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The U.S. Department of Energy has found an underhanded way to rid itself of pending Freedom of Information Act requests en masse.
Earlier this month, the department published a notice in the Federal Register proclaiming that it will discard FOIA requests filed before Oct. 1, 2024, if requesters don’t email the agency to let it know that they are still interested in the information.
It’s a new twist on the dreaded “still interested” letters that agencies have been using for years to selectively purge long-lingering FOIA requests.
The letters typically are sent directly to select FOIA requesters, asking that they respond within 30 or 60 days if they don’t want their information request to be trashed.
As several professional journalism organizations have noted in recent days, there’s nothing in federal law that allows an agency to ditch a FOIA request if a response isn’t received. That, of course, hasn’t stopped it from happening.
The Department of Energy’s approach takes the “still interested” query to a whole new level by not just targeting a few old FOIA requests.
In addition to its blanket notice in the Federal Register, it is also sending letters to all FOIA requesters who sought information prior Oct. 1, 2024.
If requesters don’t email [email protected] within 30 days to insist that their requests continue to be processed, they will be dismissed.
Again, keep in mind that the purge will begin on any requests filed before October of last year. That’s not even that long ago, considering that it often takes more than a year for many FOIA requests to be processed.
In 2019, five federal agencies had pending FOIA requests that were more than 10 years old. One had a request more than 25 years old, an audit showed.
Today, FOIA backlogs at the George W. Bush and Barack Obama libraries alone amount to more than 300 million pages, according to the National Security Archive.
Founded by journalists and scholars to monitor government transparency, the organization estimates that would take the National Archives and Records Administration 622 years to work through those backlogs alone at the current rate.
The Department of Energy’s post in the Federal Register also notes that it is drowning in FOIA requests. It says information requests to the agency have more than tripled in the past four years, with more than 4,000 received in fiscal year 2024 and 5,000 or more expected this fiscal year.
The most telling part of agency’s post, though, is that it blames the increase on “vexatious requesters and automated bots.”
So why not take aim at the suspected bot requests, rather than lump into the purge legitimate requests from media organizations, watchdog organizations and interested citizens?
That would at least show good faith toward trying to be transparent, something that was the aim of the Freedom of Information Act when it was signed into law in 1966 and then significantly strengthened in 1974 in the aftermath of the Watergate scandal.
Sure, transparency can be time consuming and costly. Democracy can be messy. But that doesn’t mean we should throw out these concepts for expediency—or for potentially darker motives, like hiding information government leaders don’t want to see the light of day.
That’s why abuses like the “still interested” letters—and especially the Department of Energy’s massive use of them—should be stopped.•
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Greg Weaver is editor of The Indiana Lawyer. Contact him at [email protected].
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