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PARTNERSHIP FoR CIVIL Justice Pune January Txceulive Scenctariae KOLA Regulations US. Departement ofthe Inrstior 1849 C SL NW via beclerl eRlemecking Portal Re: Docket No, DOL-201R-0017 To Ihe Excoutive Secretariat FOIA Regulations ‘The Partncrship tor Civil Justice Fund submits this comment on the U.S, Deparment of the Inleriar's proposed revisions to the regulations governing. irmplementalion of Frocdam of Information Aet (FOIA) requests that would restrict, burden and in sore insiances,climinals, public acces In yowemment roconds. 83 Kod. Reg. 67,175 (December 28, 2018). The propos) rulemaking notanly defies ihe Agency's obligation to transparency and the public's ight. ta now what their yavermment is up i, bul appears to dizcetly violate the Agency's legal obligations under the HOA inset While the Agency, and its up oflieials, may wish to coneeal tae actions ftom public ‘oversight of whethor such actions conform tthe law and the Agency's obligations as steward of cour public lands, such desites are incansisrent with both the POIA und demoersey ‘Th Partnership for Civil Justice Fund has extensive enperience nsw requestor and as ‘counsel in Ttigation regerding FOLA requests. Lhe PCIF is a non-profit orgunicutiun dedicated ua defending and advancing fundamental civil and human sights. Is KOLA work iavalving tre Department of Interior ana is Naliorall Pak Sorview hus been significant in exposing and analyzing government actions in the conte! of First Amendtent sights. Lhe PCIE has a long: standing commitment (o ensuring transparency in govermnent operations and acting as a watch. dog in protection of eonstitutioeal righis. The PCIF"s mission and ability to camry out fs work ‘will be materially harmed by the proposed rulemaking As an initial matter, the PCJP supports the roquests for extension of the public ewramment period and requests lve public hearings submilted by WillBareh Guardians and other commenters forthe reasons stated in those subrnissicns, We note chat dhe Department af Interior had filed its legal obligation to provide adequate ‘and full opportaaity and information (or publi comment, 11 ssud ils proposed malomaking during the gowsenment shutdown, allocating the resources tn do so while simultaneously filing twallocate the additional resouroes necessary to crn sith ts abligaions lor he publie comment perivd, including the regular updass and posting of infirmation lar public viewing om the public vomment page, andl respurees for avsilable staff ta sespond to questions regarding the ‘The proposed eulemukiny itelT fails to adequately explain and justify the changes i proposed, and slespte inquiry from the public ans Congress, the Ageney hes Filed and refused In provid: necessary explanation ane ustifleation. The propeised rulemaking ulso lacks explanation und defisition sufficient o allow uke public to be fully upprised uf the eimsoqusmess ‘ofthe proposal, rendering the process immpuopsr and inadequate. "he proposed rulemaking fails to explsin, justify or provide adeanate ovidenoe oF analysis showing the need fr the deviation from cxisting rules, The Agonct that it considered whether the proposed rule changes vonforn to ts obligations under che Freedom of Information Act, which they do nol, and thy Ageney hss filed to explain or justify its deviation froma prior rulemaking and publie poliey regarding the POTA. |. The Agener's Claim that It Must Restrict the American People's Access to Information Based on the Public*s Inercased Interest in Obtaining Information Ty Unjustified and Mogical ‘The Ageney ints brisf narrative complains tht its props (o information under the FOTA ane necessitated by an increase in FOIA requests aad also by an incroase in litigation of FOIA requests 83 Ted, Reg. 67176, sed restrictions on public urcess Firs, that the public may have un inereuselinferes in Tearing of the conduct of a ovement ageney does noc provide a lassTul hasis for resivftion of wseess, Tndesd, doring the period of increased FOLA requests of which the Ageney complains, public revords requysts have been pivotal in exposing actions and conktuct that would have otherwise buen eanealed fram, public view including high level conflicts of ines and possible corruption. While