requests it found “burdensome” or “unreasonable.” Both are restrictions that FOIA law does not allow.
Word of the proposal has since prompted a coalition of major journalism groups to join forces and object, among them the Society of Environmental Journalists and the Reporters Committee for Freedom of the Press. The groups filed their objections Jan. 28, at the close of the comment period for the proposal, which was originally published in the Federal Register on Dec. 28, 2018.
SEJ separately filed its own comments objecting to the proposal. The text of SEJ’s comments is here.
The move comes as Interior is still reeling from the December resignation (may require subscription) of then-Secretary Ryan Zinke amid more than a dozen investigations. Some journalistic probes of Zinke’s ethics scandals have been aided by records acquired under FOIA.
Both news media and environmental groups had criticized Zinke’s Interior for secrecy during his tenure. Environmental groups sued over it. Zinke’s calendars, which had to be released under FOIA, did not show all his meetings with regulated industries.
‘Political troubleshooter’ appointed FOIA czar at Interior
Concerns about political short-circuiting of FOIA at Interior had arisen at least a year earlier, in December 2017. An article in the Washington Post by Dino Grandoni and Juliet Eilperin detailed how officials in Zinke’s immediate office had seized control of FOIA requests (may require subscription) to Interior’s far-flung bureaus about the review of national monuments and other sensitive matters.
Decisions about what records to release
are not supposed to be made on political grounds —
but rather by career FOIA officials following criteria
spelled out clearly in the law and regulations.
Under the letter of the FOIA law, decisions about what records to release are not supposed to be made on political grounds — but rather to be made by career FOIA officials following criteria spelled out clearly in the law and regulations.
Recent revisions to FOIA have required each agency to designate a chief FOIA officer, who is supposed to be responsible for ensuring that FOIA is actually complied with.
Little notice was paid in Nov. 2018, however, when Zinke issued an order (subscription required) appointing the department’s solicitor as chief FOIA officer. It may have escaped notice because it was issued right before Thanksgiving.
Since President Donald Trump had yet to nominate a political appointee to the Senate-confirmed position of solicitor, the role fell to the incumbent principal deputy solicitor, Daniel Jorjani.
Jorjani was already known (may require subscription) as a political “troubleshooter” at the agency. Before his return to Interior in the earliest months of the Trump administration, he had served as a top official in the empire of conservative billionaire Charles G. Koch.
Scarcely a month after Jorjani was appointed as Interior’s FOIA czar, the proposal for new Interior FOIA regulations came out — signed by Jorjani himself.
Proposed rule change cites ‘overload’
Interior already had extensive regulations detailing how it would carry out FOIA, as virtually all agencies do. Now, after the Jan. 28 closing of the public comment period, Interior can finalize the proposed rule, although the change may well be challenged by lawsuits.
The proposal begins with a narrative about a purported overload of FOIA requests that allegedly makes it necessary for Interior to stop complying with FOIA. Yet, according to SEJ, Interior’s claim of an overload is based on flawed information and undermined by its failure to acknowledge that its FOIA problems are of its own making.
In its comments on the proposal, SEJ wrote: “The Department asserts that the proposed regulatory change is warranted because of an ‘exponential’ increase in FOIA requests and litigation. Yet the Department’s own data fail to support that claim — a 30 percent increase in FOIA requests across the entire Department from FY2016 to FY2018 is far from exponential.”
Interior’s Office of the Secretary experienced the largest increase in requests since 2016: 210 percent (still technically not exponential). That should come as no surprise given the dozen-plus ethics investigations that have dogged former Secretary Zinke.
“As the clouds of controversy and scandal grew over the Secretary,” SEJ noted, ”so did the interest of journalists and the public in seeking documents that might prove the truth or falsity of those allegations.”
Interior admitted the reason for its growing backlog was that it had increased its processing of requests by less than 8 percent as requests grew 30 percent during the two years Trump has been in office. The agency argued that one reason it couldn’t respond to so many requests was an increase in litigation — but then in what appears a classic Catch-22, said many of the lawsuits came because it wasn’t responding to requests.
The option of adding a few staff to speed processing is not considered in Interior’s proposal. Instead, it argues that “The Department’s FOIA processing … must be more efficient if the Department is to meet its statutory obligations.”
But the FOIA law obligates Interior to produce any record not covered by a statutory exemption. It also obliges agencies to provide information and to err on the side of disclosure — the “presumption of openness” in 52 USC (8)(A)(i).
