Federal Manager's Daily Report

Sens: Proposed rule could make FOIA process more confusing and expose it to politicization.

A group of four House and Senate members of both parties has expressed concern about proposed changes to FOIA policies at Interior, saying those changes potentially would “restrict public access to DOI’s records and delay the processing of FOIA requests in violation of the letter and spirit of FOIA.”

The letter from members including Rep. Elijah Cummings, D-Md., chairman of the House Oversight and Reform Committee, comes just ahead of a planned hearing in that committee on FOIA compliance in general across agencies.

They said the proposed policies would shift the burden of identifying the location of agency records from the agency to the public, set limits on requests involving a large amount of material, and allow the department to limit its work in response to requests from each requester. The rules further would replace the term “time limit” with “time frame,” which they said “raises the concern that DOI might treat FOIA’s statutorily prescribed time limits as mere guidelines.”

“Rather than clarifying DOI’s FOIA process, the proposed rule would make the process more confusing and potentially expose it to politicization and unnecessary litigation. In the spirit of transparency and advancing the public’s right to know, we urge you to reconsider the proposed rule,” they wrote to acting Interior Secretary David Bernhardt.

Agency compliance with the FOIA has been a running issue for some members of Congress in recent years, resulting for example in a 2016 change in law strengthening the law’s presumptions in favor of disclosure and to allow requests to be made to any agency from a single site. OMB recently issued guidance on carrying out the latter requirement.