ASNE Joins Comments Opposing Changes to Department of Interior FOIA Regulations

You may have seen the update provided by ASNE Legal Counsel Kevin M. Goldberg on January 3 warning about proposed changes to the Department of Interior's Freedom of Information Act (FOIA) regulations. ASNE and APME had several opportunities to join comments filed in opposition to these changes (in all, over 8000 comments were filed in this rule-making proceeding before the January 29 deadline). We ended up joining 39 other media organizations and companies on comments drafted by the Reporters Committee for Freedom of the Press.
These comments argue, among other things:
  • The proposed rule comes at a time of heightened public interest in the Interior Department after Secretary Zinke lifted several environmental restrictions, was forced to respond to a significant sexual harassment scandal, and eventually resigned under questions about his integrity and fitness for public office. The increase in FOIA requests was a direct response to these issues and, in fact, should be welcomed as a means of providing necessary oversight to Interior.
  • The proposed rule should not eliminate the ability to submit FOIA requests via email and instead require filing through an electronic portal. While we support the use of an electronic portal as a means of filing FOIA requests, that should be an option in addition to other, more user-friendly means, including email. In fact, restricting filing to an electronic portal explicitly contradicts guidance (technically still in place) to reduce "bureaucratic hurdles" to open government. 
  • The proposed revisions requiring requesters to "identify the discrete, identifiable agency activity, operation, or program in which you are interested" both contradict the language of FOIA and place obligations on requesters that go beyond the Act's requirements. FOIA only requires that a requester "reasonably describe the records they seek" which, in turn, means that the agency is "able to 'determine precisely what records (are) being requested.'" Another proposed change allowing the agency to deny "extremely broad or vague requests" or "requests requiring research" creates several problems as well. Finally, there is no basis whatsoever in the law for allowing an agency to deny a request just because it would reveal a large number of documents. No such restriction exists in the law, nor has it been written into the law by courts.
  • The imposition of a monthly limit on the number of requests is particularly problematic. It is also lacking in statutory authority and is entirely contrary to the spirit of the law.
  • The proposed rules make it harder to obtain expedited processing of a request in necessary situations by forcing the requester to detail how "all elements and subcomponents" of a request meet "each element" of the test for demonstrating a compelling need for expedited processing (this is generally the basis for expedited processing that reporters usually rely upon).
  • The changes to the requirements for obtaining a fee waiver also go beyond the statutory language by requiring that a requester demonstrate a "direct and clear" connection between the requested records and government operations and activities - which is also a near-impossible burden to overcome.
ASNE members interested in learning more about this issue can contact Kevin M. Goldberg at 703-812-0462 or