Terry Gerton You lead an oversight organization in the public domain. Why is the Freedom of Information Act so important to you?
Chioma Chukwu Well, the Freedom of Information Act is such an incredibly important tool that allows the public to get access to information about what the government is doing with taxpayers’ dollars, how they’re conducting activities, how they are conducting their day-to-day operations. All of that information is information that the public is entitled to. And the Freedom Of Information Act allows the people to access that information so that they can hold their government accountable.
]]>
Terry Gerton And you’ve just filed a suit against the Department of Energy over its ‘new,’ and I’m using my air quotes here, still interested confirmation policy. Tell us about what that means and what your lawsuit is all about.
Chioma Chukwu Well, the Department of Energy recently published a notice in the Federal Register, and the Federal Register, for those who are unfamiliar, think of it as the federal government’s daily newspaper where they publish the happenings of the federal government, rules and regulations that impact the public, and how the public can respond and provide comment to things that will impact those rules. And we learned that back in August, the Department of Energy had published this notice which essentially said for any requester, meaning people who have, and organizations that have used the Freedom of Information Act to request information from the Department of Energy, so any requester who has requested information prior to October 2024, that you have 30 days to let the Department of Energy know if you are still interested in that information. Otherwise, they will consider your request closed. Now this is highly problematic for several reasons. First, many people don’t even know what the Federal Register is. It is a very nuanced online register that folks have to be monitoring very closely in order to know what’s going on. It’s very dense. So if somebody happened to miss that window, that 30-day window, they would have no idea that they were at risk of having the request for information closed. The second reason why it’s highly problematic is because there’s nothing in FOIA that gives the Department of Energy this authority to respond to a requester’s request for information by affirmatively closing it. There are certain ways that Department of Energy can respond and we’re not taking issue with the question of whether or not somebody’s interested more generally. But to close the request when you don’t affirmatively hear back defies and undermines what Congress intended, which is a presumption of access for the public. And importantly, one thing to note is the Department of Energy only is affirmatively reaching out to individuals who have emails on file with the request. So this means people who mailed in their FOIA request, people who may have faxed in their FOIA request, did not leave an email address, and would have no way of knowing unless they are religiously checking the federal register for that 30-day window, that the information that they’ve been waiting for such a long time to provide answers about what the agency is doing, again, with their taxpayer’s dollars, they would have no way knowing that information is closed. So we filed suit because it is unlawful. It’s unlawful for several reasons. Again, FOIA does not allow the federal government to close requests affirmatively. There’s nothing in FOIA that permits that. Also, under the Administrative Procedure Act, which is a federal law that requires when an agency is going to change a rule that substantively affects the rights of a requester, we must have the ability to provide feedback, comments. That didn’t happen here. They closed it. People didn’t know. And now their request for information may be lost forever. That is unlawful. We believe that they did this arbitrarily and capriciously. And so that is why we filed our lawsuit.
Terry Gerton I’m speaking with Chioma Chukwu. She’s the executive director of American Oversight. As I understand it, Department of Energy said we have this huge backlog, we don’t have enough staff to take care of this, we’re just going to clean the books and start over. Is there any merit to any part of that argument?
Chioma Chukwu Well, that’s part of what we are hoping to understand. As a preliminary matter, an agency cannot use backlog as a justification to close requests. Again, they don’t have the right to close requests at all. And they certainly cannot use predictable workload concerns or backlog concerns to close requests of requesters. It is particularly important to note that this administration, which has been wreaking havoc across the federal government, by firing the very people who are processing Freedom of Information Act requests, closing entire offices, laying off tens of thousands of federal workers, cannot then turn around and say, we don’t have the resources to process these requests, and so we are going to close it. That cannot be allowed, that should not be allowed. That is unlawful under FOIA.
Terry Gerton You’ve also warned that DOE’s policy might be sort of the camel’s nose under the tent as a test case to see if this policy or this approach could spread to other agencies. Are you seeing evidence of that spread at this point?
