Interior removes controversial proposed change from final FOIA rule

Interior removes controversial proposed change from final FOIA rule
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The Interior Department has removed heavily criticized language from the final version of its public records rule that some worried would give officials too much leniency in withholding documents.

The final iteration of the department’s Freedom of Information Act (FOIA) regulation issued Friday removes several proposed language changes that government watchdog groups argued would place an unlawful burden on public records seekers and offered the agency broader authority to reject requests that didn’t fit the more narrow request format.

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For instance, a section of the finalized rule no longer lists the additional specification to “reasonably describe” the records sought: “identify the discrete, identifiable agency activity, operation, or program in which you are interested.”

Interior first submitted the draft FOIA regulatory changes in January during the government shutdown.

Government transparency groups argued such new specifications were not backed by the law. “The problem with this language is that neither FOIA nor the case law requires requesters 'to identify the discrete, identifiable agency activity, operation, or program in which [they] are interested.' Rather, a FOIA request satisfies the statute’s 'reasonably describes' requirement so long as it 'enable[s] a professional employee of the agency who [i]s familiar with the subject area of the request to locate the record with a reasonable amount of effort,’” a group of seven government oversight groups wrote in a January complaint to the Interior Department.

The changes in the final rule come as the Interior Department has faced mounting scrutiny over its public records policies, including an investigation by the Interior inspector general into its use of an “awareness review” policy that allows political appointees to view documents in which they are referenced prior to release. Neither the draft of Interior’s FOIA policy nor the finalized rule mentions that policy, which was issued separately.

During the drafting of its FOIA rule, Interior took notes from both the FBI and the Environmental Protection Agency (EPA) for ways to deal with a surge in public records requests. EPA’s latest FOIA update has been the subject of its own heavy criticism.

The Interior Department called the revisions just part of a broader goal to create an "efficient and more transparent" FOIA process at the agency.

"The FOIA is often explained as a means for citizens to know “what their government is up to,” said Jorjani in a statement. “This non-partisan regulatory reform went through a robust public notice-and-comment process and is a major step forward in ensuring transparency and accountability in the FOIA program.”

While conservation and government watchdog groups were happy with the changes, they said concern still lingers over how the Interior Department, and its newly confirmed solicitor, Daniel Jorjani, will implement FOIA requests internally.

“The most concerning stuff seems to be gone,” said Aaron Weiss, deputy director of the Center for Western Priorities. 

“The concern is that they haven't even been following their own rules previously. Even if this rule got rid of the really bad stuff, Jorjani has not been afraid to ignore the rules when it’s politically expedient or would be embarrassing for [Interior Secretary] David Bernhardt.”

Kevin Bell, staff counsel for the Public Employees for Environmental Responsibility said the intent to withhold rather than provide more public information still remains clear in Interior’s latest FOIA rule.

“While the impact of some sections may have been softened, the intent of this regulation is still to provide less information to fewer requesters on a slower basis,” he said.

Changes included in the new FOIA policy include clarifications for when officials will grant expedited processing of FOIA requests and the ability to get refunds when requestors are overcharged.