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Russ Kick of AltGov2 is again on the FOIA case. This time he’s analyzed the Department of Interior’s proposed changes to their FOIA regulations (and helpfully cobbled together the current regulations with DoI’s proposed changes). Comments on the proposed changes can be submitted electronically by JANUARY 28, 2019. Here’s the current regulations and the proposed rules changes posted to regulations.gov.
Here’s my own take on this. Department of Interior’s reason for updating its FOIA regulations is that they’ve had “Exponential increases in requests and litigation.” From Fiscal Year (FY) 2016 to FY 2018, incoming FOIA requests to the Department increased 30 percent (from 6,428 to over 8,350). So it would make sense that they’d want to update their regulations to deal with the exponential increase in requests. But instead of requesting more staff to deal with the increase in requests or look for ways to proactively release more records, their proposed changes:
- look to expand the definition and reasoning of “burdensome” requests that can be denied. “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.”
- place monthly limits on the number of requests per month from frequent requesters.
- Make it more confusing and difficult to submit requests (eg it’s unclear whether requests will be accepted via email in the new regs).
- No longer refer or forward mistakenly directed requests. “A request to a particular bureau or a particular bureau component (for example, a request addressed to a regional or field office) will be presumed to seek only records from that particular bureau or particular component and will not be forwarded to another bureau or component.”
- Change “time limits” to “time frames,” making the time to fulfill requests more squishy and undefined.
There’s probably more buried in this request. Check out Russ’ analysis at MuckRock. And PLEASE send comments to Department of Interior about their proposed changes. Comments on the proposed changes can be submitted electronically by JANUARY 28, 2019.
The Department of the Interior wants to drastically change how it deals with Freedom of Information Act requests. To do that, it had to make a proposal, published in the Federal Register, that the public can comment on for 30 days. In theory, it has to consider this input before finalizing any changes to its FOIA regulations.
That proposal was published on December 28th, 2018, which is 1) a Friday 2) in the middle of the week between Christmas and New Year’s Day 3) during a government shutdown. Any one of those is a tried-and-true way to slip something past the public, but all three simultaneously? That is the trifecta of bureaucratic underhandedness.
So, now that the holidays are behind us for another year, let’s take a look at Interior’s FOIA wishlist, which is primarily designed to hobble requesters and solidify the department’s power. (To make it easier to see the many changes Interior wants, I’ve created a redline version of their currently FOIA regulations, with added language in bold and deletions in strikethrough, which you can see here.)
Natural Resources Defense Council (NRDC) submits comment to NARA re Dept of Interior records schedule request
The Natural Resources Defense Council (NRDC) just sent me a PDF copy of the comment that they submitted to the National Archives and Records Administration (NARA) regarding the Department of Interior records schedule request. This letter, combined with the others from DLF, transparency organizations, and Stanford Libraries offers a finely grained analysis of the overall problem and suggestions for moving forward in making the scheduling process much more transparent and in understanding and preserving important government records. Many thanks to these organizations and the many others who submitted comments.
The Natural Resources Defense Council (NRDC) is a non-profit organization dedicated to safeguarding the earth: its people, its plants and animals, and the natural systems on which all life depends. On behalf of our over 3 million members and online activists, NRDC submits the following comments regarding the Department of the Interior’s proposed updates to its records schedule, DAA-0048-2015-0003. See Notice of availability of proposed records schedules, 83 Fed. Reg. 45,979, 45,980 (Sept. 11, 2018). NRDC also joins the letter submitted by the Emmett Environmental Law and Policy Clinic at Harvard Law School. We appreciate the willingness of the National Archives and Records Administration to work with interested parties and extend the comment period to permit public inspection of Interior’s retention policy for such vital records.
The proposed schedule covers records that are central to the public’s understanding of the Department of the Interior’s (“Interior’s”) stewardship of our nation’s public lands and natural resources. Moreover, it encompasses records of activities that might have long-lasting or permanent implications for both human health and the environment. But the proposed schedule permits some records to be destroyed while they may still be substantially valuable to the public, while other retention policies are too vague to assess their impact. Moreover, the high publicity and comprehensive nature of Interior’s schedule change highlights shortcomings in NARA’s approval process for agency records schedules. Interior’s records schedule should be amended to ensure that valuable records are preserved for public inspection.
