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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.)
The first thing the new Republican-led Congress did was attempt to kill the Office of Congressional Ethics — thankfully the public uproar forced them to withdraw the plan *for now*.
Now Congress is set to put into place a terrible new law called Regulations from the Executive in Need of Scrutiny Act (REINS Act). This bill, which has died in the last 2 Congresses (and for good reason) essentially cripples executive agencies and their ability to create regulations to apply laws passed by Congress.
Currently, executive agencies develop regulations to apply new laws through careful study, research, and discussion with experts and the public — all proposed regulations are published in the Federal Register and the public is given a chance to comment in order to assist policy experts in writing solid regulations.
If REINS passes — and its passed the House twice but died in the Senate each time! — it will require all regulations passed by executive agencies (like the EPA) that have an “annual economic impact of $100 million or more,” which is less than 0.0006 percent of the U.S. economy, must be approved by Congress within “70 session days” or it does not go into effect. Essentially, Congress gets a “pocket veto”, if they do not affirmatively give their blessing within 70 days, the proposed regulation dies. REINS basically guts the system of checks and balances between our 3 branches of government upon which the US government rests.
The Federal government already works very slowly (when it works), but with one swipe of a pen, our government will be permanently crippled. Please, please please contact your members of Congress and let them know this is a BAD idea!!
The incoming House majority plans to schedule a vote on the Regulations from the Executive in Need of Scrutiny Act (REINS Act) soon after new members are sworn in next Tuesday. A top priority of the U.S. Chamber of Commerce, the leading lobby group for big business, REINS would fundamentally alter the federal government in ways that could hobble federal agencies during periods when the same party controls Congress and the White House — and absolutely cripple those agencies during periods of divided government.
Many federal laws delegate authority to agencies to work out the details of how to achieve relatively broad objectives set by the law itself. The agencies do so by drafting regulations that interpret and elaborate upon these statutes and which have the force of law. REINS, however, effectively strips agencies of much of this authority.
A story about Carl Malamud’s long fight to keep public information public. Details his current fight against a lawsuit that seeks to keep laws that cover building codes, plumbing regulations, and product safety rules for baby seats accessible only for a fee.
For the past 25 years or so, Carl Malamud’s lonely mission has been to seize on the internet’s potential for spreading information — public information that people have a right to see, hear, and read.
Georgia Claims Its Annotated Laws Are Covered By Copyright, Threatens Carl Malamud For Publishing The Law
Georgia Claims Its Annotated Laws Are Covered By Copyright, Threatens Carl Malamud For Publishing The Law, by Mike Masnick, techdirt (Jul 30, 2013).
Masnick notes that, technically, states that claim to be able to copyright their laws are on reasonably firm legal ground, even if they’re on completely illogical common sense ground but that fact “doesn’t make it any saner to claim such a copyright.”
Among other things, Georgia claims (apparently as a justification) that the unannotated Georgia Code is available to the public at no charge at www.legis.ga.gov. Masnick continues:
It’s not as if the state needed the “incentive” of copyright to publish an annotated version of the law. If anything, this seems like copyright misuse. But, even beyond that, it just seems counterproductive from a public policy standpoint to want to make your own laws harder to understand.
Carl Malamud has responded by respectfully declining to remove the Official Code of Georgia Annotated from Public.Resource.Org and quotes the Copyright Office: “Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.” Compendium II: Copyright Office Practices § 206.01 (1984)
Daniel Schuman of the Sunlight Foundation has a must-read post about the Government Printing Office, the Joint Committee on Printing, and The Statutes at Large:
GPO is Closing Gap on Public Access to Law at JCP’s Direction, But Much Work Remains, by Daniel Schuman, The Sunlight Foundation (Feb. 19, 2013).
The GPO’s recent electronic publication of all legislation enacted by Congress from 1951-2009 is noteworthy for several reasons. It makes available nearly 40 years of lawmaking that wasn’t previously available online from any official source, narrowing part of a much larger information gap. It meets one of three long-standing directives from Congress’s Joint Committee on Printing regarding public access to important legislative information. And it has published the information in a way that provides a platform for third-party providers to cleverly make use of the information. While more work is still needed to make important legislative information available to the public, this online release is a useful step in the right direction.