Interior Dept. issues restrictive open records regulations during holidays, shutdown

January 8, 2019 11:00

I first learned the political term “take out the trash day” during a January 2000 episode of the NBC drama “The West Wing,” set in the fictional White House of the fictional President Jed Bartlett.
During the show, Deputy Chief of Staff Josh Lyman explains the concept to his assistant, Donna Moss:
What's 'Take Out the Trash Day'?
I mean what is it?
Any stories we have to give the press that we're not wild about we give all in a lump on Friday.
Why do you do it in a lump?
Instead of one at a time?
I'd think you'd want to spread them out.
They've got X column inches to fill, right? They're gonna fill them no matter what.
So if we give them one story, that story's X column inches.
And if we give them 5 stories...
They're a fifth the size.
Why do you do it on Friday?
Because no one reads the paper on Saturday.
If that’s how the Bartlett administration disposed of news it wasn’t “wild about” 19 years ago then what the very real Trump administration’s Interior Department did on December 28 – the Friday of a holiday week at a time when 78% of department employees were on furlough due to the current government shutdown – should be called “Take Out The Trash, Set It On Fire, Then Bury It Very Deep In An Isolated Landfill Day.”
What Interior did between Christmas and New Year’s Days, when virtually all of the Washington information vacuum was filled by news of the shutdown and more than three-fourths of its employees were out of the office, was to propose changes to the department’s Freedom of Information Act regulations.
Specifically, under the proposed new rules, the Interior Department would be able to reject FOIA requests it deems "unreasonably burdensome.” It would also place a limit on the number of FOIA requests organizations or individuals could submit each month.
Why would the department do such a thing? Well, because it says it has been inundated by an exponential increase in the number of such requests, and by lawsuits filed because the department hasn’t been complying with many of those requests. Specifically, the department says:
Exponential increases in requests and litigation have made updates to these regulations a priority. From Fiscal Year (FY) 2016 to FY 2018, incoming FOIA requests to the Department increased 30 percent (from 6,428 to over 8,350). Some bureaus and offices have been hit especially hard. The Office of the Secretary (OS) FOIA Office, for example, has received a 210 percent increase from FY 2016. The Department's attempts to respond accurately, completely, and in a timely manner to every request have been further hindered by the dramatic increase in litigation, particularly over agency non-response to initial FOIA requests. For example, at the close of FY 2018 the Department had 129 active FOIA cases in litigation (39 in OS alone) compared to just 6 cases in litigation in total at the close of FY 2015 and 30 cases in litigation in total at the end of FY 2016. The Department processed over 6,900 requests in FY 2018, compared to 6,437 in FY 2016. Despite the increased production, the Department's backlog of requests without at least a partial response has also increased. The Department's FOIA processing therefore must be more efficient if the Department is to meet its statutory obligations.
Wait a minute. Look again at the fourth sentence of that paragraph: “The Office of the Secretary (OS) FOIA Office, for example, has received a 210 percent increase from [Fiscal Year] 2016 [to Fiscal Year 2018].
What could have possibly contributed to that 210% increase in FOIA requests to then-Secretary Ryan Zinke’s office?
Maybe it was the more than a dozen ethics investigations targeting Zinke, some of which are still underway even though Zinke resigned in mid-December. Maybe it was the department’s inspector general’s investigation into whether a development deal in Zinke’s home state of Montana personally benefited his family.
Most people likely don’t even remember the name of President Obama’s last interior secretary (Sally Jewell), or, for that matter, President George W. Bush’s (Dirk Kempthorne). Zinke was, and is, a proverbial lightning rod. No wonder the number of FOIA requests to his office increased several times over.
Second, under the department’s rationale, it wants to greatly restrict the number and scope of FOIA requests because of an increase in the number of lawsuits it now faces for not responding to FOIA requests. You read that right: The department says because it hasn’t been complying with existing FOIA regulations, the number of times it has been sued for non-compliance has increased. Because the number of lawsuits has increased, the department doesn’t want to enhance its FOIA compliance capabilities. No. It wants to limit the number of FOIA requests.
Imagine if an industry Interior regulates – oh, say, off-shore oil drilling – got sued 129 times, the number of suits the department says it is currently facing – for allegedly violating federal regulations. Then imagine if that industry went to the Interior Department and said, we’re getting sued too much; please change the regulations to keep people from taking us to court.
To be clear, the new regulations are merely a proposal at this point. Interior is accepting public comments through January 28. You can bet that RTDNA, through its membership in the press freedom collation News Media for Open Government (NMOG), will file such comments protesting the revisions.
Unless RTDNA and others are able to change Interior’s position, the department will, in effect, create an ominous and draconian version of “Take Out The Trash Day.” Call it “Oh, We Have Trash; We Just Don’t Tell The Public About It Day.”
I prefer the words of the late Supreme Court Justice Louis Brandeis: “Sunlight is said to be the best of disinfectants.”