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Judge rules for Wilderness Society in FOI request

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    News Media Update         WASHINGTON, D.C.         Freedom of Information    

Judge rules for Wilderness Society in FOI request

  • Records of an agreement to forgo study of lands for wilderness designation are not privileged, a federal district judge has ruled.

Oct. 25, 2004 — Records about a deal the Department of the Interior cut with the state of Utah allowing development on millions of acres of federal lands with wilderness potential cannot be withheld from Freedom of Information Act requesters unless the government can show that exemptions to the FOI Act apply, Judge Reggie Walton of the U.S. District Court in Washington, D.C., ruled Oct. 15.

Interior Secretary Gale Norton and then-Gov. Mike Leavitt of Utah agreed in April 2003 to allow development on all but 150 million acres of federal lands and to end wilderness consideration for millions of acres of federal lands that have been protected while their wilderness qualities are evaluated. Leavitt has since become the Environmental Protection Agency Administrator. Ten environmental groups sued for reinstatement of wilderness study procedures in a case before the U.S. Court of Appeals in Denver (10th Cir.).

When the Wilderness Society filed a FOI Act request for records showing how and why the agreement was reached, the Interior Department made some records available but withheld hundreds of pages, citing Exemption 5 to the FOI Act which allows for withholding “privileged” information. The Wilderness Society sued.

Judge Walton refused to accept the department’s claims that the information fell into the category of “deliberative process” privilege — which protects the candid exchange of opinions in decisionmaking — and of “attorney client” and “attorney work product” privileges.

The government’s claims that records about “wilderness issues” are exempt were vague and they did not point to any specific decisionmaking that would merit the privilege, Judge Walton wrote.

He rejected the government’s refusal to release any “draft” records, saying that only records of policies that had not actually been adopted could be withheld. The judge also told the agency it must segregate and disclose strictly factual information that tells nothing about how a decision was reached — or tell why it could not reach one.

The judge also rejected agency claims that other withheld records are protected by the attorney-client privilege or by a privilege for “attorney work product,” especially where the agency had not even contemplated litigation on issues.

Finally, he ordered the department to search its Solicitor’s Office for records. He said its failure to search for records concerning a lawsuit and a settlement within the agency’s office that deals with legal issues was unreasonable.

The federal government has expanded its use of the privileged information exemption to the FOI Act under the FOI guidance issued by Attorney General John Ashcroft in October 2001, which encourages agencies to use exemptions to deny information. Former Attorney General Janet Reno’s guidance had sharply curtailed agencies’ use of the privileged information exemption where they could not point to actual harm likely to occur from disclosure.

(Wilderness Society v. Department of Interior; Attorney: Leslie Jones, Washington, D.C.) RD

© 2004 The Reporters Committee for Freedom of the Press

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