Wednesday, Jul. 01, 1998

Plaintiff's reply memorandum

VIII. DEFENDANTS VIOLATED THE FREEDOM OF INFORMATION ACT.

FOIA in general and Department of Defense regulations in specific impose an obligation to respond to information requests in good faith. Defendants responded to plaintiffs' requests with technicalities, questionable defenses, evasive responses, and an impenetrable wall of inaction. As early as December 17, 1997, the Department of the Army reached a decision on plaintiffs' appeal of the first denial, but the Deputy Chief Counsel advised that the agency not comply with the statute so it could delay a response during the litigation. No decision was entered on plaintiffs' appeal, and to date there is no indication it will ever be decided.

Footnotes

For only $30 more, defendants could have purchased a model that would have recorded RH from 0 to 95% with an accuracy of 4%. See SER 152 (product specifications).

Defendants themselves recommended the FOIA process to plaintiffs through their attorneys. See e.g., SER 82, DOI 07820; SER 83 (Rumsey 3/27/00).

Parks v. Department of Educ., 2000 WL 62291 (D. Or. 2000) did not arise in the context of litigation where a party resorted to FOIA to obtain relevant documents and did not involve evidence of agency bad faith; the agency there also submitted the kind of detailed supporting affidavit that is missing here.

SER 6, COE 6573 (Kirts memo); ER 240 (Kirts letter).

See ER 219, 225, 226; SER 19a, COE F-321 (Schneider 7/20/98). Defendants never responded to the substance of plaintiffs' protest.

"While this is an unusual case, the District is in the process of gathering the documents, and it would be best if they were allowed to continue this for the litigation before answering the FOIA request. Providing the documents under FOIA now would be disruptive to the administrative process and misleading." SER 5, COE 6523a.