This West Is OUR West

Freedom of Information Act (FOIA) Getting Significant Change

January 19, 2019

Background:  The federal partial government Shut Down occurred on December 21st. Online publications of the Federal Register Table of Contents ceased from Dec. 21st until January 3 when Daily Table of Contents resumed, with minimal content.

During the shutdown, on the last Friday of December, December 28th, as Former Secretary of Interior Ryan Zinke, was leaving office, a Department of Interior Proposed Rule Change for the Freedom of Information Act (FOIA) was published. There was no Press Release or copy of the Proposed Rule on the DOI website, nor was the December 28th Federal Register circulated online.  The public would be unaware of this massive rule change published during the Shutdown.

A couple of alert reporters published articles on this curiosity, and a colleague of mine, forwarded me the information. The news articles are available at:

https://thehill.com/policy/energy-environment/423328-new-interior-foia-rule-could-make-it-harder-to-get-public-documents

 http://www.nationalmemo.com/ousted-zinke-proposed-to-restrict-foia-access-at-interior/

 https://www.denverpost.com/2019/01/03/interior-department-public-information-foia/

There are two attachments that accompany this Alert:  1) The December 28th, 2018 DOI Proposed Rule Changes for FOIA, 43 CFR Part 2; and 2) The actual rule:  43 CFR Part 2.

DOI indicates that the motivation for FOIA rule changes in a 30%, and in some agency’s offices, a 210% increase in FOIA requests from 2016 through 2018.  Likewise, litigation for FOIA-non-response has dramatically increased.  It should be noted that during this same time, 2016 through 2018, and a few years earlier, property owners, farmers, ranchers and antiquities collectors were brutally intimidated by rogue behaviors of federal employees of the Bureau of Land Management, U.S. Fish and Wildlife, Bureau of Reclamation, Bureau of Indian Affairs etc.  I’m aware of unwarranted criminal convictions of numerous citizens, and at least 4 suicides directly connected to federal employee abuse.

It’s no surprise to me that the public and/or their legal counsel would need federal agency records to defend themselves against such conduct, dramatically increasing FOIA requests. The answer is not to hide, obscure and increase difficulty in retrieving needed federal records, but that’s what the FOIA Proposed Rule may be doing, at first blush. 

More eyes are needed on this Proposed Rule, and a ton of Public Comments need to be posted before January 28, 2018.

IT IS EASY TO POST PUBLIC COMMENTS:

  1. Go to the Federal eRulemaking Portal:  https://www.regulations.gov
  2. Following the very simple directions on this site;
  3. Be sure to enter:  Docket No. DOI-2018-0017 in your message.

DOI reports that it “ensures compliance of transparency, accountability, and prompt production.” However, the 6-page, 3-column, small font “Proposed Rule” makes hundreds of changes to sections throughout 43 CFR Part 2, requiring tedious comparison of proposed changes, section by section, and without identifying content of the sections being rescinded.

RECOMMENDATION:

Post comments on the https://www.regulations.gov website, encouraging the following:

A. The Proposed Rule should be withdrawn and suspended until the Government Shutdown is ended and the DOI agencies, employees and websites are available to the public.

B. Suggest that the Proposed rule be re-evaluated by either the Acting Secretary of Interior, and/or delayed until the Senate has confirmed a new Secretary of Interior

Comments can be informal, simple and short, but please DO POST a quick comment on www.regulations.gov.  Insert Docket No. DOI-2018-0017

I do hope that some of you will take the time to read the Proposed Rule and see what is getting eliminated, expanded or ignored.  We need to be sure that the public receives proper access to federal records to keep up with what the country is doing.  We must hold the DOI and FOIA officials to their announced mission to “ensure compliance of transparency, accountability and prompt production.”

Respectfully,

Elaine Willman

Email: toppin@aol.com

Phone: 509-949-8055