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Interior’s Proposed FOIA Limits May Be Illegal, Watchdogs Say

Jan. 4, 2019, 11:46 AM

Former Interior Secretary Ryan Zinke faces multiple investigations into his conduct, but one of his last official acts could make it harder for the public to find out what he did while in office.

The department proposed a rule Dec. 28 that would give it the right to sidestep “unreasonably burdensome” Freedom of Information Act requests seeking government documents, including emails, memos, guidance, and other written communications.

The change would also let Interior decline to respond to “extremely broad or vague requests or requests requiring research” under FOIA.

Not only would the change make it harder to scrutinize actions of the department and its top officials, the proposal could run afoul of the law, according to government watchdog groups.

The department claims a policy change is needed because of a 30 percent rise in FOIA requests since fiscal 2016 and a much sharper uptick in lawsuits over its failure to respond. The number of lawsuits rose from six at the end of September in 2015, to 129 three years later.

Interior also claimed the changes would lead to a fairer and more efficient process, because when it has to devote huge amounts of time to some requests, it can’t serve others.

‘Doesn’t Change Their Obligations’

But the FOIA statute doesn’t explicitly give agencies the right to deny requests simply because they call for a “vast quantity of material,” as laid out in the new proposal, said Nick Schwellenbach, director of investigations at the Project on Government Oversight watchdog group.

“I’m very sympathetic to agencies dealing with an influx of FOIA requests, but it doesn’t change their obligations under the law to comply with FOIA and provide records to requestors,” Swellenbach told Bloomberg Environment.

FOIA is used by both the public and journalists, and is a key tool in newsrooms to get access to public records from government agencies. Some broad information can legally be withheld from requests, to protect things such as personal privacy or national security.

The Interior Department didn’t respond to Bloomberg Environment’s request for comment.

‘Patently Illegal’

The shift in policy is only a proposal for now. Public comments are due Jan. 28. The rule, if adopted, could eventually be taken to court.

The actions by Interior are “patently illegal under the statute,” said Adam Marshall, a staff attorney at the Reporters Committee for Freedom of the Press, a nonprofit that provides legal assistance to the media.

“This is a pretty unashamed, outright attack on FOIA in these proposed rules,” Marshall told Bloomberg Environment. “This is much bolder than other proposed changes to agency regulations that I have seen.”

Will Rinehart of the conservative think tank American Action Forum told Bloomberg Environment that the proposal “sets up a much larger conflict regarding FOIA” that the agency might not win.

Monthly Limit Problematic

Also problematic is Interior’s proposal to impose a monthly limit for processing records in response to each request, said Patrick Llewellyn, an attorney in the litigation group at Public Citizen.

“It seems like it could be inconsistent with the statutory requirement that records be made promptly available,” Llewellyn told Bloomberg Environment.

Agencies do have the discretion to set up their own processes for handling FOIA requests, according to Schwellenbach.

Even so, “the problem with discretion is that sometimes it looks arbitrary,” Schwellenbach said. “It could become problematic if someone had a politically sensitive request and the new rule was used as a way to slow-roll the request. It would have to be challenged in court, and a judge could have problems with that.”

Moreover, there’s nothing new about agencies seeing a surge of FOIA requests, said Cary Coglianese, an administrative law professor at the University of Pennsylvania Law School.

“The State Department under the Obama administration found itself in a similar situation, but it did not propose monthly limits or state categorically that it will not honor requests calling for a vast quantity of material,” Coglianese told Bloomberg Environment.

‘Erodes the Rule of Law’

Some argue that any problems or changes to the FOIA process need to be handled legislatively.

The agency can’t pick and choose which request it wants to fulfill, Steven Aftergood, project director at the nonprofit Federation of American Scientists, said.

Diane Katz, a senior research fellow at the conservative think tank Heritage Foundation, agreed.

“Congress should set the FOIA rules, not agencies,” she told Bloomberg Environment. “Agencies are already delegated far too much rulemaking power. What that does is create inconsistency across the government, and it erodes the rule of law.”

Katz said she understands how difficult it is for agencies to fulfill very broad and undetailed FOIA requests.

“But the response is not to say we’re not going to respond. The response is to say that you have to be more detailed, which is what FOIA tells them to do,” she said.

Zinke officially resigned Jan. 2. He has been at the center of at least a dozen federal investigations, including his role in a Montana land deal that has raised pay-to-play questions and his decision to block a Native American casino in Connecticut after he met with MGM Casinos, which wants to build its own operation nearby.

To contact the reporters on this story: Stephen Lee in Washington at stephenlee@bloombergenvironment.com; Rebecca Kern in Washington at rkern@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Susan Bruninga at sbruninga@bloombergenvironment.com