Interior’s Proposed FOIA Rule Threatens Transparency and Accountability

BY DANIEL MCGRATH
Staff Attorney, American Oversight

In late December, just days before beleaguered former Interior Secretary Ryan Zinke’s last day, his agency proposed new regulations that would allow it to avoid transparency by allowing the department to refuse to honor certain Freedom of Information Act requests and empowering the department to limit its responses to certain requesters. Several of the proposed changes are contrary to law and undermine the very purpose of FOIA.

Former Secretary Zinke — plagued by constant ethics scandals and more than a dozen federal investigations of his conduct — presided over a surge in FOIA requests directed to his office and the Department of the Interior’s Office of Inspector General (OIG), many of which were aimed at providing transparency into Zinke’s questionable conduct and leadership. But rather than allocate the resources necessary to respond to these requests (in FY 2017, DOI spent less than .08 percent of its funding on FOIA processing), the department has instead appeared to opt for political interference in its response to FOIA requests.

For example, lawyers representing DOI repeatedly refused to answer a federal judge’s questions regarding the number of levels of review requested documents were subject to — presumably including review by political appointees. And less than a week before he resigned, Zinke took the unusual step of giving a political appointee, former Koch brothers adviser Daniel Jorjani, the authority to oversee FOIA responses. Jorjani had previously, when discussing an OIG investigation related to Zinke, told DOI staff that “our job is protect the Secretary.” The department’s new proposed regulations are issued under Jorjani’s supposed authority, and it is far from clear whether he has the authority to issue any proposed rules.

On January 29, American Oversight and Democracy Forward submitted a comment on the proposed rule, detailing its shortcomings and urging DOI not to adopt measures aimed at blocking transparency. Below are the three of the most egregious issues with the proposed changes to the department’s FOIA regulations.

DOI Could Decide to “Not Honor” Requests It Considers Too Voluminous

DOI wants to include a clause that would allow it to refuse to honor a request that requires the agency to search for and review “a vast quantity of material.” This limitation could harm the transparency and accountability that FOIA is designed to promote and is contrary to established law.

To begin with, FOIA contains no limitation on the volume of records that a requester may ask for, and only requires that the requested records be “reasonably described.” While some courts have found, in extreme cases, that FOIA requests that would require a manual search through tens of thousands of files may pose an “undue burden” on an agency, DOI’s proposed rule fails to define what the agency would consider to be a “vast quantity of material,” allowing the agency to refuse to respond to a request even if it were not unduly burdensome. Indeed, many FOIA requests in the age of electronic records involve a large quantity of material, but electronic searches greatly reduce the burden involved in reviewing the records.

This undefined standard threatens to frustrate the very purposes of FOIA — transparency and accountability. First, DOI’s proposed rule would allow the agency to reject a request simply because it would bring too much government activity to light, turning FOIA on its head. Second, considering Jorjani’s insistence that department employees’ job is to “protect the Secretary,” DOI could arbitrarily implement this undefined standard to prevent or delay responding to requests perceived to be threats to the department’s political leadership, thwarting the accountability that FOIA was enacted to promote. Finally, DOI FOIA staff could incorrectly apply the standard to even typical FOIA requests that seek, for example, only a few hundred emails. For requesters without ready access to legal counsel — including many journalists and public interest organizations — such incorrect interpretations of the statutory language could permanently prevent the public from gaining access to valuable information.

DOI Could Put Limits on Requesters that Broadly Disseminate Information

The proposed regulations would, contrary to FOIA’s statutory requirements, allow DOI the discretion to limit the records the agency produces to certain requesters, including news media and public interest organizations likely to disseminate the information gained and to ensure accountability for agency officials.

FOIA requires agencies to respond to FOIA requests within 20 working days, or 30 working days for requests that present “unusual circumstances.” The statute does not allow agencies to limit responses to a FOIA request on the basis of a requester’s identity, but that is exactly what DOI proposes to give itself power to do here.

The implications of this change could be particularly harmful for the public’s access to information about DOI’s activities. The proposed rule states that DOI may impose monthly limits on its response to some requests “in order to treat requesters equitably.” In practice, DOI may use this power to limit its responses to requesters that make numerous FOIA requests, justifying such limitations as “equitable.” But many frequent requesters are news media and public interest organizations that seek information of broad public concern and disseminate that information widely. By contrast, requesters that submit a single FOIA request to the agency are often individuals seeking information for narrower, private interests.

Jorjani Does Not Have the Authority to Change DOI’s FOIA Regulations

The department’s proposed regulations were issued by Jorjani, presumably as he purports to exercise the authority of the department’s solicitor. But Jorjani simply lacks the authority to issue new FOIA regulations. As an initial matter, the department’s manual prohibits officials from issuing a proposed rule unless that authority is specifically granted to them, and DOI doesn’t identify any such delegation to its solicitor.

Even if the solicitor had the authority to issue FOIA regulations, Jorjani could not exercise it because he has not been lawfully appointed to carry out the duties of that position — either by presidential appointment and Senate confirmation or under the requirements of the Federal Vacancies Reform Act (FVRA). Zinke purported to delegate the duties and functions of the solicitor to Jorjani, but Jorjani was not eligible for such a delegation under FVRA. He was neither appointed acting solicitor by the president, nor had he served as “first assistant” to the solicitor for 90 days in the year leading up to the solicitor vacancy, either of which would be required for him to temporarily assume the solicitor’s functions and duties. And, even if Jorjani had been eligible to temporarily act in that role, he could only have done so for 210 days from the time the previous solicitor nominee withdrew his or her name from consideration. The last nominee withdrew on May 10, 2018, and the ability of even an eligible individual to exercise the duties of the solicitor would have ended on December 6 — weeks before the proposed regulations were issued.

In sum, it is entirely unclear that even a properly appointed solicitor could propose new FOIA regulations, and it appears plain that — even if they had such authority — Jorjani cannot lawfully exercise the authority of the solicitor.

Congress enacted FOIA to better inform public participation in democratic decision-making and to ensure that the public could hold the government accountable. DOI says its proposed rule is “necessary to best serve our customers and comply with the FOIA as efficiently, equitably, and completely as possible.” But if DOI were truly committed to improving transparency, it would devote the necessary resources to fulfilling its FOIA obligations — not find ways to avoid accountability.

Here is the full comment from American Oversight and Democracy Forward: