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talkpoliticsAKA Ink and Incapability[/jokes]
So, the Justice Department has proposed new rules governing Freedom of Information Act requests for documents. Right now, you can get three responses to your FOIA request: "Sorry, that doesn't exist;" "Yes, it exists, and here are your documents," and "we can neither confirm nor deny that these records exist." Now, that third one is called a Glomar response. It allows the records-holder some leeway in cases where answering straight would jeopardize national security, or if it exposes an ongoing criminal investigation or private data of some sort. Reasonable enough. The issue is that they wanted to do away with this Glomar response, and substitute outright lying for their non-answer.
The proposed rule change would have allowed a records-keeper to give a "no records" response when it would have given a Glomar response before. Now, I want to put this aside, as Justice has decided to reconsider the rule change. What I want to discuss is why they had the power to even propose this, and whether that's appropriate.
A lot of federal statutes contain broad statements, that are particularized by the agencies responsible for administering the statute. That's perfectly valid, of course, in many situations. It only makes sense for, say, the Department of Labor to be able to set what notice requirements should exist in Family and Medical Leave Act cases. Otherwise, we'd have this long slog to the Supreme Court to define what "appropriate notice" is, and they'd probably say something along the lines of "the appropriate notice is the notice that's appropriate to the circumstances, considering our fifteen-factor balancing test outlined over the next forty pages..." So instead the DoL says "five days," and we're done.
The issue is that it's altogether too easy to rely on the administration for these quick-and-easy solutions to otherwise thorny problems of statutory interpretation. Congress has no real administrative rules-making apparatus that is subject to Congressional approval, other than the body that makes rules for the courts. By contrast, almost every executive agency has the power and, often, statutory requirement to interpret a law and make rules to carry it forth. And again, for most issues that's fine, but here we're dealing with a law designed to promote governmental transparency, which is used primarily against executive-branch agencies. And yet, those same agencies are trusted with setting the rules under which they must comply with the law.
This is further complicated because normally, if someone is applying a law incorrectly, then you can challenge it in court and expect to get a fair hearing of both sides. However, when it's an agency interpreting a statute that it administers, and it does the interpretation through what is called "notice and comment" rulemaking (which is how the vast majority of rules are made, including the Glomar rule change), the game changes drastically. The courts are required by a doctrine called Chevron deference to presume that the agency's interpretation is correct. Instead of asking whether the agency got the statute correct, the court is reduced to a sort of low-level "smell" test. If the agency's interpretations are "permissible," then the court is bound to uphold them, even if the interpretation is less than optimal, or even outright problematic.
Again, this may not be so bad in many cases. Allowing every interested actor to challenge agencies on their rules would throw a few hundred thousand wrenches into the works, and basically bring the administrative arm of government to a standstill while they litigate their rules to death. But where the government is set to watch over itself, as with FOIA, the FEC, and other "watchdog" laws, such a high level of deference is totally inappropriate. An organization that makes its own rules can hardly be expected to balance the interests of others appropriately. So, we end up with what we have here: an agency bound by the statute, attempting to limit the statute to accomplish their own goals, without considering what a rule allowing the government to lie to you about your request for transparency actually means for public confidence, the rule of law, and the transparency the act is designed to safeguard.
So, what's the solution? At least for FOIA, I think there should be a sort of "legislative administration" - a legislative committee that must approve any rule changes. Might have been a terrible idea when the regulations were first being considered, just for time reasons, but now that it's pretty much solidified and the issue is changes to those regulations, Congress should probably control what changes are made. The process doesn't need to be extremely complicated, either. Go back to that one Congressional rules committee I mentioned before: the group that makes the Federal Rules of evidence, civil procedure, criminal procedure, et al. That body submits a proposed rule to Congress, who then has a certain time period to either reject it or approve it. If they do nothing, it's ratified into the rules by default. The system works - it allows public review of changes, forces the rule-changers to justify themselves, and provides a simple, cheap and politically low-cost veto power over changes. Right now, if you want to overrule what Justice proposed, you would need to actually amend the statute to make it clear that you foreclose this possibility, a far more complicated process, and one more fraught with political complications. By comparison, all that's necessary for a Justice Department rule on FOIA to attain Chevron deference is that they give notice of the proposed change,
Why Congress, though? I mean, they're subject to FOIA requests as well. Definitely true, but they're subject to far fewer, as a direct result of being far smaller than the executive branch. Moreover, Congress can be more responsive, because the actual, elected Congresscritters would have an opportunity to question and vote on the rule change. In comparison, the people making rules changes at Justice are a combination of "non-political" employees, Presidential appointees, and joint President-Senate appointees. The number of people between the rules change and an elected official is greater, so there are fewer means of accountability if people want to vote the rule out. Still open to abuse, but more easily corrected, and requires individuals to put their publicly-reviewed jobs on the line.
