Fake News, Trump and the Freedom of Information Act

The neverending lies and misdirections of the liberal media

Outgoing United States Secretary of the Interior Ryan Zinke

A story doing the rounds claims that the Trump administration is taking advantage of the government shut-down to change the rules by which the Department of the Interior processes and responds to FOIA requests. This story could not be less accurate if they were actively trying to mislead people. As a long-time FOIA journalist, I explain how the Act really works and why the proposed changes will make little difference to citizens’ rights and ability to get information from the US government.

CommonDreams, a liberal Democrat-supporting news site, allege that ‘Under Cover of Shutdown, Trump Admin Quietly Moves to Deprive ‘American People of Their Right to Know What Government Is Doing’. They refer to proposed changes in the regulations governing how the Department of the Interior respond to Freedom of Information requests.

Dept. of Interior FOIA Changes Have NOTHING To Do with the Trump Administration

The first problem with this claim is that these changes have nothing — nothing whatsoever — to do with the Trump administration. As the Federal Register makes clear:

In late 2012, the Department published a final rule updating and replacing the Department’s previous Freedom of Information Act (FOIA) regulations. In early 2016, the Department updated that final rule, primarily to authorize the Office of Inspector General (OIG) to process its own FOIA appeals. In late 2016, the Department updated that final rule again, primarily in response to the mid-year enactment of the FOIA Improvement Act of 2016.

These changes are a (belated) response to the FOIA Improvement Act of 2016, which was enacted by the Obama administration, not the Trump administration which didn’t even take office until the start of 2017. If Jessica Corbett of CommonDreams had actually read the document she links to in her article, she would know this. But that would interfere with the liberal media’s kneejerk compulsion to blame any and all problems on Trump.

Meanwhile the Guardian quote Jeremy Nichols, the climate and energy program director at WildEarth Guardians, saying:

This is a war on transparency. This is a calculated attempt to shield the interior department from scrutiny, to shield it from watchdogs, and to shield it from accountability.

Likewise The Hill quoted Nada Culver, senior counsel at The Wilderness Society:

They are depriving the American people of their right to know what the government is doing — they are only going to cause themselves more fights and more litigation.

While all of these stories referenced the proposed changes being published in the Federal Register, none of them felt it appropriate to mention that the changes are the result of legislation enacted by the Obama White House and not the Trump White House.

The New Rules Don’t Make It Harder to Get Information, Though They May Mean It Takes Even Longer

The second major problem with this story is that the new rules don’t make it any harder for requesters to get information. FOIA expert Russ Kick of AltGov2 has provided a simple and straightforward amalgamation of the existing regulations and the proposed changes.

For example, one change requires the Department of the Interior to provide FOIA email contacts for its different bureaus. This actually makes it easier to get in contact with them and file requests.

Another change, which the liberal media organs have objected to, says:

You must describe the records you seek sufficiently to enable a professional employee familiar with the subject to locate the documents with a reasonable effort. Extremely broad or vague requests or requests requiring research do not satisfy this requirement. 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.

This has, in fact, always been the case. I’ve had numerous requests rejected, both before and after the 2016 Act, for being too broad or vague or burdensome. This is not, in any way, a departure from existing practices.

One further change is to the timescales for responding for various different categories of request:

The basic processing tracks are designated as follows:
(1) Simple: requests in this track w̶i̶l̶l̶ ̶would generally take between one to five workdays to process;
(2) Normal: requests in this track w̶i̶l̶l̶ ̶would generally take between six to twenty workdays to process;
(3) Complex: requests in this track w̶i̶l̶l̶ ̶would generally take between twenty-one workdays and sixty workdays to process; or
(4) E̶x̶c̶e̶p̶t̶i̶o̶n̶a̶l̶/̶V̶o̶l̶u̶m̶i̶n̶o̶u̶s̶Extraordinary: requests in this track involve very complex processing challenges, which may include a large number of potentially responsive records, and w̶i̶l̶l̶ ̶would generally take over sixty workdays to process.

Under the FOIA, agencies are supposed to respond to requests within 20 working days. If they require longer to locate and review potentially responsive information then they are obliged to write to the requester invoking an extension. Again, this is nothing new, and changing ‘will take 20 days’ to ‘would generally take 20 days’ makes little difference because government agencies routinely flaunt these deadlines.

What FOIA Is Actually Like

For example, I am still waiting for a proper response to a request I sent to the US Coast Guard in March 2016. Despite numerous follow-ups and requests for an estimated completion date, the Coast Guard simply ignored me for over a year. When they finally (over two years after I filed the request, and only after I threatened a lawsuit) located several hundred pages of responsive documents they claimed they couldn’t release even a single page.

I appealed this finding, and the Commandant of the Coast Guard found in my favour, remanding my request for re-processing. That was in November. Despite several follow-ups from both myself and from the Management and Policy Analyst who handled my appeal, the Coast Guard Office of Public Affairs have failed to even acknowledge that my request has been sent back to them for re-processing.

Similarly, I am still waiting for a response from the Pentagon to a request I filed in February 2017, which has an estimated completion date of July 5th 2017. Some of my requests to the CIA are now over three years old.

As the National Security Archive have documented, there are some FOIA requests from as far back as the late 1980s that still have not received full responses. Likewise, documents released to Government Attic a few months ago show that the Department for the Interior still haven’t responded to a requests dating back to 2013. MuckRock users have obtained similar records, proving that federal agencies consistently (and sometimes dramatically) fail to keep to the timelines and deadlines imposed by the FOIA.

In light of all this, does changing ‘will take 20 days’ to ‘would generally take 20 days’ genuinely constitute a ‘war on transparency’?

Of course it doesn’t. But actually explaining how the FOIA works (or doesn’t) and how FOIA offices function (or don’t) would mean acknowledging that the Trump administration hasn’t made any difference to FOIA, and that the Obama administration was notorious for FOIA delays and excessive classification. Which doesn’t fit in with the already-tired liberal narrative of Trump as a belligerent right-wing dictator. So instead a bunch of journalists who’ve probably never filed a FOIA request in their life are reporting in hyperbolic terms and blaming Trump for the Dept. of the Interior’s implementing of a piece of legislation from the Obama years.

Which is an absolutely retarded pack of lies.

How the Shutdown Actually Affects FOIA

In the real world, having escaped these liberal news media fantasies, I continue to file FOIA requests, including one with the US Army yesterday evening for information on them commissing radio soap operas in Colombia.

Because that’s what FOIA journalists actually do — they find specific stories and request documents, to try to reveal details of what the government is doing. They don’t screech ‘TRUMP!’ at the top of their lungs every time they don’t understand why something is happening.

All that being said, Trump’s government shut-down is affecting FOIA. Among the 800,000 furloughed government employees are many who work in the FOIA offices, which means anyone submitting a request right now is likely to face a delay. The same happened in previous US government shut-downs.

For example, when I filed a request with the National Archives and Records Administration for a file the FBI said had been sent to them, I was told that a response to my request was delayed due a lack of appropriations.

Email response from National Archives

Curiously, not a single news outlet has run a story on how FOIA offices have been temporarily closed due to the shut-down. This will have a far more deleterious effect on FOIA requesters than a few marginal rewrites of the FOIA regulations for one government department. But instead of blaming Trump for what he has actually done, they are going batshit blaming Trump for something he didn’t do.

Message to liberals: If you like what you’re getting then keep doing what you’re doing. If you want something different then do something different.