The Hon. Ben Nighthorse Campbell
The Hon. Daniel K. Inouye
Committee on Indian Affairs
United States Senate
836 Hart Office Building
Washington, DC 20510
Senators Campbell and Inouye:
The undersigned organizations and individuals are extremely troubled by a portion of S. 297, the Federal Acknowledgment Process Reform Act of 2003.
Section 7 of the bill, which was adopted during a June 16 meeting of the Senate Committee on Indian Affairs, exempts from the Freedom of Information Act (FOIA) any actions by the Interior Department's Assistant Secretary for Indian Affairs (AS-IA) on any Indian group's petitions for acknowledgment until the petition has been "fully documented" and the AS-IA publishes a notice of receipt of the petition in the Federal Register. Further, the FOIA exemption would not apply to formal or informal requests or subpoenas by U.S. law enforcement agencies.
In addition, the amendment gives the Interior Secretary the authority to ask for help from the Attorney General in responding to FOIA requests, and would authorize $1 million for each of fiscal years 2004-2008 (up to $5 million total) to the Justice Department for FOIA assistance.
We understand that your committee staff stated in a June 14 memorandum that the purpose of S. 297 is "to increase the transparency, consistency and integrity of the [tribal] acknowledgment process." As you are aware, the 1996 E-FOIA Amendments require agencies to put frequently requested (more than 2-3 anticipated requests for information released under FOIA) records online in an E-FOIA reading room. Moreover, the E-Government Act encourages agencies to move toward electronic rulemaking and to create online dockets. Creating on-line dockets for each application where all information is readily and immediately available to the public electronically will increase the transparency, consistency and integrity of the tribal acknowledgment process, the most important point in the decision-making process in U.S.-tribal relations. It would also generate greater efficiency and cost-saving.
The same memo notes testimony from two former assistant secretaries of Indian Affairs that "the extent, frequency, and duplicative nature of FOIA requests" to the Bureau of Indian Affairs on petitions pose a problem. Gutting the Freedom of Information Act, as Section 7 would do in this case, is wholly inconsistent with any solution that proposes to increase transparency in the acknowledgment process. This approach, instead, makes the acknowledgment process more obscure. Requiring the BIA to follow the mandates of the E-FOIA Act will eliminate the FOIA backlog issue more effectively and bring about more, not less, transparency. Removing the acknowledgment process from FOIA is an unacceptable remedy for a backlog problem. We have included several alternative options used by other government agencies that the Bureau of Indian Affairs could adopt to address its backlog of FOIA requests. In fact, the bill provides elsewhere that the notice of the recognition filing shall include "information describing 1 or more locations at which a copy of the petition and related submissions may be examined by the public." This would suggest that the entire record of submitted by the tribe would be publicly available. As a result, it is unclear why that information could not be posted publicly and electronically, as provided under the E-FOI Act.
As you consider this, we believe it especially noteworthy that in recent years, FOIA requests have played an important role in uncovering federal abuses of tribal rights. A FOIA request from the Navajo Nation revealed an ex parte meeting with former Interior Secretary Donald Hodel. And a FOIA request from the Indian Law Resource Center, on behalf of Hopi traditional elders, uncovered abuses of power by John Boyden, counsel to the recognized Hopi tribe - including abuses during the tribal recognition process. Even today, there are ongoing complaints from Native American groups claiming their recognition applications have been unduly delayed or denied. With casino gaming license rights a major consequence of certain applications for recognition, the documents involved in processing and granting such recognition should be even more subject to the espoused goals of this legislation: increasing transparency in the tribal acknowledgment process. Provisions that make the process more opaque and less accountable should be rejected.
We respectfully request that Section 7 be deleted from S. 297 or amended to require the Bureau of Indian Affairs to adhere to the requirements of the E-FOIA amendments and the E-Government Act. If there are documents covered by the recognition process, for which tribes seek an exemption by virtue of sovereignty or privacy considerations, the appropriate existing exemptions to FOIA should address them. (See Attachment 1.)
We are ready and willing to work with your committee staffs to draft language that would bring true integrity and transparency to the acknowledgment process while adhering to FOIA provisions. Insofar as discussions would address the use of existing exemptions for the protection of documents (1) covered by tribal assertions of sovereignty pertaining to otherwise secret information; or (2) privacy claims to information required by the recognition process, we urge you to consult us to identify the appropriate Native American groups to participate in those discussions.
