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Freedom-of-information laws: keeping government open and accountable

Sunshine Week is held in the hope that the public continues to believe in — and thereby demand — accountability through public access to government records.

The general impetus behind the adoptions of freedom-of-information (FOI) laws was the idea that the public itself needed to be an active part of the governmental oversight process.

Saturday is the final day of Sunshine Week, an annual event co-sponsored by the American Society of News Editors that highlights open access to government records. As with any human enterprise, the animating force behind government transparency is a belief in the idea itself. Each year, Sunshine Week is held in the hope that the public continues to believe in — and thereby demand — accountability through public access to government records.

Matt Ehling

The presumption of public access to government data — while fundamental to good governance — has been a fairly recent legal development. Before the mid-1960s, there were few mechanisms to provide the public with access to internal government documents. In 1966, the Freedom of Information Act (the FOIA) was passed at a federal level. That law provided statutory requirements that governed access to government data, and provided the public with a much easier-to-use tool to obtain such records. 

The FOIA was mimicked by numerous state-level laws — many of which were fueled by political reactions to the scandals of the Watergate era. The general impetus behind the adoptions of such freedom-of-information (FOI) laws was the idea that the public itself needed to be an active part of the governmental oversight process. 

Public Record Media (PRM) — an organization that I started in 2009 — uses FOI laws in the service of just that purpose. PRM regularly files public-record requests with state and federal agencies, publishes the results, and pursues compliance with FOI laws through litigation and other mechanisms. The results of some of our recent record requests underscore the value of FOI tools, and highlight their ongoing importance to the public dialog.

FOI: A window into regulatory affairs

For instance, FOI laws can provide information to help clarify determinations made by regulatory entities, and can help to better illustrate their internal decision-making processes. 

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Since November of 2013, PRM has been collecting regulatory-agency correspondence related to mining operations in northern Minnesota, including the proposed PolyMet “NorthMet” copper-sulfide mine.

The NorthMet project has been the subject of an environmental review process conducted by three “co-lead” agencies — the Minnesota Department of Natural Resources, the U.S. Army Corps of Engineers, and the U.S. Forest Service. Other agencies — such as the Environmental Protection Agency (EPA) — have been conducting related reviews of the project. 

The co-lead agencies are now in the process of reviewing public comments regarding their Supplemental Draft Environmental Impact Statement (SDEIS). Approval of the SDEIS is required for the NorthMet project to move on to the next steps in the review and permitting process.

Last week, the EPA filed its comments on the SDEIS. For background, the agency had been critical of NorthMet in its review of the project’s 2009 draft environmental impact statement, and it gave the project a failing grade at that time. The agency’s more recent comments register its perspective on developments that have occurred during the past four years.

EPA’s Alan Walts begins the agency’s comments by noting that the agency appreciates “the extensive improvements” as well as “the clarity and completeness of the environmental review” reflected in the SDEIS. Walts’ letter then goes on to note that, “there remain a number of areas where potential environmental impacts should be more effectively addressed” through further analysis and mitigation. Accordingly, EPA’s comments provide the project with an “EC-2″ rating for “insufficient information.” 

EPA documents obtained by PRM shed additional light on the internal deliberations behind the agency’s findings in this matter.

Disagreements, concerns over water quality

In the EPA’s SDEIS comments, the agency maintains that “there is insufficient detail to explain why ‘outlier’ data were excluded from consideration in the GoldSim (groundwater) model.”  Co-lead agencies required such groundwater modeling to generate data on potential environmental impacts. The EPA further recommends that the final EIS “should provide a specific justification to support excluding any such data.”

Correspondence obtained by PRM shows that disagreements over groundwater modeling reached back to at least early 2012. A January 2012 email from EPA’s Mike Sedlaceck noted that “co-lead agencies decided not to perform a sensitivity analysis of the GoldSim groundwater modeling efforts.”  Related correspondence stated that EPA was “dissatisfied that we discovered this information blindly, and were not made aware” that the sensitivity analysis would not be undertaken. “EPA staff,” Sedlaceck wrote,  “disagree with the conclusion [PDF] that the sensitivity analysis should not be performed.”  Sedlaceck further characterized the disagreement as a “breakdown in the collaboration process” whereby cooperating agencies were not “being kept in the loop.” 

Water-quality issues surface elsewhere in the EPA’s SDIES comments. Agency comments note that “the proposed project provides significant environmental improvements” over the 2009 proposal, largely through seepage containment in the tailings basin meant to trap NorthMet-related water.

Correspondence obtained by PRM shows agency reaction to a 2012-era PolyMet press release which indicated that the company had successfully treated over 1 million gallons of water through a reverse-osmosis-treatment pilot. In the correspondence, EPA staff comment on PolyMet’s efforts to address water-quality issues, noting that the company had contracted with an engineering firm that “actually has remediation experience.”

Other agency correspondence characterizes the existence of the water-treatment pilot as a sign that PolyMet is “serious about moving forward” but likewise notes that “groundwater will be the bigger problem” [PDF] for the company since “we just won’t see the consequences for years to come.” 

FOI: Examining presidential hopefuls

FOI laws can serve the important role of illuminating the records of politicians who aspire to hold higher office — including the nation’s highest office. As with the Gov. Chris Christie bridge-closing scandal (broken, in part, through public records requests), it is imperative that the public closely examines presidential aspirants long before they lay claim to the White House. In aid of this, PRM sought records related to Wisconsin Gov. Scott Walker’s handling of demonstrations at the Wisconsin State Capitol complex.

While many recall the mass rallies of 2011 — in which pro-union protesters occupied the Capitol complex for days at a time — few outside of Wisconsin may be familiar with the Walker administration’s response to a smaller (and much less boisterous) set of demonstrations that occurred in 2013. 