the Agency. or its offtcials, may nou T ossaty to ensue democratic governance. such exposure, iis net Second, iis te Ayeney ilsell tha necessitates litigation to obvain EULA marerials by {ling to properly satist’ requests pursuant fo the TOT, The fact that a requestor must seek court iorervention ro obtain ialormation that should be made public, eannet properly Zorm the bruni lor Further restriction om public access. ‘The Agoney has fled to provide sulTicient budget und historical statistical evidence to support its claims regarding resouoes. However, ifthe Agency has prableen thal is resoure riven, them it should resllocate resources to satsly its OLA obligations und seek budget Ineveascs as necessary to properly carry out those obligations. Aluemiptng lo traneale is keg obligations for rmsparency tothe public is neta justifiable eespoase. ‘The Agency provides virtually no other explanation, evidence, analysis ar justification Tor the substantial overhsul thst it proposcs. Jt bas failed for each ofits substantial proposed changes 1o existing regulations to explain why cach change is acecssar, justification for each nor uny evidence supporting.» justification, It has provided no analysis showing that it considered other alternatives ta its proposed rule changes to address any clnimed nood for such ‘revision, thas provided no analysis showing tha it eonsidered the impact af ts propesed rule changes on its obligations under the FOIA and to “eornpliunes with stauucory requirements of Unspureney, secountablity and prompt production.” 83 Ted. Reg. 67176. 2. The Agency's Proposed Rule Changes Create an Obstructi ‘Violate the FOIA iol Came uni Ibe Agency’s prupered rulemaking places obstructive burdens on publi acecss to information thar ate unjustified. Tie Agency appears ls be making the publie’s right (0 understand what its goverment is up tb into a shell game. Ifa requestor doss uot know the name of, end does net properly pues, a “diverse, identifiable ayerey setivity. operation or program” when seeking information, the Agency plans { dismiss the reyuest. Proposed Amendisent [Fv9p| a § 2.5. However: the FOLA eequites simply that requestors “reascnably deserihe[]" veoords sought, 5US.C. § $52a)@1A) [the public does nat identify Ihe correct burcau or component whore responsive documents are located within tre Agency. the Ageney plans to ne Tonger rofer FOLAS from one cemponent to the eampanent that dies pissy Une requests inirmation, Prop § 24. Yet the FOIA obligates an Agcney to forward a request to the hureans or eamipement likely ta passes nsponsive information, $ U.S.C. § SS2(aX8KAKID. 3. ‘The Agency's Proposed Quantity Rule to Deny Requests Based na an Tindefined Amount of Respousive Information Violates the FOLA, Further, the Agency socks to deny requests based on tho quantity of responsive information ints possession, Prop § 2.5 ¢*The bureau will not honor a zoquest that poquizes an unreasonably burdensome search or requires the bureau to locate, review, rodnet, of aurange for inspostion of a vast quantity of material”). {his is not proper basis for denial. Ifa eequest is properly wilanad lo seek information ‘ha informs the public about goverament conduct and operation, und it happens bul responsive information is of substanlial quanccy, the Agoney may not summarily dismiss that request or refuse to provess il. Moreover, Ihs Ageney provides no definition as to what is consicers “vast 4. ‘The Agency's Proposal to Place Monthly Linsitations on FOIA Requests the FOTA, ‘While planning ts nesriel FOTA requests based 00 t be responsive, the Ag 2 quai cy simullaneously plans to restrict roam of information that may fors who file multiple requests 3 fr inlimmsation hy imposing a monthly Limitation on FOLA requests, Prop § 2.14. A requestor who ssould thus seck to limit the scape of potentially responsive information in order to comply With the Ageney’s propose (and undefined) new quaaity rule by breaking dow a roquest ina smaller component parts, will nus he denied or delayed! for submitting even narrower toqusst, "his proposal would unfawlully deny any persom their right ro have # HOLA request ‘once they had reached an undefined monthly limit, journalist covering multiple 4 ntonth, for example, would be stopped from abusing