Justice Department’s New FOIA Regulations: Still Worse than Reported


Since the last time we wrote about the DOJ’s newly proposed FOIA regulations, as part of signing on to EPIC’s comments on the proposed rule, not a whole lot has changed.

The DOJ sent a letter to respond to Congressional concerns about their lying about the existence of records.  The letter hardly paints a clear picture, but basically says that the DOJ will withdraw a section of the proposed regulations, but that their conduct won’t change, and that they’ll continue to mislead requesters about whether records exist or not.

Unmentioned in the letter, however, are all the steps backward on FOIA that the DOJ is proposing in their rules. In a package completely at odds with President Obama and Attorney General Holder’s public FOIA rhetoric, the new DOJ rules throw up new roadblocks and hurdles to requesters, and generally make it easier to deny requests. One has to wonder what possible motivation DOJ has for forcing elementary schools to pay for FOIA requests, where they used to qualify for fee waivers. Have elementary school students’ FOI requests become a burden?

There is now a growing consensus among open government groups about the problematic aspects of the pending FOIA regulations.  While a broader consensus view on the proposed regs has been somewhat slow in developing, that lies in part because it’s so difficult to track down the changes to the regulations.  They were published in the Federal Register, but a ten page wall of text isn’t easy to interpret for nuanced single word changes that may end up having enormous consequences.  After repeated tries, we’ve managed to create a side by side redlined version of the new regulations, to help illuminate the differences.  (To be more precise, Daniel Schuman did, using a Word process I still can’t emulate.)

In just one example, the new regulations change this:

Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA.

…to this:

Records that are identified as responsive to a request will not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.

The difference is minor, but important.  The new regulations permit records to be disposed of as long as they haven’t been affirmatively “identified as responsive.” Ill-intentioned FOIA officers would face a new choice when confronted with an inconvenient request: attempt to identify new records, or perhaps just destroy them, in order to avoid identifying any responsive records.

A similar pattern repeats itself throughout the proposed rules. Requesters “must” address requests to the appropriate department. Insufficient requester detail becomes grounds for dismissing a request. News stories can no longer be used to justify the urgency of a request. Businesses are no longer required to affirmatively justify the withholding of trade secrets. Media requester status is bestowed based on the “intended use” and must be re-established for each request.

It’s very difficult to interpret many of these changes as reflecting anything other than intending to empower obfuscation, and take the teeth out of FOIA.  Beyond the concerns over lying about the existence of records, DOJ’s proposed regulations cause doubt of their dedication to enforcing the law, and appear instead to be an attempt to undermine it.