A proposed new Department of Energy regulation would eliminate the so-called “public interest” balancing test that encourages DOE officials to release information under the Freedom of Information Act even when it is legally exempt from disclosure if doing so would serve the public interest.
“This proposed rule would remove the so-called ‘extra balancing test’… which states: ‘To the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under [the FOIA] whenever it determines that such disclosure is in the public interest’,” according to the December 9 proposal published in the Federal Register.
“This additional [public interest balancing] test requires DOE to make available records that could be withheld under the FOIA exemptions, if DOE determines that disclosure would be in the public interest. DOE is proposing to remove the extra balancing test, because it goes beyond the requirements of the FOIA, and imposes unnecessary administrative requirements on DOE.”
It is true, by definition, that the balancing test in the existing DOE regulation “goes beyond the requirements of the FOIA,” because it encourages disclosure of records the release of which is not legally required.
But in an apparent non-sequitur, DOE also said that “the extra balancing test does not alter the outcome of the decision to withhold information, as DOE already incorporates Department of Justice guidance in applying exemptions when determining whether or not to make a discretionary release of information.”
The difficulty with that statement is that current Department of Justice guidance on discretionary release does not require explicit consideration of the public interest in disclosure of exempt information. To the contrary, it promotes withholding of exempt information and promises to defend agencies whenever they legally withhold such information.
In effect, the existing DOE regulation incorporates the 1993 FOIA policy enunciated by then-Attorney General Janet Reno (and long since abandoned by other agencies) which encouraged discretionary disclosures unless there was a “foreseeable harm” to a legitimate government interest. And the proposed new DOE revision reflects the 2001 FOIA policy of Attorney General John Ashcroft, who discouraged discretionary releases (though he did not prohibit them) and urged withholding of records whenever there was a “sound legal basis” for doing so. As noted in a November 19, 2001 Defense Department memo (pdf), under the Ashcroft FOIA policy “Discretionary disclosures are no longer encouraged.”
It is interesting to observe that with the current DOE FOIA regulation in effect there has been a striking difference in FOIA implementation between the Department of Energy and other agencies.
Earlier this year, for example, President Bush ordered executive branch agencies to provide comments on the recommendations of the Public Interest Declassification Board for improving declassification practices. Requests under the Freedom of Information Act for copies of these comments were consistently rejected by the Office of the Director of National Intelligence, the Department of Defense, the Department of Homeland Security and other agencies. These agencies correctly noted that the comments were inter-agency deliberative materials that were exempt from disclosure under FOIA exemption (b)(5).
But one agency released its comments in full, despite the availability of an exemption: the Department of Energy. (See “Energy Dept is ‘Committed’ to Improving Declassification,” Secrecy News, June 5). In other words, it appears that the public interest balancing test and the approach to FOIA that it represents do alter the outcome of the disclosure decision process at DOE.
In comments on the proposed regulation submitted by the Federation of American Scientists, we argued that “there is a widespread and well-founded expectation that the incoming Obama Administration will rescind the Ashcroft FOIA policy and define a more forthcoming disclosure policy. In light of that probable scenario, I would urge DOE to cancel its proposed revision of [the public interest balancing test], or else to suspend action on it for six months while the new Administration prepares new government-wide FOIA guidance.”