The Western Pacific Fishery Management Council\u2019s 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 \u201cmake discretionary disclosures of information.\u201d<\/p>\n
\u201cAs President Obama instructed in his January 21 FOIA Memorandum,\u201d Holder wrote, \u201c \u2018The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.\u2019\u201d<\/p>\n
Even if an agency can demonstrate, \u201cas a technical matter, that the records fall within the scope of a FOIA exemption,\u201d he wrote, that is in itself not sufficient reason for withholding them.<\/p>\n
\u201cAt the same time, the disclosure obligation under the FOIA is not absolute,\u201d he wrote. \u201cThe 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, \u2018The 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.\u2019\u201d<\/p>\n
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 \u201csound legal basis or [disclosures] present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.\u201d<\/p>\n
Now, wrote Holder, \u201cthe 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.\u201d<\/p>\n
Holder admonished agencies against establishing \u201cunnecessary bureaucratic hurdles,\u201d saying they have no place in the \u201cnew era of open government that the president has proclaimed.\u201d<\/p>\n
\u201cOpen government requires agencies to work proactively and respond to requests promptly,\u201d he continued. Obama\u2019s memorandum instructs agencies \u201cto use modern technology to inform citizens what is known and done by their government,\u201d he wrote. \u201cAccordingly, 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.\u201d<\/p>\n
Contrarian Moves<\/b><\/i><\/p>\n
Wespac, which has never been aggressive in defending the public\u2019s 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\u2019s minds these days.<\/p>\n
\tFor the last two years, council actions have been the subject of numerous FOIA requests, including several by this publication.<\/p>\n
\tLast 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 \u2013 the LOST FISH Coalition, the Conservation Council for Hawai`i, and KAHEA: The Hawaiian Environmental Alliance \u2013 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.<\/p>\n
\tThe initial FOIA request, seeking information on the council\u2019s 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 \u201csome information,\u201d 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.<\/p>\n
\tA 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.<\/p>\n
\tAccording to the complaint, \u201cWespac 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.\u201d<\/p>\n
\tNo date for a hearing had been set as of mid-April.<\/p>\n
And an Appeal<\/b><\/i><\/p>\n
Over the last 18 months, Environment Hawai`i<\/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.<\/p>\n
\tIn one instance, the information sought \u2013 documents relating to contracts between the council and the various parties who organized the series of puwalu on behalf of the council \u2013 was finally provided, some 16 months after the request was made.<\/p>\n
\tIn 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, \u201cthe council indicated that no responsive records were located.\u201d (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.)<\/p>\n
\tThe 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.<\/p>\n
\tIf 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 \u2013 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.<\/p>\n
\tEnvironment Hawai`i<\/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, \u201cCouncil records must be handled in accordance with NOAA records management office procedures. All records and documents created or received by council employees \u2026 belong to the Federal Government.\u201d<\/p>\n
\t\u201cWhile 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\u2019s desire for secrecy as it has been in this instance,\u201d the appeal states.<\/p>\n
\tAs of mid-April, no response to the appeal had been received.<\/p>\n
— Patricia Tummons<\/p>\n
Volume 19, Number 11 May 2009<\/p>\n","protected":false},"excerpt":{"rendered":"
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 … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8,17,172],"tags":[],"class_list":["post-1200","post","type-post","status-publish","format-standard","hentry","category-fisheries","category-marine","category-may-2009"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1200","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1200"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1200\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1200"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1200"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1200"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}