In October, the U.S. Department of the Interior published a set of final rules amending its Freedom of Information Act regulations — revisions the agency says were prompted by an “unprecedented surge in FOIA requests and litigation” as its leadership faced increased media scrutiny.
The Interior Department initially proposed rule changes in December 2018. During the public comment period that followed, the Reporters Committee for Freedom of the Press and a coalition of 39 media organizations expressed grave concern that many of the proposed rules threatened to undermine the principal goal of FOIA, which is to promote public access to information about the federal government.
In a letter to the agency, the media coalition challenged many of the rules, as well as the agency’s justification for considering them. “Increased public interest in the activities of the Department … should be welcomed and, in any event, is not license for the Department to impose unlawful restrictions and unnecessary, unwarranted burdens on FOIA requesters,” the letter stated.
While the Interior Department ultimately withdrew several proposed rules, others have been adopted as final rules that will govern how the agency processes records requests from members of the press and the public. What follows is an analysis of the rules discarded and adopted by the agency.
- The Interior Department has declined to adopt a proposed rule in which the agency would have amended what constitutes a “reasonably described” FOIA request. Specifically, the rule previously under consideration would have required FOIA requesters to “identify the discrete, identifiable agency activity, operation, or program in which [they] are interested.” The Interior Department’s proposed language, muddling what constitutes a “reasonably described” request, is found nowhere in FOIA and stood only to hinder requesters’ ability to have a FOIA request accepted by the agency for processing. Consider the rejection of this proposed rule a win for FOIA requesters.
- Another now-discarded proposal would have set monthly limits on the processing of records for a given requester, providing no information on how that monthly limit would be determined. There is no basis in the law for an agency to impose a monthly limit for processing records in response to a FOIA request. As noted by the Reporters Committee in its January letter to the agency, FOIA permits members of the public to file as many FOIA requests as they like, and requires agencies, upon receipt of a request, to “make the records promptly available.” The Interior Department withdrew this proposed rule, recognizing that the new language “created confusion.”
- The Interior Department also backed off a proposed rule that would have replaced the phrase “time limit” with “time frame.” Doing so would have been especially problematic because the time limits promulgated in FOIA are statutory deadlines rather than mere suggestions. In comments submitted to the Interior Department, the Reporters Committee reminded the agency that FOIA’s time limits are “clearly delineated periods of time for agency action set forth by Congress,” and noted that the revised language of the proposed rules muddles the concrete nature of FOIA’s deadlines into something permissive rather than mandatory.
- In its final rules, the Interior Department has eliminated the ability of requesters to submit FOIA requests via email, instead requiring that they be submitted via online portal. The agency’s stated goal for this shift is to “modernize its FOIA request tracking system,” but as the Reporters Committee highlighted in its comments to the agency, there are serious functionality concerns implicated by online portals. The department has stated that it plans to keep in mind these concerns moving forward.
- The Interior Department has amended the criteria that need to be met in order for a FOIA requester to receive expedited processing. Specifically, requesters now must explain how “all elements and subcomponents of” a request meet “each element of” the test for demonstrating a compelling need for expedited processing. At the proposal stage, the Reporters Committee opposed this amendment on the grounds that this additional requirement is found nowhere in FOIA. The agency purported that opposition from the Reporters Committee and others “misapprehend[s] the purpose or effect of the proposed changes,” and adopted this new language as a final rule. This is a troubling move that stands to exacerbate the already pervasive delays requesters encounter in the FOIA process.
- The Interior Department has amended its criteria used to grant fee waivers, adding language specifying that a requester seeking a waiver must identify “[h]ow the records concern the operations or activities of the Federal government.” The rule goes on to say that “The subject of the request must concern discrete, identifiable agency activities, operations, or programs with a connection that is direct and clear, not remote and attenuated.” FOIA’s fee waiver provision only requires that requesters seeking a fee waiver demonstrate that release of the requested records “is likely to contribute significantly to public understanding of the operations or activities of the government” and is not primarily in their commercial interest. Under FOIA, there is no requirement that a requester demonstrate a “direct and clear” connection between the requested records and government operations and activities. Unnecessary burdens like these interfere with the right of access of the press and the public to government records and serve as needless roadblocks on the path to increased transparency.
- The Interior Department has also modified its definition of “representative of the news media,” one of the categories of requesters eligible for special fee status. The agency’s proposed rules for amending this definition posed significant problems for the newsgathering community. Originally, the agency sought to unduly narrow the pool of requesters entitled to news media status by claiming that “[d]istributing copies of released records, electronically or otherwise, does not qualify as using editorial skills to turn the raw materials into a distinct work.” The Reporters Committee strongly pushed back against this proposal by reminding the Interior Department that case law interpreting FOIA’s fee categories do, in fact, contemplate the very scenario the agency attempts to exclude from special fee status. Take, for example, how the National Security Archive was found to be a “representative of the news media” because it exercised editorial skills in publishing “document sets” culled from government records. The Interior Department has now amended its rules to say that “[s]imply distributing copies of released records, electronically or otherwise, does not qualify as using editorial skills to turn the raw materials into a distinct work.” Unfortunately, this change unjustifiably constricts the scope of who may constitute a member of the news media for fee purposes under FOIA. For more information on the very real consequences of restrictions on the press’ ability to obtain special fee status, read the Reporters Committee’s analysis about the 2015 Cause of Action v. FTC case, in which the U.S. Court of Appeals for the D.C. Circuit reasoned that once an individual or organization has established itself as a representative of the news media, it should almost always be accorded such status for FOIA’s fee purposes.
Rule adopted without notice and comment
- A fundamental tenet of administrative rulemaking is giving notice of a proposed rule to interested parties and offering them the opportunity to comment. That process, according to a 1977 D.C. Circuit ruling, facilitates the valuable “exchange of views, information, and criticism between interested persons and the agency.” Deviation from the ordinary notice and comment process is only permissible in extreme situations. In its final rules, however, the Interior Department amended a section of its regulations without alerting the public and subjecting it to notice and comment. The new rule revises the agency’s regulations to conform with Food Marketing Institute v. Argus Leader Media and concerns when commercial or financial information may be treated as confidential under a specific FOIA exemption. The Argus Leader decision broadens the scope of what business records may be withheld as confidential under FOIA. In March, the Reporters Committee and a coalition of 36 media organizations submitted a friend-of-the-court brief in support of the Argus Leader.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.