Watchdog groups object to government’s revisions to rules on information requests

(CN) — Government watchdog groups say the Department of Interior’s proposed revisions to its Freedom of Information Act guidelines leave the public in the dark about government activity and may be illegal.

Claiming that its workload in the last two years has become increasingly burdensome, the Department of Interior is seeking to tighten rules that cover Freedom of Information Act requests.

From 2016 to 2018, incoming FOIA requests to the department increased 30 percent — from 6,428 to over 8,350 — the department said in its proposed rule. “Some bureaus and offices have been hit especially hard. The Office of the Secretary FOIA office, for example, has received a 210 percent increase from FY 2016,” the department said.

The department published proposed rules in the Federal Register on Dec. 28 that would give it more leeway in restricting FOIA requests.

But Government Information Watch said many of the proposed FOIA changes would be illegal.

“The Department of Interior seems to be of the opinion that it is not bound by the letter, much less the intent, of the Freedom of Information Act,” Patrice McDermott, executive director of Government Information Watch, said in an interview. “There is nothing in the FOIA statute permitting these changes.”

The Department of Interior oversees dozens of agencies, including the National Park Service and the Bureau of Land Management.

In its documentation on the rules, it says a “dramatic increase in litigation,” particularly over Interior Department agencies’ “non-response to initial FOIA requests” has hindered its attempts to respond “accurately and in a timely manner.”

At the end of fiscal year 2018, the department had 129 active FOIA cases in litigation (39 in the Office of the Secretary) compared to six cases in litigation at the end of 2015 and 30 cases in litigation at the end of 2016.

One litigant, Western Values Project, said in a statement it opposes the FOIA changes. It added that it has won numerous FOIA lawsuits against the Department of the Interior to obtain “critical information on public land and wildlife management issues and decisions, often to the chagrin of department officials.”

Currently, the organization says it has six pending lawsuits against the department for public records requests that have gone unfulfilled, including requests related to Former Secretary Ryan Zinke’s replacement, acting Secretary David Bernhardt.

“This proposal is just Interior’s latest attack in its attempt to thwart transparency,” Jayson O’Neill, of Western Values Project, said in the statement.

The Interior Department lacks a permanent leader after Zinke resigned amidst allegations of misconduct. When Zinke accepted the position under president Trump, he vowed more openness and transparency in the department.

“In light of the unprecedented surge in FOIA requests and litigation, the Department has determined the changes are necessary to best serve our customers and comply with the FOIA as efficiently, equitably, and completely as possible,” the department said.

“Exponential increases in requests and litigation have made updates to these regulations a priority. The Department is fully committed to an equitable FOIA program that ensures compliance with the statutory requirements of transparency, accountability, and prompt production,” the department added.

The Freedom of Information Act, passed in 1967, allows the public to request access to records from any federal agency. The act requires federal agencies to disclose the requested information unless it infringes on personal privacy or interferes with the goals of national security or law enforcement.

One of the department’s proposed changes is that “the bureau will not honor a request that requires an unreasonably burdensome search or requires the bureau to locate, review, redact, or arrange for inspection of a vast quantity of material.”

The proposed rules add language to the FOIA guidelines that would give the department of Interior discretion to decide whether to release records based on whether the requester was a member of the news media, whether the information being requested was relevant to the public, or whether it was already in the public domain.

Another proposed change would allow the department to deny FOIA information “to data brokers or others who merely compile and market government information for direct economic return,” which the department says, “will not be presumed to primarily serve the public interest.”

Under the proposed changes, the department would be able to determine whether an organization, such as a media company, is serving the public interest. “If you have a commercial interest, the bureau must determine whether that is the primary interest furthered by the request,” it said.

Another proposed change allows the department to restrict handing out material sought in an FOIA request if that material is not turned into a “distinct work.”

“In this clause, the term ‘a representative of the news media’ means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience,” the rule says.

The proposed change adds the following clarification: “Distributing copies of released records, electronically or otherwise, does not qualify as using editorial skills to turn the raw materials into a distinct work.’’

The changes would also limit the number of monthly requests that news media or other organizations could make.

The public has until Jan. 28 to comment on the rules.

The department is not accepting new FOIA requests during the government shutdown.