Thursday, Apr. 16, 1998

Memorandum in support of motion to vacate second administrative action

VIII. DEFENDANTS VIOLATED FOIA TO WITHHOLD INFORMATION.

After the remand, plaintiffs made repeated FOIA requests so they could participate fully in the administrative reconsideration. Defendants repeatedly frustrated those requests.

FOIA is "intended to establish a general philosophy of full agency disclosure and to close the loopholes which allow agencies to deny legitimate information to the public." GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 385, 110 S. Ct. 1194, 63 L.Ed.2d 467 (1980); see also Dept. of Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 48 L.Ed.2d 11 (1976) (objective of Congress was to pierce veil of administrative secrecy and open agency action to public scrutiny).

Plaintiffs appealed the partial denials of the second and third FOIA requests on September 1, 1998. ER 223, 228-32; COE F-083, F-088-92. Those appeals also remain undecided. The partial response did not include many nonprivileged items now found in defendants' administrative record. See, e.g., ER 20; COE 5679 (meeting with Coalition to discuss site burial); ER 294; COE S-490 (letter to Washington SHPO); ER 399 (Leier 10/17/97) (treatment of ARPA permit applications). Over four months elapsed before defendants produced documents in response to plaintiffs' fourth FOIA request (ER 217; COE F-002), well beyond the statutory period. See 5 U.S.C. 552(3), 552(6). Plaintiffs' fifth FOIA request, ER 221; COE F-074, was denied because of a dispute over expenses relating to the second and third FOIA requests which were then on appeal. ER 219-20; COE F-070, F-073. Even though the disputed sum was paid on December 14, 2000, defendants delayed production until March 12, 2001. ER 424; DOA 3/12/01. Plaintiffs' sixth FOIA request has yet to be answered completely. See ER 412, 415; Schneider 10/24/00, 12/12/00; Er 411, 414, 419; DOA 11/30/00, 12/22/00, 1/9/01. This repeated misuse of FOIA reinforced plaintiffs' exclusion from the administrative process. Defendants admitted they intended to withhold documents from plaintiffs: one internal memo claimed "[p]roviding the documents under FOIA now would be disruptive to the administrative process and misleading." ER 242; COE F-466.