Democracy Forward and American Oversight Object to Department of the Interior’s Proposed Restrictions on Releasing Public Information
Proposed Changes to Freedom of Information Act Rules are Arbitrary and Capricious, Issued by Official Who Lacks Lawful Authority
Washington, DC— Today, Democracy Forward and American Oversight submitted a comment objecting to the Department of the Interior’s (DOI) proposed changes to the processing of Freedom of Information Act (FOIA) requests. Among other changes, the proposal, announced last month, purports to:
Authorize DOI to deny requests that specifically identify the records requested simply because the agency may possess many responsive records.
Allow DOI to deny requests that do not identify a specific agency activity pertaining to the requested records, even where the request seeks a narrow and discrete category of records.
Allow DOI to limit the number of records DOI will process for a given requester, potentially hamstringing public interest and news media groups despite their vital role in furthering the transparency interests at the heart of FOIA.
These proposed changes—among others—violate FOIA and unlawfully fail to consider alternative approaches that would more effectively advance the transparency interests underlying the statute.
DOI’s proposed rule was issued by Principal Deputy Solicitor of the Interior Department Daniel Jorjani. In today’s comment, the groups further assert that Mr. Jorjani—who has not been confirmed by the Senate to serve as DOI’s Solicitor—does not have legal authority to issue a proposed or final rule on the agency’s behalf.
“In one of his last public acts before slinking out of Washington, former Secretary Zinke attempted to shield his agency’s repeated wrongdoing with this unlawful rule,” said Democracy Forward Executive Director Anne Harkavy. “We will continue to support the American people’s right to transparency against an administration that prefers to unlawfully operate in the dark.”
“It is absurd that the Trump administration is attempting to justify this blatant attack on transparency by citing its own failure to process public records requests,” said Austin Evers, Executive Director of American Oversight. “The Freedom of Information Act played a key role in enabling watchdogs and journalists to uncover former secretary Zinke’s wide-ranging corruption. Interior’s proposed rule will hurt Americans’ ability to hold government officials accountable — and in this administration, it’s more important than ever for the public to know what our leaders are doing.”
The groups assert that the proposed FOIA rule is unlawful because:
It is inconsistent with the text and purpose of FOIA;
DOI’s argument that it lacks resources to respond to FOIA requests results from its own decisions to underfund its FOIA program, and in any event does not justify further shielding the Department from public accountability; and
Limiting FOIA processing rates on a per-requester basis has no precedent under FOIA jurisprudence and could undermine the vital role of public interest and news media organizations in effectuating FOIA’s purpose.
In their comment, Democracy Forward and American Oversight assert that “the root cause of the problems described by DOI… is DOI’s failure to adequately fund and resource its FOIA responsibilities in the face of increasing FOIA demand.” Under the Trump Administration, the Department of the Interior has committed several serious violations of federal law, including open government laws. The groups submitted their comment to the Department of the Interior on January 29, 2019, following DOI’s extension of the comment period by a single day.
More information on the groups’ joint comment is available here.
Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.
American Oversight is a non-partisan, nonprofit ethics watchdog and is the top Freedom of Information Act litigator investigating the Trump administration. American Oversight has filed more than 50 public records lawsuits since March 2017, uncovering and publishing tens of thousands of documents including senior officials’ calendars, emails, and expense records. Through its Parallel Investigations Initiative, American Oversight uses targeted FOIA requests and litigation to prevent the Trump administration from obstructing congressional oversight.