Stack of binders

Source: Pexels

By: Lynne Dzubow, Clinical Fellow

On January 29, 2019, the Emmett Environmental Law & Policy Clinic (EL&PC) submitted comments challenging the Department of the Interior’s (DOI) proposed changes to its Freedom of Information Act (FOIA) regulations.

Consistent with the Trump Administration’s upside-down view of transparency, DOI proposed on December 28, 2018, various changes to its FOIA regulations that would curb public access to the agency’s records.  DOI is one of the largest federal agencies responsible for, among other things, permitting offshore drilling and managing National Parks. Any effort to restrict public participation in and understanding of the agency’s activities would not only be contrary to the intent of FOIA but also undermine public confidence in DOI’s actions.

Congress’s intent in enacting FOIA, the United States’ pre-eminent open government law, was “to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” Standards for information requests and exemptions to disclosure were clearly set by Congress, ensuring a balance between governmental transparency and agency efficiency. DOI’s proposed FOIA regulations would disturb this balance by imposing additional procedural burdens on the public and eliminating necessary safeguards for misdirected FOIA requests.

Discrete & Identifiable Agency Activities or Programs

The proposal introduces new specificity requirements for FOIA requests, requiring that they identify “the discrete, identifiable agency activity, operation, or program” regarding which the requester seeks information. This requirement is inconsistent with the statute, which requires only that the public “reasonably describe” the records sought. The statutory standard simply means that the information request must describe the records sought in enough detail to enable an agency official familiar with the matter to locate the records with a reasonable amount of effort. The proposed rule not only unlawfully exceeds this standard, but is also problematically vague.

Under this proposed provision, DOI could theoretically reject as overly broad a request for an agency official’s communications with special interest groups during a certain time period as long as the request did not also identify the discrete topics of those discussions. Considering that FOIA requests of this type were the impetus for investigations into apparent ethics violations by several top DOI officials, including Former Secretary Ryan Zinke, it is apparent why Congress did not want to impose excessive burdens on those requesting agency records.

Prohibition of Unreasonably Burdensome Searches

Another problematic aspect of DOI’s proposed regulations is their blanket prohibition against “unreasonably burdensome” searches or searches yielding large quantities of responsive records. As written, FOIA explicitly addresses how agencies should handle requests that result in large quantities of material. That is, agencies should attempt to narrow such requests by communicating with the requesters and are allowed to extend their processing time limits should such attempts prove unsuccessful. An agency is not, however, allowed to completely ignore a request because it is time-consuming or difficult to process. DOI’s proposed regulations do just this by allowing agency departments to “not honor” burdensome requests.

Refusal to Forward Misdirected FOIA Requests  

One of the more disingenuous aspects of the proposed regulations is DOI’s removal of statutorily required provisions guaranteeing that agency officials will forward misdirected requests to the appropriate DOI department. DOI’s justification for the proposal was a “surge” in FOIA requests and strain on administrative efficiency, but the proposed changes will do little to address this alleged problem. Requesters, who are often in the dark as to an agency’s structure and organization of records, may be reasonably uncertain as to the appropriate addressee for an information request. This is especially true with respect to DOI, which houses nine bureaus and eight offices. These components not only communicate internally, but also work together on projects. Accordingly, records regarding a specific topic might be retained by multiple DOI bureaus and offices. Without guaranteed help from knowledgeable DOI officials, the public is either left to guess, fail, and try again or required to preemptively contact the agency to formulate the request (although this may still not guarantee success).

Either way, a burden not envisioned by FOIA is placed on the public and administrative efficiency is reduced. In addition, the proposed removal is antagonistic to the goal of transparency, as information requests may never even meet their intended destination.

Clinics Have a Vested Interest in True Administrative Transparency

The Trump Administration has turned the concept of transparency on its head through its attempt to shield DOI from FOIA requests. Unfortunately, this troubling trend of obfuscation has no end in sight.

As law clinics, such as the EL&PC, depend on transparency from federal agencies to inform student projects and aid clients, EL&PC will continue to challenge attempts by this administration to undermine openness and accountability at the federal level.