So, the Justice Department has proposed new rules governing Freedom of Information Act requests for documents. Right now, you can get three responses to your FOIA request: "Sorry, that doesn't exist;" "Yes, it exists, and here are your documents," and "we can neither confirm nor deny that these records exist." Now, that third one is called a Glomar response. It allows the records-holder some leeway in cases where answering straight would jeopardize national security, or if it exposes an ongoing criminal investigation or private data of some sort. Reasonable enough. The issue is that they wanted to do away with this Glomar response, and substitute outright lying for their non-answer.
The proposed rule change would have allowed a records-keeper to give a "no records" response when it would have given a Glomar response before. Now, I want to put this aside, as Justice has decided to reconsider the rule change. What I want to discuss is why they had the power to even propose this, and whether that's appropriate.
A lot of federal statutes contain broad statements, that are particularized by the agencies responsible for administering the statute. That's perfectly valid, of course, in many situations. It only makes sense for, say, the Department of Labor to be able to set what notice requirements should exist in Family and Medical Leave Act cases. Otherwise, we'd have this long slog to the Supreme Court to define what "appropriate notice" is, and they'd probably say something along the lines of "the appropriate notice is the notice that's appropriate to the circumstances, considering our fifteen-factor balancing test outlined over the next forty pages..." So instead the DoL says "five days," and we're done.
The issue is that it's altogether too easy to rely on the administration for these quick-and-easy solutions to otherwise thorny problems of statutory interpretation. Congress has no real administrative rules-making apparatus that is subject to Congressional approval, other than the body that makes rules for the courts. By contrast, almost every executive agency has the power and, often, statutory requirement to interpret a law and make rules to carry it forth. And again, for most issues that's fine, but here we're dealing with a law designed to promote governmental transparency, which is used primarily against executive-branch agencies. And yet, those same agencies are trusted with setting the rules under which they must comply with the law.
This is further complicated because normally, if someone is applying a law incorrectly, then you can challenge it in court and expect to get a fair hearing of both sides. However, when it's an agency interpreting a statute that it administers, and it does the interpretation through what is called "notice and comment" rulemaking (which is how the vast majority of rules are made, including the Glomar rule change), the game changes drastically. The courts are required by a doctrine called Chevron deference to presume that the agency's interpretation is correct. Instead of asking whether the agency got the statute correct, the court is reduced to a sort of low-level "smell" test. If the agency's interpretations are "permissible," then the court is bound to uphold them, even if the interpretation is less than optimal, or even outright problematic.
Again, this may not be so bad in many cases. Allowing every interested actor to challenge agencies on their rules would throw a few hundred thousand wrenches into the works, and basically bring the administrative arm of government to a standstill while they litigate their rules to death. But where the government is set to watch over itself, as with FOIA, the FEC, and other "watchdog" laws, such a high level of deference is totally inappropriate. An organization that makes its own rules can hardly be expected to balance the interests of others appropriately. So, we end up with what we have here: an agency bound by the statute, attempting to limit the statute to accomplish their own goals, without considering what a rule allowing the government to lie to you about your request for transparency actually means for public confidence, the rule of law, and the transparency the act is designed to safeguard.
So, what's the solution? At least for FOIA, I think there should be a sort of "legislative administration" - a legislative committee that must approve any rule changes. Might have been a terrible idea when the regulations were first being considered, just for time reasons, but now that it's pretty much solidified and the issue is changes to those regulations, Congress should probably control what changes are made. The process doesn't need to be extremely complicated, either. Go back to that one Congressional rules committee I mentioned before: the group that makes the Federal Rules of evidence, civil procedure, criminal procedure, et al. That body submits a proposed rule to Congress, who then has a certain time period to either reject it or approve it. If they do nothing, it's ratified into the rules by default. The system works - it allows public review of changes, forces the rule-changers to justify themselves, and provides a simple, cheap and politically low-cost veto power over changes. Right now, if you want to overrule what Justice proposed, you would need to actually amend the statute to make it clear that you foreclose this possibility, a far more complicated process, and one more fraught with political complications. By comparison, all that's necessary for a Justice Department rule on FOIA to attain Chevron deference is that they give notice of the proposed change,
Why Congress, though? I mean, they're subject to FOIA requests as well. Definitely true, but they're subject to far fewer, as a direct result of being far smaller than the executive branch. Moreover, Congress can be more responsive, because the actual, elected Congresscritters would have an opportunity to question and vote on the rule change. In comparison, the people making rules changes at Justice are a combination of "non-political" employees, Presidential appointees, and joint President-Senate appointees. The number of people between the rules change and an elected official is greater, so there are fewer means of accountability if people want to vote the rule out. Still open to abuse, but more easily corrected, and requires individuals to put their publicly-reviewed jobs on the line.
Re: 2 cents from an archivist and former state employee
Date: 9/11/11 21:02 (UTC)Re: 2 cents from an archivist and former state employee
Date: 9/11/11 21:08 (UTC)