MuckRock asked Russ Kick, the investigative archivist behind the Memory Hole and AltGov2, to offer his thoughts on the Department of the Interior’s proposed changes to how it would handle FOIA requests - and what we can do to push back against it.
The Department of the Interior wants to drastically change how it deals with Freedom of Information Act requests. To do that, it had to make a proposal, published in the Federal Register, that the public can comment on for 30 days. In theory, it has to consider this input before finalizing any changes to its FOIA regulations.
That proposal was published on December 28th, 2018, which is 1) a Friday 2) in the middle of the week between Christmas and New Year’s Day 3) during a government shutdown. Any one of those is a tried-and-true way to slip something past the public, but all three simultaneously? That is the trifecta of bureaucratic underhandedness.
So, now that the holidays are behind us for another year, let’s take a look at Interior’s FOIA wishlist, which is primarily designed to hobble requesters and solidify the department’s power. (To make it easier to see the many changes Interior wants, I’ve created a redline version of their currently FOIA regulations, with added language in bold and deletions in strikethrough, which you can see here.)
Rejecting “burdensome” requests
This is the portion of Interior’s proposal that has generated the most outrage in news articles and social media. Specifically, Interior wants to add the following language to its regs: “The bureau will not honor a request that requires an unreasonably burdensome search or requires the bureau to locate, review, redact, or arrange for inspection of a vast quantity of material.”
People are furious about this, which is the correct reaction, but here’s the thing - agencies are absolutely allowed to do this. It’s called the undue burden doctrine, and it’s settled case law. In FOIA lawsuits, the courts have consistently ruled that agencies can indeed reject a request if the time and effort involved in searching for records would be “unreasonable” (to use a word that shows up in several decisions).
So, what exactly qualifies as “unduly burdensome” and “unreasonable”? There’s no concrete definition, so the courts take this up on a case-by-case basis. But even when an agency loses a specific case and is thus forced to process a request, the courts uphold the overarching principle that some requests can be bounced due to the burden of searching.
Because this is a settled legal matter, Interior doesn’t have to add it to its regulations, but the fact that it’s doing so anyway makes me nervous. The department seems to be formalizing a number of things that had been left unspoken. That tells me that it plans to increasingly invoke its maximum power to deny and delay.
Monthly limits
Interior wants to put this sentence in its regs: “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.” This seems to go beyond what FOIA and related case law allow. I’m not aware of agencies being empowered to cap the number of pages they process per month for a given request. I’ve always assumed that they informally slow-walk huge requests, but to see it formalized is concerning. How big does a request have to be to get a monthly cap? What’s the maximum number of pages an Interior agency will process in a month for a request? Will requesters be informed that their requests are being treated this way?
The language uses “request” singular, indicating that each request will be treated separately, but what if you have two huge requests? Will the agency really process the max for each of those two requests, or will it combine them into one monthly limit? If you have one huge request, one somewhat big request, and 22 fairly small requests, will the cap just apply to the huge one, or will it creep outward to limit your monthly total as an individual? Some specific assurances here would be good, but regardless, this new limitation on FOIA processing needs to be smothered now, before it gets added to the regs
Raising that bar
Here’s the changed language about writing a request for expedited processing: “Explains in detail how all elements and subcomponents of your request meets each element of one or both of the criteria in paragraph (a) of this section.”
It’s not enough that you explain how your request meets one or both criteria for expedited treatment. Now you’ll have to explain how each and every element of your request meets each and every element of one/both criteria. Prepare to write a 5,000-word essay, I guess.
Breaking news, shmeaking news
When discussing what kind of requests could qualify for expedited processing, the regs currently say: “The requested information must be the type of information which has particular value that will be lost if not disseminated quickly; this ordinarily refers to a breaking news story of general public interest.” But Interior wants to chop everything after the semicolon.
They don’t want language that formalizes the expedite-worthiness of breaking new stories.
Mother, may I?
So here’s a crafty addition that takes power away from each agency and hands it to the attorneys at Interior headquarters: “Bureaus will consult with the Office of the Solicitor before granting expedited processing requests …”
So the FOIA staff at every Interior agency will have to get permission from HQ to expedite your request. Permission denied = expedited request denied.
Keep raising that bar!
It isn’t only expedited processing that will become harder to attain. The goalposts for fee waivers are also being moved backwards. Here’s one entirely new sentence, on top of all the existing requirements: “The subject of the request must concern discrete, identifiable agency activities, operations, or programs with a connection that is direct and clear, not remote or attenuated.”
