If this is FOIA victory, what does defeat look like?

Wednesday, April 9, 2008

That we’re calling the ruling in Citizen Action v. United States Department of Energy a victory says much about the Freedom of Information Act.

Yes, U.S. District Judge Robert Brack took the National Nuclear Security Administration to task for its “kafkaesque” process for reviewing FOIA requests. And, yes, Brack ruled the NNSA violated FOIA by failing to respond to Citizen Action’s requests in a timely manner.

Yet for everything favorable in Brack’s March 31 opinion, a simple fact remains: Citizen Action still has not received some of the information it requested as long ago as 2004.

At issue in Citizen Action is the group’s effort to obtain documents concerning the location and inventory of radioactive and other hazardous materials in a mixed-waste landfill at Sandia National Laboratories in Albuquerque, N.M. Among the documents Citizen Action requested were the laboratory’s Ten Year Comprehensive Site Plans (“TYCSPs”), which each NNSA site office produces annually to describe its programs, measure its performance and announce its budget and cost projections.

Citizen Action requested the 2004 TYCSP in August 2005. At the time, the group was waiting for the NNSA to respond to its July 2004 request for information regarding the hazardous waste constituents stored at the site. Although the NNSA in October 2005 produced some of the documents responsive to the July 2004 request, it took the NNSA an additional year to provide even a redacted copy of the 2004 TYCSP.

These response times, of course, are well in excess of the 20 days established by FOIA. As Brack noted, however, the multilayered review process created by the agency made it practically impossible for the NNSA to comply with the law.

Citizen Action’s request for the 2004 TYCSP, for example, started in the Albuquerque Service Center, which is responsible for processing FOIA requests for seven of the NNSA’s eight site offices. The service center then forwarded the request to the Sandia site office. The site office then sent the request to its management and operating contractor and directed the contractor to identify any potential classified or sensitive information in the responsive records.

After identifying this information, the contractor returned the request to the site office, where the site-office manager determined the TYCSP could be released, with certain redactions. The office manager then sent this recommendation back to the service center, where the FOIA officer determined the identified redactions were permitted under FOIA and prepared a draft response to the FOIA request. The draft response then was reviewed by the NNSA legal office in Albuquerque.

The FOIA officer, however, did not agree that all of the recommended redactions were permitted by FOIA. She therefore requested that the site office re-review all three TYCSPs. The 2004 TYCSP then was reviewed a third time, after it was determined that some of the information slated for redaction already had been publicly released.

Finally, in October 2006, the NNSA provided Citizen Action a redacted copy of the 2004 TYCSP. A redacted copy of the 2006 TYCSP was produced next, in February 2007. A redacted copy of the 2005 TYCSP was produced in June 2007, more than 18 months after it had been requested. Still not produced, however, were records the agency refused to provide in response to the 2004 request and records requested in November 2006 regarding operations of the Sandia laboratory.

Noting that Congress and the courts intended agencies to respond to FOIA requests within the 20-day timeframe, Brack rejected the NNSA’s claim that its layered review process effectively exempted the agency from this requirement.

“FOIA requirements apply with equal force to situations involving national security, sensational, or complex issues,” Brack wrote. “In sum, Defendant’s reliance on the complexity and sensitive nature of the documents at issue is inconsistent with its duties and obligations under FOIA.”

Yet even after holding that NNSA’s conduct “constituted a continuing pattern and practice of unlawful delay within the meaning of FOIA,” Brack refused to order immediate release of the documents or even to set a deadline for the release.

“[D]ue to the sensitive nature of the information requested, I am reluctant to impose arbitrary time limits,” Brack wrote. Imposing such limits, he said, also would force Citizen Action’s requests to the front of the line and punish FOIA requesters who had not sued. Therefore, he wrote, “I believe that an agreement between the parties would offer a more appropriate remedy than a court-mandated fiat.”

Accordingly, Brack ordered the NNSA and Citizen Action “to confer on a reasonable time frame for responding to pending requests and for processing future requests,” hinting that if the parties were unable to agree on a time frame, he would impose one. A hearing on this issue, he said, would be scheduled in conjunction with a hearing on the appropriateness of the redactions — a question he has not yet addressed — “as the calendar of the Court permits.”

At this point, it seems unlikely the court’s calendar will permit a decision on the redactions and other issues before this fall, which will be three years after Citizen Action requested the 2004 TYCSP. If we consider this a victory, we’ve set the bar pretty low.

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