Digital Library Federation and government transparency community submit comments to NARA re DoI records schedule
Today was the last day to comment on the draft Department of Interior records scheduling request (originally posted here on FGI “Holes in History: The Dept of Interior request to destroy records.”). I’m aware that 2 groups — the Digital Library Federation’s Government Records Transparency and Accountability working group (GRTA) and a broad coalition of government transparency organizations including Government Information Watch, FGI, Defending Rights & Dissent, Demand Progress, Public Citizen, FracTracker Alliance, National Coalition for History, Association of Research Libraries, Rural Coalition, Society of Professional Journalists, Project On Government Oversight (POGO), and ICPSR — have submitted comments and listed concerns and ideas for how to make the records scheduling process more transparent. I think these letters, combined with Stanford UL’s letter to AOTUS Ferriero, raise important points and issues in the records scheduling process in general and in the Department of Interior’s request specifically and give suggestions for how to make the process more transparent and publicly accessible.
NARA does yeoman’s work and is critical to the public understanding of the workings of our government. Hopefully, these and other comments received by concerned citizens and organizations will improve access and preservation of important records.
We posted about the Dept of Interior records schedule request to NARA and have been actively working on this issue for a few weeks now. Patrice McDermott, Director of Government Information Watch — many of you will have known Patrice from her ALA Washington Office days or laster as director of Open The Government — just posted the request below to govdoc-l so I thought I’d share beyond the govt documents library community. Please check out the draft letter that Patrice and several others in the FOIA/open govt communities have penned. Send any comments or concerns her way. And if you’d like to copy/paste anything from her letter — or from Stanford UL’s letter to AOTUS Ferriero for that matter — for your own comment to NARA, please do so BY NOVEMBER 26!
Here is a DRAFT letter/comments to NARA. Many thanks to the folks who have been working on this – this letter draws heavily on your work.
Thoughts, edits – and specific concerns about particular sets of records – welcomed. Please send to me [email protected]
It dawned on me that T’giving week is almost upon us… I plan to send this Friday 23 November. It is open to both organizational and individual signatories.
As you may know, the DOI has put in a request to NARA for disposition authority for a large # of record groups. Disposition does not equal immediate destruction; mostly the records would be marked Temporary — with ‘disposal’ dates that vary greatly based on the records, what they document, etc. Very few govt records (1-3%, according to NARA) are designated as Permanent/Archival.
The request is confusing to read & follow because DOI — following NARA guidance of recent years — has moved what used to be discrete series of records with discrete records schedules (as permanent or temporary) into what are being called ‘big buckets.’ The DOI request is essentially cross-walking discrete records series to their new bucket. And made the request for all of the buckets at one time.
- PDF of full DOI request
- PDF of Tabular Summary (expanded so Records Descriptions are readable in full)
- PDF Appraisal memo (from NARA)
The volume aside, there are a number of concerning aspects to this request.
I pulled together an annotated version of the NARA appraisal memo to get a handle on what was requested – and provisionally approved by NARA. I highlighted language in the Appraisal Memo (Blue=Good retention; Green = NARA comments worth noting; Orang(ish) = Concerning), and indicated the #s of Records Groups (not #s of records) covered in each NARA appraisal entry.
One aspect that has troubled me is from DOI’s Request for Records Disposition Authority
This change to a departmental schedule, from individual bureau schedules, moves disposition authority for Record Groups 022 (FWS), 049 (BLM), 057 (USGS), 075 (BIA), 079 (NPS), 115 (BOR), 471 (OSMRE),
473 (BSEE), and 589 (BOEMRE) to 048. (which is Office of the Secretary (OS) – Record Group 048)
Regardless of who the Secretary of Interior is or may be, it gives me pause to put authority for requesting disposal for these sensitive records in the office of a political appointee. So, there is a potential question for NARA (or its Hill overseers).
I am really troubled by the repeated language — by NARA — about “interest to NARA Researchers” (as opposed to??), and that records “do not document significant actions of federal officials”.
The legal definition of Records (44 U.S.C. Chapter 33)§ 3301) is:
(1) IN GENERAL.-As used in this chapter, the term “records”-
(A) includes all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them
I would welcome your thoughts on particular sets of records/buckets and how they have been appraised — where the appraisal may fail to address the research/legal/etc needs of other communities (other than “NARA researchers”), where data, on which ongoing datasets are built, might be irretrievably destroyed, etc.
Last week, we posted a story “Holes in History: The Dept of Interior request to destroy records” in which we raised issues concerning NARA’s records scheduling process in general and the DoI request in particular.
Today my University Librarian Michael Keller sent a Letter to Archivist of the US David Ferriero re the DoI records destruction request (text attached and below). We strongly recommend that all of our readers submit comments to NARA by November 26, 2018 (Be sure to say that you’re referring to DAA-0048-2015-0003). Here’s the address:
- [email protected]
- fax: 301-837-3698
- NARA (ACRA), 8601 Adelphi Road, College Park MD 20740-6001.