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Comments Needed on DOI Changes to Freedom of Information Act Requests!

Posted: 01/23/2019
by Evan Stafford

On December 28, 2018 the Department of the Interior (DOI) proposed a rule that would change the way Freedom of Information Act (FOIA) records requests are handled by the DOI. The FOIA allows the public to access information the national government has in its possession. It provides a legal requirement for government transparency and accountability, allowing for public debate, and also provides an avenue for legal discovery in judicial challenges against the policies of public agencies, which are otherwise hidden from scrutiny. 
 
American Whitewater uses FOIA requests in a number of ways to work on stewardship issues for rivers on public lands across the country. At times, agencies within the Department of the Interior (DOI) such as the Bureau of Land Management (BLM) and National Park Service (NPS) manage rivers where we work on issues such as protecting or restoring instream flows and the landscapes surrounding rivers, and ensuring or improving public access to rivers. Knowing the history of policies and how management decisions have been formed are critical to our advocacy and FOIA requests at times are the only ways to access this information. In the recent past we've used FOIA requests to investigate records related to the Bureau of Reclamation's management of the lower Dolores River in southern Colorado, learn the origins of the paddling prohibitions in Yellowstone National Park, and in an attempt to secure information on the easement for Enloe Dam on the Similkameen River (WA) that we have identified for removal. 
 
The Interior’s proposed changes to their FOIA procedures have the potential to greatly affect American Whitewater’s, individual’s, and other organization’s requests for records from the DOI in a negative way, leading to less requests being filled and less transparency overall at this vital public lands agency. The Department of the Interior claims that these changes are necessary due to an increase in the number of FOIA requests and lawsuits it has become responsible for in recent years. There is no mention as to how these rule changes hope to accomplish this goal however, whether by deflecting or rejecting more requests, or by streamlining the process and increasing the amount of requests the agency is able handle.
 
These are proposed rule changes and therefore the public has an opportunity to comment, however the comment period ends very soon! Comments must be submitted by January 28, 2019
 
To submit a comment please use this regulations.gov portal. We’ve provided a template below that can be easily copied, pasted and personalized:
 
––– As an individual who greatly values this nation’s public lands, and who believes in the legal requirement for government transparency, I ask for your leadership in not supporting the proposed rule that would affect the Freedom of Information Act (Docket No. DOI-2018-0017). This rule would change the way that information is requested and handled through the Department of the Interior, making it more difficult to obtain records in order to understand government policies and procedures. Understanding how decisions are made within the government is vital to transparency and public awareness, things for which the Act was originally created. 
 
At the time the Freedom of Information Act was passed, the government understood the importance of allowing the public to be involved in public lands management. Specifically, I am opposed to the rule changes that would allow pre-approved withholding of records, exemptions to referrals, the addition of another level of the FOIA to process the requests (FOIA Requester Center), and the change of language in the Act that provides more vague descriptions of the amount of time expected in processing requests. I also oppose the vague requirement for requests to be precise and the codifying of only assisting requesters with necessary additional specific information in their requests if it is practicable and the information isn’t too vast.
 
The Department of the Interior has a statutory obligation to respond to public records requests, and it is critically important that FOIA lawsuits are not part of the due course for the public to learn about public policies. The proposed framework will dissuade requests about public waterways, their maintenance, and public projects benefiting these natural resources. If the Department of the Interior values public comment over legislative and judicial remedies to preserve the spirit of transparency, then I hope you consider the adverse effects of this proposed policy change. 
 
Thank you for considering my request to deny the Department of the Interior’s proposed changes to the Freedom of Information Act. 
 
Sincerely,
 
(Your name) –––
 
 
These rule changes would impose excessive burdens on smaller organizations and nonprofits by shunting all appeals for rejections, which it can reasonably be assumed will greatly increase, onto the court system, and has the potential to make such lawsuits a matter of course for all FOIA requests. While not tested in court the proposed rule changes could even bring the Department of the Interior outside its statutory responsibilities as an organization required by congress to respond to public record requests. Rather than increasing the number of requests that the department can manage, the proposed rule changes place additional constraints on how requests are made. For instance, requests must now be sent to the FOIA Requester Center first before they go the the Public Liaison. This creates another barrier to the process and potentially slows the process down even more, contrary to the stated goals for the changes. The proposed changes also state that if a request is sent to a particular bureau that bureau will no longer forward the request to another bureau. This may require multiple FOIA requests sent to multiple agencies or bureaus in lieu of an individual recipient, again contradicting the purported goals for the rule change. 
 
In regards to how records would need to be requested, the burden would further fall on the requester. The proposed changes would require a very precise, more in depth description of the records that the requester is pursuing. The addition of notifying the requester what additional information is needed in order to locate records only when “practicable” has the potential to hinder the search of the requester even further. The proposed changes would also give the bureau the ability to reject requests for records in regards to requests that include “vast amounts of information” or require an “unreasonably burdensome” amount of searching. 
 
If these proposed changes are approved then the bureau would no longer be required to notify requesters of referrals of record requests in writing, or to return the rejected request back to the requester. Bureaus would also be permitted to have written agreements between each other in order to eliminate referrals entirely for certain types of records. There would also be exemptions to referrals that could negatively impact the agency that the request was forwarded to, a list of which is not specified or defined in the proposed rule. 
 
The bureau would be allowed to impose a monthly limit on processing requests, which could result in the dismissal of requests as the bureau sees fit. The language that would be changed in the Freedom of Information Act would allow the bureau to have more flexibility in the time spans expected from requesters in regards to processing the records request. This would eliminate some of the accountability of the bureau to process the requests in a timely manner, therefore protecting them from litigation that could be more easily justified by the requester. Increased processing time would also be validated through the proposed changes by an amendment stating that processing time and the sequence of responses may be affected by litigation. 
 
The bureau, with the proposed changes, would be allowed to pre-approve withholdings of records, thus eliminating another step in the records request process and closing options before they are even considered. 
 
Fee waivers would be more difficult to obtain. In order to receive a fee waiver requesters must be very specific in the information that they are requesting, demonstrate how disclosure would “significantly” increase public understanding of operations or agencies, show that any information that is already public would benefit from the disclosure of requested records, and prove that the request is not primarily out of commercial interest. 
 
Freedom of Information Act records requests are vital to American Whitewater’s work, and to the ability of the public to understand how management decisions are made for our public lands. These rule changes seem designed to stifle the public’s right to understand how decisions are being made inside the Department of the Interior and we believe that they should not be implemented.