Chioma Chukwu I regret to inform you that we have. We have already just recently seen with a different agency, USAID. Many people have heard of this independent agency that was completely dismantled by this administration. Many of the requesters, such as American Oversight, have been asking for information from USAID because we want to understand more about the decisions behind the efforts to dismantle the agency. We learned that recently USAID has similarly published a notice in the Federal Register seeking to affirmatively close requests that were sent before January 20th, 2025, so before this administration commenced. That being said, there’s a lot of information that the administration has taken down from public view that should be living in the archives of history, that we have deep concerns no longer exist. And so to the extent American Oversight and other similar requesters want information before January 20th, we also are being required to provide affirmative notice. Otherwise, those requests will be closed. Again, we have the same concerns that if we do not challenge these acts now, we are going to see this happening across agencies. And imagine that happening at an agency like the Department of Homeland Security. People are being disappeared. We’re trying to understand why these decisions are being made. So if we didn’t step up and file suit now, this may very well spread like wildfire, which is what we’re trying to prevent.
Terry Gerton I realize the suit is fairly young, but what would you hope for as a satisfactory resolution?
]]>
Chioma Chukwu We are asking the court to declare it unlawful. We are asking the court to say affirmatively that the agencies, that the administration does not have the ability to affirmatively close requests, that they exceeded their authority under FOIA, and that the actions were arbitrary and capricious in violation of the Administrative Procedure Act. That way, other agencies will be deterred from engaging in similar behavior. So we believe that this is the right vehicle to push back on this still interested requirement. And our hope is that other agencies take note of what we are doing here and comply with federal law and stop creating procedural roadblocks for requesters to get information that they’re entitled to.
Terry Gerton FOIA has always been complicated, but in this digital government world, it’s even more complicated. If you had a way back machine and you could go back to redesign FOIA or you had the opportunity to do it today, what sort of principles and practices would you want to put in an updated FOIA to make sure that you’ve got access, that you’ve got transparency, that you’ve got accountability, for people who want to make sure that the government is doing what it says it’s doing?
Chioma Chukwu I would say that reaffirming what the amendments of FOIA in 1996 and 2016 with the FOIA Improvement Act did, which is to make clear the presumption of disclosure for the requester community so that folks know that unless there is a valid exemption that applies, those records must be disclosed. That government should assume that the public wants access to that information unless they indicate otherwise, not the reverse. And so we’re, of course, we’re sensitive to agencies being underresourced. That is not a new phenomena. But the answer is not to create additional roadblocks for people who are trying to understand what their government is doing, particularly where the government is non-transparent. And if I could just note one thing, so people really understand why this matters, in 2023, there was reporting that a cadre of reporters had uncovered over 15,000 documents that had been sitting in the archives of history, records coming from the Department of Energy and its predecessor agencies. These records dated back to 1949, and these records essentially revealed that in St. Louis, there was a community near the Coldwater Creek that had radioactive waste stored in this community where families were living, young kids were playing for decades. And this radioactive waste, which had been around since post-World War II, had not been properly stored. Those contaminants were seeping into the water and making its way into the homes of these communities. And there became this proliferation of cancer, different kinds of cancers, brain cancer, prostate cancer, breast cancer. People were confused, they were perplexed, they didn’t know why, but they were being told by their government, there’s nothing to see here, there’s no concerns. The records that were uncovered, just in 2023, revealed that the Department of Energy knew the extent of the harm and that they were downplaying the harm. That would never have been uncovered had Department of energy been allowed to prematurely close these requests. That’s the kind of real impact that FOIA has by uncovering information that affects the day-to-day lives of average Americans and the decisions that our government is making that impacts us. And so I just want people to really understand, when we’re talking about FOIA, FOIA is a tool to understand what is happening and how you can demand more from your government that is supposed to work for you, not the other way around. And so that is one of the main reasons why we are out here fighting, because it’s not just American Oversight that’s impacted. There are many other requesters who don’t have access to the same resources that will be unable to uncover information that may impact generations to come.
Copyright
© 2025 Federal News Network. All rights reserved. This website is not intended for users located within the European Economic Area.