After the mass labor rallies of 2011, a small group of protesters continued to congregate in the Capitol rotunda to sing union ballads and display placards over the lunch hour. This “Solidarity Sing-along” event occurred on virtually every day of the work week, and continued for a year without significant incident.

Records obtained by PRM show that the administrative rules governing the Wisconsin Capitol grounds have long required permits for rallies and demonstrations. However, some of those rules were waived by the Wisconsin Department of Administration (DOA) after the mass protests of 2011. Records indicate that DOA’s waiver policy was instituted in response to a judge’s order that called for an end to certain limits on building access that had been imposed after the 2011 rallies. 

At the time, Assistant Attorney Maria Lazar wrote that the contours of DOA’s policy were such that, “visitors may rally or demonstrate in the Rotunda without a permit.”  She further wrote that DOA could require each individual entering the building to obtain a permit, but noted that the department had “decided not to do so” for practical reasons. 

DOA again modified its permitting requirements at the end of 2011, to require permits for groups larger than 20. Despite this requirement, use of the rotunda for unpermitted sing-alongs continued for almost a year, until the summer of 2012, when DOA arrested a handful of demonstrators for gathering without a permit. 

Capitol arrests ramp up in 2013

Arrest activity subsided for many months, but began again in earnest during the summer of 2013, ensnaring well over 100 protesters and onlookers, much to the surprise of many — including Wisconsin state representatives.

A July 2013 letter to DOA Secretary Mike Huebsch from Wisconsin State Rep. Chris Taylor states that, “what was a dwindling noon-time sing-along that didn’t disrupt tourism, nor the business of the state, has grabbed headlines because of the law enforcement tactics being used.”

Documentation is sparse about why a decision was made to re-institute the permit requirement after several months of non-enforcement. In an August 2013 letter, Secretary Heubsch noted that “the Administrative Code is clear that you must acquire a permit, and a protest does not relieve that responsibility.” 

A September 2013 e-mail from Capitol Police David Chief Ervin referred to certain “Emergency Rules” that had been in force at the Capitol, and which had been implemented by DOA to respond to sing-along activities.

The Walker administration and public records 

In our FOI request, PRM had asked for correspondence between Gov. Walker and DOA Secretary Huebsch about these matters, but DOA produced no such records. This could indicate either that relevant records were withheld, or that documents did not exist to begin with. The later is a possibility, as data obtained by Wisconsin media outlets have shown a tendency by Walker to try to limit the official records of his communications.

Other PRM requests for Walker correspondence have produced similar, “nonresponsive” results. For instance, we filed a FOI request [PDF] in 2011 seeking correspondence between Walker and the head of the Wisconsin National Guard about calling up guard members during the state Capitol protests. Walker had spoken publicly about this possibility in February of 2011, and had stated at the time that the Guard was “prepared for whatever the Governor, their commander in chief, might call for.” PRM, however, was told that no responsive correspondence existed about the matter. At the same time, a parallel PRM request for legal memos regarding the use of the Wisconsin National Guard appeared to indicate that such memos existed, but access to the memos was denied under the attorney-client privilege.

FOI: Examining political rhetoric vs. agency action

FOI laws can also provide critical insights into the operation of government agencies, and shed light on areas where political rhetoric meets administrative reality. Often, watching how government agencies respond to record requests is just as informative as the data gleaned from the records themselves. 

For nearly two years, PRM has sought legal opinions [PDF] from the Obama administration relating to the military detention provisions of the 2012 National Defense Authorization Act (NDAA). Those provisions have stirred controversy due to concerns that they could be used to indefinitely detain American citizens in a broad range of circumstance — including inside the United States itself.

Starting in 2012, PRM submitted two separate requests for these records to the Department of Justice (DOJ), and was denied records each time. Most recently, DOJ upheld its earlier refusal to produce responsive records after we filed an administrative appeal.

Legal opinions — particularly final legal opinions — are valuable government records, because they provide the legal basis for government actions. The importance of public access to final opinions is reflected in the text of the Freedom of Information Act itself, which states that:

Each agency shall make available for public inspection and copying … final opinions, including concurring and dissenting opinions.

PRM’s most recent request sought NDAA “final opinions” that were “post-decisional in nature.”  This “post-decisional” language stems from a Supreme Court case that holds that such documents cannot be withheld from disclosure under the FOIA. In response to this request, DOJ stated that it held several such records (“post-decisional” final opinions), but refused to produce them. PRM then appealed, citing extensive case law indicating that such records should be publicly available.

DOJ re-characterizes documents

After we filed our administrative appeal, DOJ sent us a follow-up letter that changed how it described the documents [PDF] in question. In its letter, the agency characterized the withheld records as “final opinions” of the agency, but now noted that they were “pre-decisional” legal advice, and not “post-decisional” records. DOJ later upheld its withholding determination [PDF] based on this change.

This is not the first time that we’ve seen the Justice Department re-characterize its records in response to a FOIA action. For example, we saw this occur in connection with a request for drone records that we filed in 2011. In that instance, OLC first stated it held responsive records, but then reversed itself after we filed a federal lawsuit. As such, any claims that the Obama administration has made about its transparency record need to be evaluated in the context of these kinds of actions.

Public must engage with the FOI process

While PRM continues to pursue public records in the public interest, we would note that the broader public must also actively engage in the open record process if that process is to sustain itself and have political gravity. The late John Finnegan — a former Pioneer Press editor and the architect of Minnesota’s open-record law — was adamant that there should be no distinction between members of the public and press organizations of any kind when it came to accessing public data.

Each year, Sunshine Week serves as a reminder that the government is only as transparent as the public itself will allow it to be.

Matt Ehling is the president of Public Record Media, an organization that seeks out and publishes government documents for the benefit of the public.


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