Per SEJ and others, the proposed Interior rule creates a series of new extralegal excuses to deny FOIA requests, working against the core purpose of the law itself.
Key points in proposed rule change
Critics of Interior’s proposed changes say they introduce vague and arbitrary tests for determining whether a FOIA request will be honored. Here are some of the changes proposed in the new rule:
- Interior staff wouldn’t process any request that requires what it calls an “unreasonably burdensome search.” SEJ said this phrase perverts the wording of the existing law, which requires that agencies “shall make reasonable efforts to search” for responsive records. But the Interior proposal would shift the burden of reasonableness from the agency to the requester. Nowhere is the term “unreasonably burdensome” defined. It would give the department a subjective pretext for not even trying to find responsive records, opponents worry.
- Interior could reject any request that requires it “to locate, review, redact or arrange for inspection of a vast quantity of material.” Since the proposal does not define what quantity is “vast,” it leaves this determination up to the arbitrary judgment of Interior political officials — FOIA law allows for no such limits.
- The proposal declares: ‘‘The bureau may impose a monthly limit for processing records in response to your request in order to treat FOIA requesters equitably by responding to a greater number of FOIA requests each month.’’ Again, the law allows for no such limits, which could allow Interior to “slow-walk” queries that might reveal embarrassing or controversial information.
- The proposal would require that all Interior bureaus consult with the Office of the Solicitor before granting requests for expedited processing of a FOIA request. Critics argued this bureaucratic delay would mock the law’s provision for expediting requests, since such requests often come from news media under deadline pressure in situations where public health and safety is at stake. Political appointees in the solicitor’s office could manipulate coverage by denying legitimate requests.
- Interior’s proposal narrows the existing definition of “Representative of the News Media” by excluding news outlets that simply distribute copies of released records. FOIA grants special rights such as fee waivers to news media. While this change might help fence out commercial brokers, it would also hamstring legitimate watchdogs like MuckRock. Mainstream muckraking news media do often disseminate raw records as part of larger editorial projects.
Journalism groups protest proposal
SEJ submitted formal comments objecting to newly proposed restrictions in the official rulemaking docket, which closed Jan. 28. One place to see this is online here, where you will eventually be able to see the proposal and all submitted comments.
‘The proposed rule would violate
the spirit as well as the letter
of the Freedom of Information Act’
“The proposed rule would violate the spirit as well as the letter of the Freedom of Information Act,” SEJ said in its comments. “It would effectively make it harder for journalists and the public to obtain documents and information on how DOI [Department of the Interior] is managing America's lands, water, wildlife, and energy resources.”
SEJ told Interior that “the proper remedy” to the challenging upsurge in information requests “is to increase resources for processing FOIA requests, including by adding staff. Promptly fulfilling requests, as the law requires, rather than looking for excuses to deny them or kick them back to the requesters, would reduce the backlog, and the litigation.”
Added SEJ: “Moreover, the Department may reduce its FOIA burdens substantially by embracing more transparency in disclosing what it’s doing or considering and why. As one small example, if the Secretary’s full calendars of activities and meetings were fully and promptly posted online in advance and every day, nobody would have to FOIA them. Voluntarily and proactively posting agency information — as mandated under § 552(a) — is a far better way of reducing FOIA requests and litigation.”
A coalition of 39 journalism groups signed on to another set of comments filed by the Reporters Committee for Freedom of the Press, or RCFP. SEJ emphasized its objections by signing on to this set of comments as well. Those comments are online here.
Groups signing the RCFP comments included:
The Reporters Committee for Freedom of the Press
American Society of News Editors
The Associated Press
Associated Press Media Editors
Association of Alternative Newsmedia
The Center for Public Integrity
Dow Jones & Company, Inc.
The E.W. Scripps Company
First Look Media Works, Inc.
Gannett Co., Inc.
Inter American Press Association
International Documentary Assn.
Investigative Reporting Program
Investigative Reporting Workshop at American University
The McClatchy Company
The Media Institute
MPA – The Association of Magazine Media
National Freedom of Information Coalition
National Newspaper Association
The National Press Club
National Press Club Journalism Institute
National Press Photographers Association
National Public Radio, Inc.
New England First Amendment Coalition
The New York Times Company
Online News Association
Radio Television Digital News Association
Reporters Without Borders
Reveal from The Center for Investigative Reporting
The Seattle Times Company
Society of Environmental Journalists
Society of Professional Journalists
Tribune Publishing Company
Tully Center for Free Speech
* From the weekly news magazine SEJournal Online, Vol. 4, No. 5. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.