Interior Department’s response to a FOIA backlog: Tighten access to records
Journalists who regularly use the Freedom of Information Act to get documents about how federal environmental laws are enforced may soon find records harder, and more expensive, to obtain.
Newly proposed regulations would allow the Interior Department to enforce caps on how many requests it will process from frequent FOIA users, make it more difficult for news organizations to justify having their FOIA fees waived, and relax internal deadlines for the agency to act on requests.
The Department says the changes are needed to help the agency, which oversees the management of public lands, dig out from a historically large backlog of requests for access to documents.
FOIA requests across all federal agencies have spiked since President Trump took office in January 2017, in part because journalists, archivists and historians were concerned that documents about Obama administration policies (such as those addressing global climate change) might be destroyed if not preserved.
The pressure has been acutely felt at the Interior Department, where Secretary Ryan Zinke was recently forced from office under accusations (some still under investigation) that he and his family took advantage of his Cabinet office for personal benefit. Documents obtained through FOIA requests have helped journalists document how Zinke and other Trump appointees are changing federal priorities, including favoring development over preservation in the management of federal land.
The Department reports that FOIA requests are up 30 percent over the past two years, and that as of the end of September 2018, 128 FOIA cases were actively being litigated.
Critics will contend that the litigation increase is self-inflicted, as agencies frequently bring on lawsuits themselves by excessively redacting documents or unduly delaying production. For instance, the Environmental Defense Fund sued the Department for failing to timely respond to a FOIA request seeking correspondence with the fossil-fuel industry about restrictions on the release of “waste” natural gas.
In a notice circulated Dec. 28, the Interior Department proposes greatly revising its FOIA compliance regulations, in what is described as an effort to expedite fulfillment of public requests. (For ease of comparison, the current regulation as it reads today is here.)
Some high-level highlights of the proposed changes:
- The Department will reserve the right to cap how many requests it will process from any particular requester in a given month. So journalists who regularly cover the Department may find themselves operating under a “FOIA quota.”
- Requesters will be under a greater burden to specify the exact “activity, operation, or program” they are asking about, and if they fail to do so, the request can be rejected.
- Time “limits” within which the agency must process a FOIA request are changed throughout the rule to time “frames,” indicating that the Department will no longer regard them as binding. For instance, if a requester sends a request to the wrong part of the Department, the agency will no longer promise to forward it to the correct recipient within 10 days. The proposal also removes any assurances associated with the various “tracks” to which the agency assigns requests based on their complexity. For example, the rule now says a “simple” request will take no more than five workdays to process; as revised, a simple request “would normally” take no more than five days. (Although requests seldom are fulfilled within the statutory deadline anyway, removing the regulatory “limits” has real consequences. Once an agency misses a deadline, the requester can treat the non-response as a denial and start the appeal process. If there is no deadline, the agency can forestall appeals — which also means forestalling lawsuits, since a requester normally must go through the agency’s appeal process before heading to court.)
- It will be harder for requesters to obtain relief from fees. Under the new regulation, the journalist seeking a fee waiver would have to show that the planned use of the records will “significantly” advance the public’s understanding of the agency, and that the same information is not already available elsewhere. Also, the journalist will have to show plans to contribute analysis to the documents, not just upload them to the web for public viewing. And the Department will have more leeway to categorize a request from a media organization as “commercial,” which disentitles the requester to a fee waiver.
- Journalists may find it more difficult to qualify for expedited processing. Under the new regulation, it no longer will be presumed that a request merits speedier handling just because the journalist asserts that the records are needed for a time-sensitive breaking news story.
Any change to an agency’s FOIA interpretation must be consistent both with the FOIA statute and with the Constitution, and if the changes are enacted as proposed, a challenge is likely on both grounds.
Coincidentally, the Department’s rulemaking notice coincides with publication of an unorthodox special section in The New York Times (headlined in print, “This is our reality now”) that catalogs all of the changes in federal policies and regulations enacted since January 2017 that prioritize industrial development over preservation of natural resources. The articles focus on the public-health impacts of chemical exposure — in West Virginia coal mining towns, North Dakota gas-producing communities and elsewhere — that could be ameliorated with more aggressive federal enforcement.
The Interior Department is taking public comments on the FOIA regulation through Jan. 28. They can be filed electronically by referencing Docket No. DOI-2018–0017. By law, federal agencies must show that they took account of public input before they can finalize enacting or amending a regulation.
Attorney Frank D. LoMonte is a professor of media law at the University of Florida and director of the Brechner Center for Freedom of Information, a think-tank focused on improving the public’s access to civically useful information.