For 52 years, the federal Freedom of Information Act has helped American citizens exercise their right to know what their government is doing. The FOIA requires federal agencies to disclose public records on request.
The law has always been at odds with government officials who would rather not have the light of public scrutiny shine on their errors and omissions. So as Ryan Zinke was leaving the office of secretary, the Interior Department proposed new rules that would effectively allow the department to reject more FOIA requests.
Ironically, the new Freedom of Information rules proposal was published in the Federal Register on Dec. 28 with a calculated lack of publicity. There was no news release, according to Washington, D.C., newspapers. The Interior Department was in shutdown mode because of the federal budget impasse.
The published rule says to contact Cindy Cafaro in the Office of Executive Secretariat and Regulatory Affairs in Washington, D.C., for further information. On Thursday, the voice message on the published phone number said Cafaro was out of the office due to the lapse in government funding.
The Hill and the Guardian newspapers reported that they contacted an Interior Department spokesperson who said that there would be no comment on any issue other than the shutdown.
The American Society of Newspaper Editors summed up the proposal this way: “As interest in oversight of the activities of the Department of the Interior is at an all-time high, the department wants to cap the amount of requests, give itself permission to take longer in responding to filed requests, limit expedited processing of requests and make it harder to get fee waivers where the public interest demands.”
The five-page proposal was submitted by Daniel Jorjani, principal deputy solicitor for the department and formerly an employee of David and Charles Koch, the billionaire conservative activists.
But the man at the helm of this attack on FOIA is Ryan Zinke. The rule change was published in his last days as secretary with a brief explanation that cites the secretary’s office specifically.
During Zinke’s tenure, according to the published notice, FOIA requests to the department increased 30 percent. Requests to the secretary’s office alone increased 210 percent. At the end of September, the department was litigating 129 FOIA cases (mostly over complaints of delayed response or failure to respond). Among those lawsuits, 39 were in the secretary’s office.
Zinke has no one but himself to blame for the surge in FOIA requests and lawsuits. He came into this high office determined to reverse policies put in place after years-long public decision making processes. He accomplished those goals quickly, while also creating headaches for himself with questionable travel expenses. Numerous investigations into Zinke’s activities were launched and at least one was referred to the Department of Justice. Zinke invited the scrutiny he got.
The Interior Department rule states that the department “processed” over 6,900 requests in fiscal 2018, compared with 6,437 in fiscal 2016, but still saw its backlog grow.
That’s a problem, but the answer isn’t to restrict information. Instead, information must be more accessible so that making FOIA requests is less burdensome for the public and providing the information is less burdensome for government employees.
The clock is already running on the public comment period, which ends Jan. 28. We urge readers who care about public information to comment. Please check the box above for addresses.
The author of these onerous rule changes is also in charge of all FOIA requests for the entire Interior Department. According to The Hill newspaper, Zinke tapped Jorjani on Nov. 20 to serve as chief FOIA officer. Stopping these changes administratively will be an uphill battle.
There is another way: The Freedom of Information Act is federal law. Agencies cannot change the law, but Congress can. The FOIA can be revised to forbid departments from creating loopholes to refuse requests.
Today, these restrictions on access to information are being proposed by a Republican administration, and folks who mostly agree with the administration may think that’s OK. But they must remember that when a Democratic administration is in office, it will have the same secrecy rules.
The best solution is to hold each administration accountable for producing the public records the Freedom of Information Act is supposed to make accessible to all of us.