The Western Pacific Fishery Management Council’s vote to make certain records available to the public only through Freedom of Information Act requests and others available not at all came exactly one week after U.S. Attorney General Eric Holder issued instructions to federal agencies that they should not only presume records are open, but should also “make discretionary disclosures of information.”
“As President Obama instructed in his January 21 FOIA Memorandum,” Holder wrote, “ ‘The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.’”
Even if an agency can demonstrate, “as a technical matter, that the records fall within the scope of a FOIA exemption,” he wrote, that is in itself not sufficient reason for withholding them.
“At the same time, the disclosure obligation under the FOIA is not absolute,” he wrote. “The act provides exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests. But as the President stated in his memorandum, ‘The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.’”
Under guidelines issued by former Attorney General John Ashcroft on October 12, 2001, the Department of Justice would defend agencies against FOIA claims unless the agencies lacked a “sound legal basis or [disclosures] present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”
Now, wrote Holder, “the Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.”
Holder admonished agencies against establishing “unnecessary bureaucratic hurdles,” saying they have no place in the “new era of open government that the president has proclaimed.”
“Open government requires agencies to work proactively and respond to requests promptly,” he continued. Obama’s memorandum instructs agencies “to use modern technology to inform citizens what is known and done by their government,” he wrote. “Accordingly, agencies should readily and systematically post information online in advance of any public request. Providing more information online reduces the need for individualized requests and may help reduce existing backlogs.”
Contrarian Moves
Wespac, which has never been aggressive in defending the public’s right to know what the council is doing, would now seem to be swimming against the current set by the Obama and Holder memos. Whether, or for how long, it can continue to do so is the question on many people’s minds these days.
For the last two years, council actions have been the subject of numerous FOIA requests, including several by this publication.
Last January, three groups filed a lawsuit in U.S. District Court in Honolulu against the council, the NMFS Pacific Islands Regional Office, and the Department of Commerce, alleging the agencies have failed to comply with the requirements of the Freedom of Information Act. The groups – the LOST FISH Coalition, the Conservation Council for Hawai`i, and KAHEA: The Hawaiian Environmental Alliance – allege that by not responding within the time frame set by FOIA to their requests for information, the federal agencies effectively are in violation of FOIA.
The initial FOIA request, seeking information on the council’s federal grants, budgets, and contracts, was filed by LOST FISH in November 2007, with CCH and KAHEA also as parties to the request. NMFS provided “some information,” the complaint states, but asked the coalition to refine its request, which it did in April 2008. Since then, according to the lawsuit, no further response to the FOIA has been received.
A year ago, the coalition filed a formal appeal, arguing that withholding of the records constituted denial. NMFS had not issued a decision on that appeal by the time the litigation commenced in January.
According to the complaint, “Wespac executive director Kitty Simonds has repeatedly stated that Wespac contracts and other records are freely available to the public at the Wespac library during Wespac business hours. Yet when LOST FISH attempted to access this information in the fall of 2007, through direct visits to the Wespac library during business hours and subsequent non-FOIA requests to Ms. Simonds, Ms. Simonds repeatedly denied LOST FISH access to the information.”
No date for a hearing had been set as of mid-April.
And an Appeal
Over the last 18 months, Environment Hawai`i has filed three formal FOIA requests for records that should be held by the council. In March, final responses were provided by NMFS to two of them. A response to the third was in process at press time.
In one instance, the information sought – documents relating to contracts between the council and the various parties who organized the series of puwalu on behalf of the council – was finally provided, some 16 months after the request was made.
In the second case, information was sought concerning several federal grants awarded to the council and travel records for Simonds and five council members. The records provided in the response were incomplete, and in the case of the travel records, altogether absent. According to the letter drafted by Kelvin Char, FOIA officer for the PIRO office since last summer, with respect to travel records, “the council indicated that no responsive records were located.” (Char also happens to be the NMFS staffer charged with overseeing council compliance with terms of its many federal grants, worth several million dollars a year.)
The response indicates one of the problems NMFS faces. By law, the NMFS regional offices are charged with handling the FOIA requests seeking records maintained by the councils. In the case of Wespac, the Pacific Islands Regional Office in Honolulu serves as the liaison between the requester and the council.
If council staff did indeed state, as Char maintains, that it found no records responsive to the request for information on travel, then there are only a few explanations – none good. The council never required documentation of travel to be made in the first place. Or the documentation was received but destroyed. Or Wespac has lost the records. Or, finally, the council is lying to NMFS.
Environment Hawai`i is appealing the effective denial of these records. The appeal notes that under the terms of the grants that Wespac receives, the council is required to retain such records and make them available to NMFS. Over and above the requirements imposed on recipients of grants, the council is subject to the record-retention requirements imposed on federal agencies. Under the regulations of the National Oceanic and Atmospheric Administration, “Council records must be handled in accordance with NOAA records management office procedures. All records and documents created or received by council employees … belong to the Federal Government.”
“While we understand that FOIA requests for council records are to be coordinated with the NMFS regional office, it is baffling that the regional office should be as deferential to the council’s desire for secrecy as it has been in this instance,” the appeal states.
As of mid-April, no response to the appeal had been received.
— Patricia Tummons
Volume 19, Number 11 May 2009
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