In the December 9th edition of the Federal Register, the Department of Energy (DOE) announced a proposal to remove a discretionary clause governing Freedom Of Information Act (FOIA) exemptions. The “extra balancing test,” as written at 10 C.F.R. 1004.1, allows a FOIA officer to make records public which might otherwise be withheld if they deem it to be in the public interest. DOE claims that eliminating this rule would “streamline” the FOIA process, speed request responses, and get rid of “unnecessary administrative requirements.” They say that this rule is more or less vestigial anyway since it is not covered in the Justice Department's guide for FOIA exemptions.
While we are all for more efficient FOIA processing, POGO thinks that the extra balancing test is rather important. Without such a rule it would seem that a FOIA officer must withhold any information that falls under any exemption even if a compelling public interest exists.
This move seems foolishly secretive in the face of an incoming administration that appears to be pushing for more transparency and accountability.
-- Eric Orenstein