Washington, DC— Citing “Exponential increases in requests and litigation,” the Interior Department quietly on Friday unveiled proposed regulations to expand its discretion to block Freedom of Information Act requests, fee waivers, and expedited handling of records about breaking news stories. These changes are vaguely worded and will likely lead to more not less FOIA litigation, according to Public Employees for Environmental Responsibility (PEER), one of the top FOIA litigation groups in the country.
Despite the government shutdown affecting Interior, the agency posted a Federal Register notice on December 28th soliciting public comment on a rewrite of its FOIA regulations. The proposal contains provisions that appear to target the news media, such as –
- Striking “a breaking news story of general public interest” as a legitimate basis for obtaining expedited processing of a FOIA request;
- Adding an additional layer of approval by the Office of Solicitor “before granting expedited processing requests”; and
- Allowing Interior to deflect requests to other agencies if it determines that another agency “would be better able to determine whether the record is exempt from disclosure.” The current standard is that the requested bureau “has no responsive records.”
“These changes are designed to facilitate more official stonewalling and delays in producing public records, especially on fast developing news stories,” stated PEER Executive Director Jeff Ruch, noting the proposed regulations are surfacing as Secretary Zinke leaves office. “If anything, the short, tumultuous tenure of Secretary Ryan Zinke should be grounds for more transparency, not less, inside Interior.”
The proposal would also burden individual and non-governmental organization requestors by authorizing Interior to “not honor a request” that it deems to be too large or unduly burdensome. In addition, Interior wants authority to “impose a monthly limit for processing records.” Another change requires requesters to show “expertise in the subject area” to qualify for a public interest fee waiver.
“Interior current political appointees prefer to operate in secrecy and regard the Freedom of Information Act as a nuisance, not a responsibility,” added Ruch. “Trying to reinforce its official bunker with new restrictions will only generate more FOIA lawsuits that Interior will ultimately lose.”
The proposal was issued under the signature of Daniel Jorjani as the “Principal Deputy Solicitor, Exercising the Authority of the Solicitor”, a convoluted title reflecting that neither Jorjani nor a Solicitor have been confirmed by the Senate. Most of Interior’s top slots are still filled by acting officials, several without a nominee in the offing.
The public comment period on this FOIA proposal ends in 30 days, on January 28, 2019.
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