In An Effort to Thwart Transparency, Proposal Would Restrict Public’s and Media’s Ability to Obtain Agency Records

Over the holiday and during the federal government shutdown, the Interior Department quietly published a proposed rule in the Federal Register to restrict public records requests allowed through the Freedom of Information Act (FOIA). The FOIA statute is America’s foremost transparency law that according to the Department of Justice exists ‘to ensure informed citizens, vital to the functioning of a democratic society.’

Interior’s proposed restrictions on public records requests would allow the agency to deny requests that it deems ‘burdensome’ or ‘vague.’ Yet, it is unclear how the agency would determine if a public request was ‘too burdensome’. As a result, if the proposed rule went into effect, Interior could arbitrarily deny requests. Ostensibly, the agency could deny any public records request, especially if the requested information is controversial or would reveal the underpinnings of major policy decisions.

In addition, the rule proposal states that Interior could deny a request that ‘requires the bureau to locate, review, redact, or arrange for inspection of a vast quantity of material.’ It would also limit the number of monthly requests that could be made by the public, reporters or organizations.

At the time of his confirmation, Secretary Zinke promised to lead the ‘most transparent Interior in at least his lifetime’ only to fall desperately short of his promise. The agency is citing an uptick in FOIA requests during Zinke’s scandal-plagued tenure as its rationale for the proposed rule, claiming that the public records requests are bogging down the agency.

This proposal is just Interior’s latest attack in its attempt to thwart transparency. Last summer, Interior FOIA officials accidentally released notes that showed they had ignored public comments on the reduction of two national monuments in Utah. The unredacted information and comments show that Interior staff openly worried that if documents became publicly available they would be ‘revealing [the] strategy.’

In recent months Interior has also sought permission from the National Archives to permanently destroy a range of records relating to oil and gas leases sales, legal matters, mineral exploration permits, and fish and wildlife surveys, among other issues. Shortly before Zinke was forced to resign in disgrace, he installed political appointee and former Koch-employee Daniel Jorjani to oversee Interior’s FOIA program.

A redacted FOIA response WVP received from Interior.

A robust FOIA program is essential to public oversight. For example, under the proposed rule changes, it is unclear whether emails revealing communications between former Interior Secretary Ryan Zinke and Whitefish land developers with ties to Halliburton would have been discovered or released to the public. These emails were ultimately turned over to the Department of Justice to determine if a criminal investigation might be warranted.

Western Values Project (WVP) has filed and won numerous FOIA lawsuits against Interior in order to obtain critical information on public land and wildlife management issues and decisions, often to the chagrin of department officials. WVP currently has six pending lawsuits against Interior for public records requests that have gone unfulfilled, including requests related to ex-lobbyist now Acting Secretary David Bernhardt.

The public can comment on Interior’s proposal to restrict access to public documents until January 28, 2019.

Also published on Medium.