BLM uses law to stall the public
Government in sunshine – Part Five
by Cat Urbigkit

Editor’s Note: The Examiner has noted an increasing tendency toward secrecy on behalf of certain agencies, from local boards to state agencies and federal bureaus. This unsettling trend is contrary to state and federal laws calling for the public business to be conducted in full public view. This multi-part examines state and federal laws providing for “government in sunshine” as well as outlines some of the obstacles currently encountered in the quest for public information.

The federal Freedom of Information Act ensures public access to records created or held by the United States government. The law is powerful and broad, and carries a presumption of disclosure.

The law establishes that the burden is on the government – not the public – to substantiate why information may not be released.

FOIA applies to all records of all federal executive branch agencies, unless the records are covered under a list of nine specific exemptions. If an exemption can apply, the agency is permitted, but not required, to withhold the information.

To establish a legal right to agency records, a FOIA request must be submitted to the agency’s designated FOIA officer in writing. That begins the process in which the agency must respond to your request within 20 working days and either release the documents or show that they are covered under an exemption. Agencies may charge reasonable fees for furnishing documents.

If the agency fails to comply within the timeline, the requestor can then seek relief in federal district court. If the agency denies the request for information, the requester must first file an appeal within the agency before filing a complaint in court.

The nine exemptions from disclosure are for national security, internal agency rules, trade secrets, law enforcement records, oil and gas well data, bank reports, internal agency memoranda which would not be available by law to a party other than an agency in litigation with the agency, information specifically exempted from disclosure by other statute, and “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

The law requires that “any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.”

The Reporters Committee for Freedom of the Press reports that the privacy exemption is a “vastly overused tool to block release of government information.” Although some federal agencies use this exemption routinely to block disclosure of information that might identify individuals, the exemption should apply only when individuals’ interests in privacy outweigh the public’s interest in disclosure, according to RCFP. To invoke the exemption, agencies must first find that the information is “similar” to personnel and medical files, although one local natural resource agency office has ignored this requirement.

With the amount of activity occurring on federal lands in Sublette County, the Pinedale office of the Bureau of Land Management routinely seeks public comment on these proposed actions. For instance, in the process of preparing an environmental impact statement for a drilling program, a process that can take years to complete, the public is often asked to weigh in with concerns and issues. Since these public comment periods are established in compliance with a process outlined in the National Environmental Policy Act, the comment period closes on a certain date, usually about 45 days after the period officially opens.

As a routine matter, when the comment period closes, the Examiner sets up an appointment to review public comments in the reading room at the BLM office. Articles are then printed about what the public had to say. The BLM has always complied with the Examiner’s request, until recently.

This August, the BLM issued a request for public comment on the Stewart Point drilling project which would allow Questar Exploration and Production Company to drill up to 30 wells on five well pads just a few miles outside of Pinedale in an area determined to be a “Sensitive Viewshed Management Area,” as well as designated as the “Mesa Breaks.”

The BLM noted at the time that: “It’s important that everyone who has an interest in this project provide their input to help us make sound decisions.”

So after the closure of the public comment period on Aug. 30, the Examiner called to make an appointment to review the public comments, only to be told that we could not review that information. The ensuing argument resulted in the BLM agreeing to reconsider our request. The BLM then decided that we could review the comments, but ALL identifying information would be deleted from the comment letters first – whether the comment letter came from an individual, organization or agency, a move we viewed as a blatant violation of the intent of the law requiring disclosure. Since, as RCFP has noted, “Only individuals, not businesses, associations or corporations, can have their privacy intruded upon,” there is no way that organization and agency identifying information can legally be withheld in this situation, the Examiner argued. As for the release of identifying information about individuals, courts have ordered names and addresses released, finding that the only way the public can learn about the government action is to locate and interview individuals affected by the action.

When the BLM offered to let the Examiner review the comment letters with all the identifying information deleted, we declined, asserting that the information thus presented would be worthless. We were then told the only way we could review the information would be to file a formal FOIA request. Rather than continuing to comply with the routine action of sharing public information with the public, the federal agency had in effect decided to use the disclosure law to stall sharing public information.

The Examiner filed its FOIA request by hand-delivering it to the Pinedale BLM office. The request was specific: “a copy of all public comments, including those from individuals, organizations and agencies, made in response to the BLM’s call for public comment in regard to the Stewart Point drilling projects.” The letter requested expedited consideration, noting that the BLM had denied the Examiner access to the records it had routinely allowed it access to.

Within two days, the Examiner received an e-mail from BLM Wyoming State FOIA Officer Mark P. Archer. The letter insinuated that the Examiner’s request for all public comments on the Stewart Point project was overly broad.

Archer wrote: “WOW! With no time span being mentioned and the number of public comments the BLM has accepted over the past several years, we are talking in terms of 100s of thousands of comments. The Rawlins Resource Management Plan alone gathered over 60,000 comments. Would you be satisfied with just the public comments for the Stewart Point drilling project instead of ‘all public comments?’ Please let me know at your earliest convenience.

The Examiner called Archer to once again explain that what we wanted was what we had asked for in the first place, as the letter had clearly stated: “a copy of all public comments, including those from individuals, organizations and agencies, made in response to the BLM’s call for public comment in regard to the Stewart Point drilling projects.”

The Examiner also received a postcard from the BLM that same day, acknowledging receipt of the request and noting “we estimate that you may expect a letter from the responsible field office in the next several days.” It’s now nearly a month later and no letter has been received. The public continues to wait, while the BLM continues to stall.