The US Department of the Interior wants to do all it can to comply with recent changes to FOIA law. It wants transparency and accountability just as much as US citizens want it. In the comments preceding its proposed changes [PDF] to FOIA response procedures, it has this to say:
The Department is fully committed to an equitable FOIA program that ensures compliance with the statutory requirements of transparency, accountability, and prompt production.
Here’s how it’s planning to “ensure compliance” and produce all the good stuff compliance would bring. (h/t Steve Reilly)
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.
Hmm. This doesn’t sound like compliance at all. This sounds like an agency rewriting FOIA law to limit the number of FOIA requests it will respond to. This determination will be made solely by the agency, which is giving itself a brand new exception to FOIA requirements. Sure, requesters can challenge this determination, but it’s probably going to take a lawsuit to dislodge documents held by an agency so very committed to “transparency, accountability, and prompt production.”
The DOI says this new limitation is necessary because it’s seen a surge in requests and litigation. These are inextricably linked, thanks to the agency’s inability/unwillingness to respond to requests in a timely fashion.
The problem goes deeper than the backlog. Government agencies don’t throw much money or manpower at responding to FOIA requests, preferring instead to spend taxpayer dollars fighting taxpayers in court over requested documents.
The DOI’s recent leadership has contributed to this problem by making a relatively uninteresting department highly FOIA-able. Ryan Zinke’s departure from the Department at the end of last year won’t do much to slow the bleeding. Zinke’s 21-month stint was marked by controversy after controversy, including shady real estate deals, abuse of travel privileges, $139,000-worth of office doors, and a long list of attacks on animal conservation efforts. The paper trail he leaves behind is of considerable public interest, and the surge in FOIA requests his agency is facing is evidence of that.
The good news is the public can comment on this proposed change. The bad news is, of course, the change could be implemented over the objections of the American people. The suggestion box is open but it’s not like anyone’s counting votes for and against.
If this does get codified, other federal agencies will certainly push for their own exception — one that grants them the power to unilaterally reject FOIA requests. This will result in a self-fulfilling justification for increased restrictions on FOIA responses as agencies will always experience an uptick in FOIA litigation with rules like these in place.
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