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PARTNERSHIP FOR CIVIL JUSTICE FUND
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MARA 

IN D.C. AND N.Y.

January 29, 2018

Executive Secretariat FOIA Regulations
US. Department of the Interior

1849 St. NW

Washington, DC 20240

via Federal eRulemaking Portal

Re: Docket No. DOI-2018-0017
To the Executive Secretariat FOIA Regulations:

The Partnership for Civil Justice Fund submits this comment on the US. Department of
the Interior?s proposed revisions to the regulations governing implementation of Freedom of
Information Act (FOIA) requests that would restrict, burden and in some instances, eliminate,
public access to government records. 83 Fed. Reg. 67,175 (December 28, 2018). The proposed
rulemaking not only de?es the Agency?s obligation to transparency and the public?s right to
know what their government is up to, but appears to directly violate the Agency?s legal
obligations under the FOIA itself.

While the Agency, and its top of?cials, may wish to conceal their actions from public
oversight of whether such actions conform to the law and the Agency?s obligations as steward of
our public lands, such desires are inconsistent with both the FOIA and democracy.

The Partnership for Civil Justice Fund has extensive experience as a requestor and as
counsel in litigation regarding OIA requests. The PCJF is a non-pro?t organization dedicated to
defending and advancing fundamental civil and human rights. Its FOIA work involving the
Department of Interior and its National Park Service has been signi?cant in exposing and
analyzing government actions in the context of First Amendment rights. The has a long-
standing commitment to ensuring transparency in government operations and acting as a watch-
dog in protection of constitutional rights. The mission and ability to carry out its work
will be materially harmed by the proposed rulemaking.

As an initial matter, the PCJF supports the requests for extension of the public comment
period and requests for public hearings submitted by WildEarth Guardians and other commenters
for the reasons stated in those submissions.

We note that the Department of Interior had failed its legal obligation to provide adequate
and full opportunity and information for public comment. It issued its proposed rulemaking
during the government shutdown, allocating the resources to do so while simultaneously failing
to allocate the additional resources necessary to comply with its obligations for the public
comment period, including the regular update and posting of information for public viewing on
the public comment page, and resources for available staff to respond to questions regarding the
proposed rulemaking.

The proposed rulemaking itself fails to adequately explain and justify the changes it has
proposed, and despite inquiry from the public and Congress, the Agency has failed and refused
to provide necessary explanation and justi?cation. The proposed rulemaking also lacks
explanation and de?nition suf?cient to allow the public to be fully apprised of the consequences
of the proposal, rendering the process improper and inadequate.

The proposed rulemaking fails to explain, justify or provide adequate evidence or
analysis showing the need for the deviation from existing rules. The Agency has failed to show
that it considered whether the proposed rule changes conform to its obligations under the
Freedom of Information Act, which they do not, and the Agency has failed to explain or justify
its deviation from prior rulemaking and public policy regarding the FOIA.

1. The Agency?s Claim that It Must Restrict the American People?s Access to
Information Based on the Public?s Increased Interest in Obtaining Information
Is Unjusti?ed and Illogical

The Agency in its brief narrative complains that its proposed restrictions on public access
to information under the FOIA are necessitated by an increase in FOIA requests and also by an
increase in litigation of FOIA requests. 83 Fed. Reg. 67176.

First, that the public may have an increased interest in learning of the conduct of a
government agency does not provide a lawful basis for restriction of access. Indeed, during the
period of increased FOIA requests of which the Agency complains, public records requests have
been pivotal in exposing actions and conduct that would have otherwise been concealed from
public view including high level con?icts of interest and possible corruption. While the Agency,
or its of?cials, may not like such exposure, it is necessary to ensure democratic governance.

Second, it is the Agency itself that necessitates litigation to obtain FOIA materials by
failing to properly satisfy requests pursuant to the FOIA. The fact that a requestor must seek
court intervention to obtain information that should be made public, cannot properly form the
basis for further restriction on public access.

The Agency has failed to provide suf?cient budget and historical statistical evidence to
support its claims regarding resources. However, if the Agency has a problem that is resource
driven, then it should reallocate resources to satisfy its FOIA obligations and seek budget

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increases as necessary to properly carry out those obligations. Attempting to truncate its legal
obligations for transparency to the public is not a justi?able response.

The Agency provides virtually no other explanation, evidence, analysis or justi?cation
for the substantial overhaul that it proposes. It has failed for each of its substantial proposed
changes to existing regulations to explain why each change is necessary, justi?cation for each
change, nor any evidence supporting a justi?cation. It has provided no analysis showing that it
considered other alternatives to its proposed rule changes to address any claimed need for such
revision. It has provided no analysis showing that it considered the impact of its proposed rule
changes on its obligations under the FOIA and to ?compliance with statutory requirements of
transparency, accountability and prompt production.? 83 Fed. Reg. 67176.

2. The Agency?s Proposed Rule Changes Create an Obstructive Shell Game and
Violate the FOIA

The Agency?s proposed rulemaking places obstructive burdens on public access to
information that are unjusti?ed. The Agency appears to be making the public?s right to
understand what its government is up to into a shell game.

If a requestor does not know the name of, and does not properly guess, a ?discrete,
identi?able agency activity, operation or program? when seeking information, the Agency plans
to dismiss the request. Proposed Amendment [Prop] at 2.5. However, the FOIA requires simply
that requestors ?reasonably describe[]? records sought. 5 U.S.C. 552(a)(3)A).

