On Dec. 9, 2008, the Department of Energy (DOE) published a proposed rule that would revise its official Freedom of Information Act (FOIA) regulations to remove a 20-year-old requirement for weighing the public interest in records disclosure decisions. In the same rulemaking, DOE also proposed to raise FOIA copying fees from five cents to 20 cents a page.

The rule would remove one sentence from the agency's FOIA regulations. The sentence requires the use of a public interest "balancing test" and states, "To the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under [FOIA] whenever it determines that such disclosure is in the public interest." OMB Watch and other groups, including the National Security Archive and the Federation of American Scientists, submitted comments opposing the rule change.

Balancing Test and FOIA Requirements

In the proposed rule change, DOE argued that the balancing test goes "beyond the requirements of FOIA." However, OMB Watch contends that it represents a process to ensure agency compliance with the law, additional statues, and court rulings related to FOIA. In fact, the sentence embodied the decisions of a U.S. Supreme Court opinion in 1976 that held, "Disclosure, not secrecy, is the dominant objective of the [FOIA]." The opinion was upheld in 1991 when the Court stated that FOIA established a "strong presumption in favor of disclosure." While neither the original law nor any amendments specifically require an agency to implement a balancing test, both the statutory history and court decisions make it clear that under FOIA, agencies are expected to use reasonable mechanisms to identify information for public disclosure.

Agency Burden

The primary charge DOE levels against the public interest balancing test is that implementing the test places an undue burden on the agency. However, DOE fails to provide any details concerning financial, personnel, or time costs borne by the department because of the test. OMB Watch insisted that DOE must "provide sufficient information and supporting documentation" for a proper public comment process. The National Security Archive argued, in its comments, that proactive release of information in the public interest actually reduces burden on the DOE's FOIA program. The Archive stated, "DOE will receive fewer requests for the same information if it releases records to journalists and others who will publish it or posts frequently requested records as required by E-FOIA."

The department also claimed in the proposed rule that the test forces the agency "to reconsider a determination." Despite this claim, the simple balancing test language merely requires the agency to consider public interest along with other components when making disclosure decisions.

Impact of Balancing Test on Disclosure

The department stated in the proposed rule that "the extra balancing test does not alter the outcome of the decision to withhold information," explaining that instead, the DOE follows Department of Justice guidance, without elaborating on precisely which guidance DOE uses. It is somewhat perplexing that DOE claims an undue burden from the balancing test, while also stating the test does not alter any decisions. This lack of information and apparent paradox makes it impossible for commenters to appropriately respond. The 2001 FOIA memorandum from then-Attorney General John Ashcroft, restricts discretionary disclosures and promotes withholding information when there is a "sound legal basis" to do so. However, other FOIA guidance indicates an agency has flexibility on discretionary releases and would seem to argue for just such a balancing test to help determine which records should be disclosed.

Copying Costs

The DOE described an increase in copying fees from five cents to 20 cents a page as "modest and reasonable" and "more reflective of current costs and would bring DOE into conformity with the rest of the government." However, several aspects of this characterization appear difficult to defend. While 20 cents per page could be considered a modest amount of money, it would be difficult to describe a 400 percent increase as "modest." The proposed fee also does not match other major agencies. According to Federal Register records, the departments of State, Justice, Interior, and Homeland Security all have copying fees less than 20 cents per page. DOE has also not provided any information about current copying costs incurred by the department and how the proposed fee increase better reflects those costs.

Timing of the Proposed Rule

OMB Watch recommended that DOE withdraw the proposed rule until after the incoming Obama administration has established its FOIA guidance to agencies. If a rule change were still necessary, OMB Watch argued that additional information would be needed on the following issues:

• Burden imposed on the agency by the public interest balancing test
• Process by which the balancing test is administered
• Department of Justice guidance being referenced
• Copying charges assessed under FOIA by other agencies
• DOE's costs associated with copying records

Comments were accepted for only 30 days, and the comment period was conducted during the holiday season. Comments were due by Jan. 8.

The incoming administration will almost certainly bring with it new guidance on FOIA. There will likely be a new Attorney General memorandum on FOIA, along with other new policies and guidance from the Department of Justice. Given that an incoming administration means changes to the guidance are likely in the near term, OMB Watch argued that hurried rules "can be burdensome to the taxpayer as they are often challenged in court. They also prevent the completion of a thorough and proper democratic process by minimizing public scrutiny and participation."