inforemion, The FOTA w proces storios dui requires that all zequests be timely processed in order ta make reords “prinnpily ilu the requestor, S U.S.C, § S52AN3KA), Fhe Ageney may not unilaterally stop processing requests, 5. The Agency's Attempted Redefinition of Mandatory “Time Limits” Would Vialate the FOTA, The Agency plans to redefine ils tire Honit ligubions ts respond ta neues by <liminating the languaye that states that equests “will” ake a certain amaunt of time snd ‘replacing it sth the pormnissive and uncertain phrase “would generally.” Prop 82.15. The Agency lurther strikes the phnise “time limit” and replaces it withthe phease “time frame,” Jhout. This uppours ta be an uolawfil effort to climinats the Ageney"s obligations ta timely process requests and predave respomsive information as required by the FOLA, Ur 6. The Agenty’s Plan to Restrict and Burden Expedited Processing Decisions Appears to be a Political Gatckeoping Maneuver and Kails to Provide Required ‘Justification ‘The Ageny bas failed to provide justification far its proposed rule change hat would create the needless mel extreme burden of requiing a requestor provide a line by line ‘nivicualize justification for “all elements and subcomponents” uf expedited provessing requests. Prop § 2.20, Further, while the Agoney complains about KOLA processing hurdens it pripsises to create ureter hureauevalie Burcsns by requiring its FOLA seatfvo pass all expedited processing requests theough its Soleilar’s Offies, There is no justification given for such a cheage. which appears i he u poTitieul yuekveping effort to ensure tna no news modi cam roquost aud rocsive urgent information wilhous review (rom the Agency's lawyers, FOTA ‘officers should bs compoteat to respond to expedited processing req ‘oversight for every decision. The Agency claims repeatedly tha is proposals will “streanatine™ the FOIA process, but these changes do the exact opposite. ‘he Agency also propyises delete the standard for expedited processing ths! cephins the request “refers toa breaking news story of general public interes.” I pravidessmn justification, nor could it, for climinating this basis for expedited processing % tests without lawyer he Agensy"s Plan to Engage in Discretionary, Content-Based Determinations and “Value Judgments” for Pex Waiver Requusts is Unjustified and Unlawful ‘The Agony plaus to create a higher burden (or lee waivers, aguin without explanation ot justification. The Ageney has added a requirement that a reyuest must "eoneem diserevo, identifiable agency activites, operulions, or progsamms with a connoction that is direct and cleas, shot remote or attenuate.” Prop § 248. There is no explanation as to what this is intended 70 ican. how it will change or alTact the pravessing of fee wsiver requests, or wis is ROSESSALY 19 amcet this zequirement. It is not possible for the pullie tp understand the impwct of the rus, eto then to gather that it creates some undefined further burden und vhstruetion. gency also plans to give itsell the discretion w evaluuls the ually ofa possible Ldisclosure's contribution to the publie’s enlightenment. by inserting the word “signtiesauly befine the wold “vamnihule” inthe foe wsiver orteri: “low disclosure is Likely 1 [significantly | contcitute ts public understanding ofthese operations or activities.” Prop § 2.4842). The Agency provides no explanation as ty how it will dotemmine whietacr a disclosure ‘significantly conteibutes” ar where gontsibuling la publie understanding will he decmed invollicieal, ‘The Ageney proposes to delete the following paraeraph currently al § 2450: “The >ureuu mus! not make value judgments about whether the infomation at issue is “important” enough te made public: iL snot the burea’s role to temp to determine the level of public interest in requested information.” ‘hese two changes together make vleur tha The Ageney wishes to arogats to its power and discretion to determine the “importance” or quality of information diselosus factor in making foe waiver decerminations. ‘This ensues un unluTill, cimtent-basce discretionary dovisionmaking process. lf the Vothe reasons heen the gene should ssn es proposed etna in il Siac \ - Bade h Ante Mara Verheyden-Thilfiand Executive Direcine Pactnetship foe Civil Justice Fura