June 30, 2015

A modest proposal

By A modest proposal

What if we, the people, were to ask federal administrative agencies to respond in a timely manner to requests made under the Freedom of Information Act (FOIA)?  The current denizens of the federal government tell us they will respond only if and when sued.  Otherwise, we, the people, can pound salt.

That’s what happened in our challenge to the National Forest Service’s decision to padlock Plumas National Forest, Granat v. USDA.  Our clients asked for background information regarding the Forest Service’s action closing thousands of roads and trails to motorized travel, making Plumas National Forest accessible only to the most able-bodied among us.  The lawsuit addresses a number of important legal violations by the government, including the Forest Service’s failure to respond to FOIA requests.

As soon as we filed the Complaint, the Forest Service provided the information that it had withheld for almost five years.  At the same time, the Forest Service filed a Motion to Dismiss the FOIA claims, on the ground that, because the information was provided after we sued, the FOIA claims were “moot,” and the court could not provide any relief.

Not so fast.  We filed an opposition to the motion, arguing that Forest Service employees must respond to FOIA requests in a timely manner and not wait until they are sued to comply with the law.  What’s the point of having a law that guarantees citizens the right to information regarding how their government operates if government employees can violate it with impunity, as long as they comply after being sued?  The most charitable view is that the government is encouraging litigation. A less charitable view is that the arrogance of federal employees is eviscerating the FOIA.

Our modest proposal is this.  The federal government should comply with the FOIA in a timely manner, before it is sued. The current Administration, which promised to be the most transparent, has turned out to be among the least transparent, thereby turning the FOIA on its head.

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Granat v. U.S. Department of Agriculture

Using the pretext of a transportation plan update, the U.S. Forest Service shut down thousands of previously accessible roads and trails—nearly 700 miles’ worth—within the Plumas National Forest. By forbidding any motor vehicle access, the policy prevents Amy Granat, who cannot walk unaided, from using a motorized vehicle to access vast areas of the forest. Granat and other recreational users of the forest challenged the Service’s cavalier decision to withhold national forest land from members of the public without justification. The Service failed to comply with federal environmental laws that require a searching investigation of the impacts of barring access. The Ninth Circuit Court of Appeals upheld a lower court ruling which affirmed the Forest Service’s travel management rule.

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