Patrice McDermott, Deputy Director,
Office of Government Relations
American Library Association
Robert H. Johnson, Executive Director
New Mexico Foundation for Open Government
David L. Sobel, General Counsel
Electronic Privacy Information Center
Charles N. Davis, Executive Director
Freedom of Information Center
University of Missouri School of Journalism
Meredith Fuchs, General Counsel
National Security Archive
George Washington University
Danielle Brian, Executive Director
Project On Government Oversight
Lucy Dalglish, Executive Director
Reporters Committee for Freedom of the Press
Mary Alice Baish, Associate
Washington Affairs Representative
American Association of Law Libraries
E.B. Williams Law Library
Georgetown University Law Center
Karla Garrett Harshaw, President
American Society of Newspaper Editors
Dwight Hines, Ph.D., Writer
Sean Moulton, Senior Policy Analyst
|William Ferroggiaro, Writer and Consultant|
Susan Dente Ross, Director
Washington State University
|Dave Jackson, Freelance Investigative Journalist|
Terry Francke, General Counsel
cc: Hon. Orrin Hatch, Senate Judiciary Committee
Hon. Patrick Leahy, Senate Judiciary Committee
Hon. Susan Collins, Senate Committee on Governmental Affairs
Hon. Joseph Lieberman, Senate Committee on Governmental Affairs
We discern in Section 7 a second FOIA-related issue that has long concerned Native American tribes. As a general proposition, tribes do not believe their internal documents should be subject to the federal FOI Act. (See Rebecca Anderson, "Wakeup Call on Sovereignty," Indian Country Today, May 30, 2001.) The Supreme Court ruled in Dept. of Interior v. Klamath Water Users, 532 U.S. 1 (2001) that confidential tribal documents addressing tribal interests (water allocations) shared with the Interior Department do not meet the standards for FOIA exemption 5 (set aside for "intra-agency" documents otherwise held as privileged documents in civil discovery). Although several of the organizational signatories to this letter filed amicus curiae briefs in that case, we do not preclude the possibility that confidential information submitted by tribes to federal agencies might properly qualify under some other exemption from disclosure.
Although the language of S. 297 does not suggest that Section 7 was originally intended to protect confidential information submitted by tribal groups, we believe that existing FOIA exemptions would have to provide the grounds for withholding them. For example, where individuals and their families - whose marital relationships and descent are necessarily the subject of BIA analysis to determine the continuous existence of a tribe - are required to submit confidential and personal information, the information they submit might qualify for exemption from release under FOIA privacy provisions. Information for which the group asserts a confidentiality exemption as a communication from a sovereign entity would have to be reconciled with existing provisions, which may also qualify under provisions that protect foreign government information acquired with an expectation of confidentiality. Thus, certain information such as tribal governance arrangements which are secret would be protected, but information that is widely public - such as maps or published lists of officials - would not be. Under no circumstances should such information be put outside the reach of FOIA by making it exempt from FOIA; it can be handled under existing exemptions. Moreover, such exemptions would be applicable to BIA documents only to the extent that they contained exempt tribal information.
Streamlining the FOIA process: Three examples
Other federal agencies have found ways to streamline the FOIA process while honoring the provisions of the Freedom of Information Act. Three examples are presented below:
- The Securities and Exchange Commission (SEC) recently announced that it will provide to the public staff comments on disclosure filings and responses to staff comments - which may include several rounds of commenting and responding - instead of requiring FOIA requests for the information. As the agency explained: "In recent months, an increasing number of our comment letters and filer responses to them are being released publicly through the FOIA process, but only to those persons who make FOIA requests for them. We believe it is appropriate to expand the transparency of the comment process so that this information is available to a broader audience, free of charge. We intend to do this through the Commission's Public Dissemination Service and on our website at www.sec.gov (EDGAR data on the SEC Public Website). Public access to this correspondence will no longer require a FOIA request." (SEC Press Statement of June 24, 2004; available at http://www.sec.gov/news/press/2004-89.htm [last viewed June 25, 2004]).
- The Office of Foreign Asset Control of the Department of the Treasury (OFAC) has decided to routinely publish information about civil penalties and informal settlements. In response to comments that the information is available under FOIA, OFAC stated that it "has found, however, that processing FOIA requests for this type of information on an ad hoc basis is not the most efficient use of its limited resources." 68 Fed. Reg. 6820, 6821 (Feb. 11, 2003).
- The Integrated Acquisition Environment (IAE) program office of the General Services Administration initiated a pilot program to begin making Federal contracts available to the general public on the worldwide web. The pilot effort is intended to increase transparency in agency acquisition activities through the effective use of technology and to reduce repetitive FOIA requests. 68 Fed. Reg. 33950-33951 (June 6, 2003).