If the public does not identify the correct bureau or component where responsive
documents are located within the Agency, the Agency plans to no longer refer FOIAs from one
component to the component that does possess the requested information. Prop 2.4. Yet the
OIA obligates an Agency to forward a request to the bureau or component likely to possess
responsive information. 5 U.S.C. 

3. The Agency?s Proposed Quantity Rule to Deny Requests Based on an Unde?ned
Amount of Responsive Information Violates the FOIA

Further, the Agency seeks to deny requests based on the quantity of responsive
information in its possession. Prop 2.5 (?The bureau will not honor a request that requires an
unreasonably burdensome search or requires the bureau to locate, review, redact, or arrange for
inspection of a vast quantity of material?).

This is not a proper basis for denial. If a request is properly tailored to seek information
that informs the public about government conduct and operation, and it happens that responsive
information is of substantial quantity, the Agency may not summarily dismiss that request or
refuse to process it. Moreover, the Agency provides no de?nition as to what is considers ?vast.?

4. The Agency?s Proposal to Place Limitations on FOIA Requests Violates
the FOIA

While planning to restrict FOIA requests based on the quantity of information that may
be responsive, the Agency simultaneously plans to restrict requestors who ?le multiple requests

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for information by imposing a limitation on FOIA requests. Prop 2.14. A requestor
who would thus seek to limit the scope of potentially responsive information in order to comply
with the Agency?s proposed (and unde?ned) new quantity rule by breaking down a request into
smaller component parts, will thus be denied or delayed for submitting even narrower requests.

This proposal would unlawfully deny any person their right to have a FOIA request
processed once they had reached an unde?ned limit. A journalist covering multiple
stories during a month, for example, would be stopped from obtaining information. The OIA
requires that all requests be timely processed in order to make records available? to
the requestor. 5 U.S.C. The Agency may not unilaterally stop processing
requests.

5. The Agency?s Attempted Rede?nition of Mandatory ?Time Limits? Would
Violate the OIA

The Agency plans to rede?ne its time limit obligations to respond to requests by
eliminating the language that states that requests ?will? take a certain amount of time and
replacing it with the permissive and uncertain phrase ?would generally.? Prop 2.15. The
Agency further strikes the phrase ?time limit? and replaces it with the phrase ?time frame,?
throughout. This appears to be an unlawful effort to eliminate the Agency?s obligations to timely
process requests and produce responsive information as required by the FOIA.

6. The Agency?s Plan to Restrict and Burden Expedited Processing Decisions
Appears to be a Political Gatekeeping Maneuver and Fails to Provide Required
Justi?cation

The Agency has failed to provide justi?cation for its proposed rule change that would
create the needless and extreme burden of requiring a requestor provide a line by line
individualized justi?cation for ?all elements and subcomponents? of expedited processing
requests. Prop 2.20. Further, while the Agency complains about FOIA processing burdens it
proposes to create greater bureaucratic burdens by requiring its FOIA staff to pass all expedited
processing requests through its Solicitor?s Of?ce. There is no justi?cation given for such a
change, which appears to be a political gatekeeping effort to ensure that no news media can
request and receive urgent information without review from the Agency?s lawyers. FOIA
of?cers should be competent to respond to expedited processing requests without lawyer
oversight for every decision. The Agency claims repeatedly that its proposals will ?streamline?
the OIA process, but these changes do the exact opposite. The Agency also proposes delete the
standard for expedited processing that explains the request ?refers to a breaking news story of
general public interest.? It provides no justi?cation, nor could it, for eliminating this basis for
expedited processing.

7. The Agency?s Plan to Engage in Discretionary, Content-Based Determinations
and ?Value Judgments? for Fee Waiver Requests is Unjusti?ed and Unlawful

The Agency plans to create a higher burden for fee waivers, again without explanation or
justi?cation. The Agency has added a requirement that a request must ?concern discrete,

identi?able agency activities, operations, or programs with a connection that is direct and clear,
not remote or attenuated.? Prop 2.48. There is no explanation as to what this is intended to
mean, how it will change or affect the processing of fee waiver requests, or what is necessary to
meet this requirement. It is not possible for the public to understand the impact of the rule, other
than to gather that it creates some unde?ned further burden and obstruction.

The Agency also plans to give itself the discretion to evaluate the quality of a possible
disclosure?s contribution to the public?s enlightenment, by inserting the word ?signi?cantly?
before the world ?contribute? in the fee waiver criteria: ?How disclosure is likely to
[signi?cantly] contribute to public understanding of those operations or activities.? Prop 
The Agency provides no explanation as to how it will determine whether a disclosure
?signi?cantly contributes? or where contributing to public understanding will be deemed
insuf?cient.

The Agency proposes to delete the following paragraph currently at ?The
bureau must not make value judgments about whether the information at issue is ?important?
enough to be made public; it is not the bureau?s role to attempt to determine the level of public
interest in requested information.?

These two changes together make clear that the Agency wishes to arrogate to itself the
power and discretion to determine the ?importance? or quality of information disclosure as a
factor in making fee waiver determinations. This creates an unlawful, content-based,
discretionary decisionmaking process.

For the reasons herein, the Agency should rescind its proposed rulemaking in full.

Sincerely,

MMBWAMWO

Mara Verheyden-Hilliard
Executive Director
Partnership for Civil Justice Fund