Secrets and Lies: Comment NOW against proposed FOIA Regs

Do you want to know a secret? FOIA, the Freedom of Information Act, gives private citizens the right to get information from federal agencies. It exists to promote transparency, accountability, and prompt access to a wide range of information. But under proposed revised regulations, the Department of the Interior (DOI) would be able to decide for itself whether it felt like giving out information – even information on whether the government was involved in possible criminal behavior. You have until January 28 to comment opposing these proposed regulations and preserve our right to get crucial information … [January 17: note that due to the shutdown the link may not be working, please keep trying if you get an outage message].

For example, information about government officials who have misused their positions … such as Ryan Zinke, Trump’s recently departed Secretary of the Interior. The Department of the Interior, rather like the interior of the country itself, is grand in scope, including the National Park Service, Bureau of Land Management, Bureau of Indian Affairs, and half a dozen other major departments. Zinke resigned at the end of 2018, after an unprecedented 18 separate investigations were launched into his misconduct. Some of these investigations are still pending at the time of this writing; ominously, several were closed only because of lack of cooperation by the DOI or failure to keep records.

In an amazing coincidence, just days before Zinke’s resignation, the DOI proposed revised regulations giving it broad discretion to avoid providing answers to FOIA requests for information — particularly from journalists and public interest organizations. Under these proposed regulations, the Department would be able to:

  • decide which media organizations “serve the public interest” and are therefore entitled to information, and
  • limit the number of requests media and other organizations can make during a month.

Extensive case law under FOIA governs what records must be produced. These proposed regulations are unnecessary, contrary to the statute and that case law, and inconsistent with the clear intent of Congress. They impede accountability and make further misconduct more likely.

The comment period for these proposed regulations ends January 28. Go to https://www.regulations.gov/document?D=DOI_FRDOC_0001-0094 and click the “comment now” button at the upper right to leave an objection. Be sure to mention that you are commenting on Docket No. DOI-2018-0017.

You can use these points as a guide, but please use your own language; comments that are too similar may be grouped together and not considered individually.

  • The proposed changes to the Department of the Interior’s handling of FOIA requests are contrary to goals of the FOIA statute: transparency, accountability, and prompt access to information.
  • The proposed changes are contrary to the FOIA statute, 5 U.S.C. section 522, which allows “any person” to seek information. The proposed regulations allow Interior to deny access to a media organization or other organization that has recently asked for other information. Under this change, Interior could withhold information from media outlets it didn’t like, or anyone who asked numerous or embarrassing questions – the exact situation FOIA was intended to provide against.
  • The purported reason for the changes – an increase in FOIA requests – is the result of the conduct of the DOI itself: As reported by Outside Magazine (January 17, 2019) and Nada Culver, senior counsel with the Wilderness Society, FOIA requests at Interior are up because Interior stopped sharing information voluntarily that was routinely provided by prior administrations.
  • Other changes include stretching time “limits” into “frames,” making it easier to deny requests, and giving Interior discretion to decide whether media organizations are operating primarily “in a commercial interest.” These go directly against the intent of FOIA – to allow access to information and to prevent the government from prohibiting access.
  • Submitting these proposed regulations during a holiday week, in the midst of a government shutdown, just days before Director Ryan Zinke resigned while the subject of numerous investigations, is an outrageous effort by the government to keep the public from exercising their democratic rights.

Dean Gloster is a former clerk at the U.S. Supreme Court who now writes novels. His debut YA, DESSERT FIRST, is out now.