The next paragraph of the existing regs says that you must address and meet the following criterion: “How disclosure is likely to contribute to public understanding of those operations or activities”. But Interior wants to add “significantly” after “contribute.” So it’ll no longer be good enough that disclosure contributes to public understanding - it must “significantly contribute.” Feel that bar getting higher?
Journalists beware
Under FOIA, to get a fee waiver, the release of documents must not be primarily in your commercial interest. In keeping with this, Interior currently says: “If you are a representative of a news media organization seeking information as part of the news gathering process, we will presume that the public interest outweighs your commercial interest.” But … they plan to qualify that by inserting “ordinarily” before “presume.”
You pesky journalists aren’t automatically getting fee waivers. Ordinarily, sure. But it’s not a given anymore.
Value judgments are A-OK
In the section titled “When will the bureau waive fees?,” Interior wants to flat-out delete the final paragraph: “The bureau must not make value judgments about whether the information at issue is ‘important’ enough to be made public; it is not the bureau’s role to attempt to determine the level of public interest in requested information.”
I guess value judgments about importance and determinations regarding public interest will be allowed. The only reason to strike this existing language is to put these back on the table.
No free piggybacks?
Then there’s this lengthy addition to the section: “the disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public’s understanding.”
Why is it necessary to state this? Is Interior planning to deny fee waivers for piggyback requests, where people request material that was released to someone else? The only reason to file a piggyback request is because someone else got documents through FOIA but didn’t post them, meaning that no one else has access to them.
The end of emailing requests?
Interior’s proposal deletes specific mention of making FOIA requests via email and adds language about “electronic portals,” “physical addresses,” and “other appropriate FOIA contact.”
That last phrase leaves open the door for agencies to keep accepting emailed requests, but it also means that any given agency could stop accepting emailed requests and still be within the regs. Making requesting less convenient by taking away a popular option can’t be a good thing.
Wiggling
When listing the lengths of time that simple, normal, complex, and “extraordinary” requests take to fulfill, Interior wants a lot of wiggle room. For example, the regs currently say: “Normal: requests in this track will take between six to twenty workdays to process”. But Interior wants to change “will” to “would generally.” It’s the same for all four request categories.
This does reflect reality a tiny bit more closely, but it also gives Interior legal cover. The regs no longer say that requests will get completed in a certain amount of time, only that they generally would. (And what’s with the weird tense of “would”? Why not simply say “will generally”? I guess it adds another layer of haziness.)
Speaking of wiggle room, Interior also wants all 16 instances of “time limit” changed to “time frame.”
Limits are just so … limiting. They imply an unyielding point after which something is late, and this has legal implications. Better to have a nice, nebulous frame.
The full proposed regulations are embedded below.
The Prequel: FACT attack
Let’s not forget that this isn’t the only dramatic action Interior has recently taken regarding FOIA. The Tuesday before Thanksgiving (again using a major holiday as cover), Ryan Zinke, the Secretary of the Interior at the time, issued an order dramatically restructuring Interior’s FOIA system.
With his fiat, Zinke created a new commission out of whole cloth: The FOIA Assistance Coordination Team (FACT) is a centralized body that will “provide strategic direction for selected FOIA requests that impact Department-level interests.” In other words, when any Interior agency gets a politically sensitive request that might embarrass Interior, FACT will decide how to handle it, not the agency. Who’s on FACT? The top attorney and top two FOIA officials at Interior headquarters. If he so deigns, the Deputy Chief FOIA Officer is allowed (but not required) to bring in FOIA staff or program experts from the agency that received a given request under scrutiny.
Wait, Deputy Chief FOIA Officer? I didn’t know Interior has that position. Well, that’s something else that Zinke created out of thin air. He made up this powerful role whose duties include “establishing FOIA policies, procedures, and practices, and directing the activities of the FOIA program throughout the Department” (which includes the individual agencies). And check this out: “The DCFO may also assume control over any aspect of any FOIA request in the Department, with the exception of those sent to the Office of the Inspector General (OIG).” The DFCO, naturally, reports directly to the Chief FOIA Officer.
And who did Zinke install as Chief FOIA Officer? That would be Koch Brothers operative Dan Jorjani.
Say, who issued that proposed kneecapping of FOIA that I detailed above? That would be Dan Jorjani.
Russ Kick is a transparency activist and investigative archivist who posts his finds at AltGov2. He’s also a writer and anthologist, most recently of The Graphic Canon series.
Image via Department of the Interior Flickr
