Interior took notes from FBI while developing controversial FOIA policy

Interior took notes from FBI while developing controversial FOIA policy
© Getty Images

The Interior Department took notes from the FBI, which handles reams of classified material and is known as a slower responder to public records requests, while developing its controversial policy for Freedom of Information Act (FOIA) requests, according to emails reviewed by The Hill.

Internal emails obtained through a FOIA request by Earthjustice and shared with The Hill show that Interior employees were eager to talk to FBI staff who oversaw FOIA requests as it sought to deal with its own mounting public records requests.

ADVERTISEMENT

“I understand from my discussions with the US Attorney’s Office in D.C. that the FBI’s FOIA program and strategy in FOIA litigation is pretty much the 'gold standard,’ ” Rachel Spector, an official with Interior’s Office of the Solicitor, wrote to an unnamed FBI official on April 14, 2018.

“Sorry to be so persistent, but we are scrambling to get our arms around a significant surge in FOIA requests and accompanying litigation,” she wrote to another FBI official seeking information on their procedures.

The emails show Interior was particularly interested in the FBI’s “500-page per month policy,” under which the FBI only releases 500 pages of requested material to each requester per month. That rule has routinely been challenged in courts with mixed success by advocacy groups who argue it skirts FOIA law.

The “500-page per month policy” did not become a part of Interior’s new FOIA process, but critics say the discussions show the lengths to which the department went to try to find ways to not have to respond quickly to requests.

“I can’t imagine any reason for adopting the FBI’s approach other than it seems like a slow enough rate for them to be happy with processing records,” said Jeffrey Light, a FOIA specialist attorney.

The emails also show Interior reached out to officials at the Environmental Protection Agency (EPA) while it was working on its policy.

Both the EPA and Interior in 2018 were actively working to draft new FOIA policies under President TrumpDonald John TrumpRepublicans consider skipping witnesses in Trump impeachment trial Bombshell Afghanistan report bolsters calls for end to 'forever wars' Lawmakers dismiss Chinese retaliatory threat to US tech MORE. Interior ultimately submitted its draft policy in December 2018. EPA submitted its finalized policy without a public comment period at the end of June.

An Interior Department official said the policies were drafted in a way to “increase the value of the services we provide to the American people.” 

“As part of the Department’s efforts to improve its FOIA program, we consulted other federal agencies to better understand their practices including training, technology, and processing. We are committed to increasing transparency and improving our ability to meet our statutory obligations with an ever-increasing volume of FOIA requests,” Interior spokeswoman Molly Block told The Hill in a statement.

The FBI did not immediately respond to a request for comment on its interactions with the Interior Department.

Thomas Cmar, a lawyer with Earthjustice, said Interior’s use of the FBI as a potential model for handling FOIA requests was troubling because “the FBI has a long and storied history of lack of transparency.”

ADVERTISEMENT

“I think it says a lot about Interior’s point of view on transparency that they are looking for examples on efforts trying to clamp down on transparency as models for how the agency should adopt its procedures,” he said.

The FBI provided Interior with full texts of one of the court cases connected to the 500-page rule’s proceedings, writing: “The Appeal Court concluded the FBI’s policy was not in violation of the FOIA; the policy is a non-obstructionist; the policy serves to promote efficient responses to a larger number of requesters.”

Light, who has represented clients challenging the FBI’s FOIA rule, said he understood Interior’s interest in the FBI policy even though it was a bit like comparing “apples and oranges” given the often classified nature of FBI information.

“I can certainly understand from an agency’s perspective why they would want to have a cap on how many pages they want to do,” he said. “Because then, if there is a request that is large, you can forward the requester to be in a position to give up documents they really want or having to wait an inordinate amount of time to get them. It gives them a lot of leverage.”

The emails show Interior officials were interested in learning more about the EPA’s recent reorganization of FOIA request handling to a central office in Washington, D.C.

EPA in April 2018 quietly moved its national FOIA office to its Office of General Counsel, a big change that meant requests went to a general office rather than specific EPA bureaus.

Critics say the shift made EPA political appointees — and not career officials — the first gatekeepers for FOIA requests.

The EPA’s new policy has been challenged in the courts by a number of environmental groups over its lack of transparency and also spurred a bipartisan group of senators at the end of July to introduce a FOIA reform bill.

Interior set up meetings with EPA officials to discuss the rules after they learned of them.

“FYI,” wrote Cindy Cafaro, an officer in Interior’s FOIA policy office, as she forwarded an internal EPA press release about the National Freedom of Information Act office. The April 25, 2018, email was sent to Juliette Lillie, director of Interior’s Office of the Executive Secretariat and Regulatory Affairs, and Robert Howarth, the director of congressional affairs.

Four months later, Interior’s acting solicitor Edward Keable and EPA's acting FOIA director Timothy Epp held a meeting.

“Thank you again for taking the time this afternoon to meet with us,” Keable wrote Epp on Aug. 24. In the email, Keable suggested further discussing topics at a second meeting, scheduled for Aug. 28.

“What is your experience with and how do you minimize false positives? How do you manage quality control?” Keable asked Epp in the Aug. 24 email, referring to ways the agency could minimize the chances of releasing incorrectly identified documents from FOIA request match search results.

Cmar said the interactions were troubling because “we’ve seen serious abuses of the process at both agencies under this administration.”

Another internal email suggested that Interior Secretary David Bernhardt personally requested learning more details about EPA’s FOIA process. Bernhardt was deputy secretary at the time.

In August, an email sent from Lillie to acting Interior Solicitor Daniel Jorjani and Hubbel Relat, a senior counselor at Interior, said a “David” had asked staff to reach out to EPA.

“This morning we met with David on FOIA. He asked us to reach out to EPA to learn about their management processes, including clearing out backlog, accountability, management, staffing, tools, etc. and how they made the changes. Would it be possible for you to reach out within the next week?” Lillie wrote. “We are on a tight time frame to provide some additional guidance back to David. I am happy to discuss further with you, when you are available.”

Interior did not respond to a specific question about Bernhardt’s involvement.

The EPA told The Hill that it will “continue to work with all federal partners to share best practices for FOIA responses.” The agency did not comment on its communications with the Interior Department regarding FOIA policies.

Interior’s final draft FOIA policy submitted in December did not include EPA’s centralization plan.

Interior did not respond to questions about why the two policies were not included and whether it is looking to incorporate them.

Interior's draft FOIA policy has been criticized for including what’s known as an “awareness review,” which allows senior political appointees to review public documents referencing them before release. Critics warn the practice can slow the dissemination of public information and gives officials undue authority to potentially influence the withholding of documents.

Sen. Ron WydenRonald (Ron) Lee WydenTrump trade deal likely to sow division in Democratic presidential field House GOP unveils alternative drug pricing measure ahead of Pelosi vote Pelosi gets standing ovation at Kennedy Center Honors MORE (D-Ore.) last week placed a hold on Jorjani’s nomination to be the official Interior solicitor, citing concerns over his work on Interior’s FOIA policy and a lack of candor about his involvement while testifying to Congress.

Interior’s Inspector General is separately investigating the merits of the Interior FOIA policy.

“I am writing to ask you that you include in the scope of your investigation the role Deputy Solicitor Daniel Jorjani played in establishing DOI’s ‘supplemental’ FOIA review policy or any awareness he may have had of the policy’s existence before his confirmation hearing,” Wyden last week wrote to the Inspector General's Office.

“I believe your investigation may be the best hope of uncovering information critical to a possible DOJ investigation before the Senate moves forward with his confirmation vote,” he wrote.

Rebecca Beitsch contributed.