Almost nobody was paying attention when the U.S. Department of the Interior (DOI) announced a new policy.
The announcement was made:
- Late on a Friday afternoon, when we’re winding down, not up.
- On December 28, in between the holidays, when lots of people are tuned out.
- Six days into the government shutdown, when no one was talking about anything else.
One critic called this “the trifecta of bureaucratic underhandedness.”
And it wasn’t even an announcement – there was no public press release or other notification. The policy was simply posted in the Federal Register, which most of us haven’t even heard of, let alone read:
It was very easy for the DOI to “Quietly Propose New Rules To Deny Public Access to Documents,” as one of the few headlines put it.
I’d add “stealthily.” And “furtively.” And “Let’s-do-this-when-nobody’s-looking-and-see-if-we-can-get-away-with-it.”
The policy applies only to the DOI and its 12 related agencies:
- Fish and Wildlife Service
- Bureau of Indian Affairs
- Bureau of Land Management
- Bureau of Reclamation
- Federal Consulting Group
- U.S. Geological Survey
- Indian Arts and Crafts Board
- National Park Service
- Office of Surface Mining, Reclamation and Enforcement
- Bureau of Ocean Energy Management
- Bureau of Safety and Environmental Enforcement
- Office of Natural Resources Revenue
Said another critic, the proposed changes “would limit the public’s ability to access department records, and would make it easier for the Department to deny requests and keep documents secret. Specifically, they would limit the number of FOIA requests the Department of the Interior processes each month. They would also allow the Department to reject any requests deemed ‘unreasonably burdensome’ or which require ‘inspection of a vast quantity of material.’”
In other words, these vague restrictions will make it easy for the Department of the Interior to deny FOIA requests for public records.
And “FOIA” – what is that?
The acronym for the Freedom of Information Act.
According to FOIA.gov, since 1967 the Freedom of Information Act “has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement.”
But if the DOI’s proposed changes become policy, that would all change, and access to public records by media outlets, organizations, and we citizens goes down the tubes.
And then it’s only a matter of time – probably a very short time – before the 14 other government departments line up like good soldiers to secure the same restrictions:
- Department of Agriculture
- Department of Commerce
- Department of Defense
- Department of Education
- Department of Energy
- Department of Health and Human Services
- Department of Homeland Security
- Department of Housing and Urban Development
- Department of Justice
- Department of Labor
- Department of State
- Department of the Treasury
- Department of Transportation
- Department of Veterans Affairs
That’s a whole lot of departments and agencies denying a whole lot of Freedom of Information Act requests.
And as those forces unite, there goes our ability – our freedom – to find out just what’s going on beyond closed government doors.
Fortunately, it turns out that some people were paying attention to the Department of the Interior’s “trifecta.”
On January 29 CNN reported that the proposal had drawn more than 46,000 comments, and I suspect this one is typical:
In addition, CNN said that on January 24, The Southern Environmental Law Center filed a 63-page objection signed by more than 130 groups that called the proposal illegal and claimed that it would provide “the agency with unlimited discretion to deny FOIA requests.”
And another group, OpenTheGovernment.org, said it and other good-government and environmental groups would challenge the department with a lawsuit if changes to the DOI’s proposal are not made:
I’m grateful for these organizations and especially the threat of a lawsuit, because based on my interpretation of the Federal Register Rulemaking Process, the Department of the Interior is basically free to ignore the public comments:
This is government-ese for:
So where do we go from here?
Going back to the Federal Register Rulemaking Process, there’s a lot more bureaucratic ya-da, ya-da, ya-da like in the green box above, but basically:
- The DOI “may decide to terminate the rulemaking.”
- The DOI may decide to continue “but change aspects of the rule.”
- The President and the Office of Information and Regulatory Affairs (OIRA) analyze the final rules.
- The final rules must be sent to Congress and the Government Accountability Office (GAO) “for review before they can take effect.”
- The House and the Senate can pass a resolution of disapproval and if the president signs it, the rule becomes void. Note: This has happened once since 1996, when the process started.
- Individuals and corporate entities “may go into the courts to make a claim that they have been, or will be, damaged or adversely affected” by a regulation.
- If the court sets aside all or parts of a rule, it “usually sends the rule back to the agency to correct the deficiencies.”
The last step can send the whole process back to square one.
Or the DOI’s new policy may fly right through the process – and become law.
Should anyone care about the Freedom of Information Act and the Department of the Interior’s policy changes?
Only if you care about 500 million acres of public land throughout the country including national parks and monuments, wildlife refuges, and water reclamation projects. Only if you care about how public lands are managed, and about activities ranging from oil drilling, mining, and livestock grazing to the protection of wildlife.
Only if you care that if this policy comes about as proposed, those 14 other government departments will race to propose the same restrictive policies.
Only if you care about being “in the know” about your government.
Maybe you don’t care about any of that.
Maybe you should ask her where she bought her jacket: