Our FOIA Request

2021 Filly Starlet

What is a FOIA request?

From FOIA.gov:

What is FOIA?

Since 1967, the Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement.

The FOIA also requires agencies to proactively post online certain categories of information, including frequently requested records. As Congress, the President, and the Supreme Court have all recognized, the FOIA is a vital part of our democracy.

As many of you know, we submitted a FOIA request to Theodore Roosevelt National Park.  I will share some highlights from our lawyers last letter to the FOIA Appeals Office on how our request is being handled:

“On November 30, 2021, Advocates submitted a FOIA request to the Department of
Interior seeking various records related to the Theodore Roosevelt National Park’s (“TRNP’s”) management of wild horses within the boundaries of the Park. Specifically, the Request sought:

(1) Any and all records formally designating wild horses residing on the TRNP as “livestock” or “livestock display,” as required by [the National Park Service’s (“NPS’s”)] implementing regulations. See 36 C.F.R. § 2.60(a)(3) (“The running-at-large, herding, driving across, allowing on, pasturing or grazing of livestock of any kind in a park area or the use of a park area for agricultural purposes is prohibited, except . . . “[a]s designated, when conducted as a necessary and integral part of a recreational activity or required in order to maintain a historic scene.” (emphasis added));

(2) Any and all records, including surveys, regarding how NPS determines that an excess number of horses exist on the TRNP such that roundups and removals of those horses are necessary;

Please note: There were 8 points of items we asked for.  We are only sharing the first two as examples of our requests as sharing all 8 would make this already long post even more lengthy.

On January 3, 2022 (i.e., twenty working days after the request was submitted), DOI had yet to acknowledge Advocates’ request. Consequently, Advocates wrote to DOI’s FOIA office to request acknowledgement and a date-certain by which responsive disclosures would begin. That same day, Advocates received a letter from DOI seeking “clarification” of the request. There, DOI claimed that it was unable to process Advocates’ request because it could not “determine the exact time period” for the requested records. Thus, DOI asked that Advocates “specify a time frame or duration of time” in which DOI should search for responsive records. DOI’s clarification request did not identify any other deficiencies in the request.

Advocates provided the requested clarifications by letter dated January 13, 2022. In addition to specifying date ranges for each category of the request, Advocates also identified specific examples of documents within the ambit of certain request categories.

On January 31, 2022, DOI made its first and only disclosure, which consisted of “103 pages of responsive material” in a single consolidated file. Although DOI claimed that Advocates’ request was “granted in full,” most of the disclosed records were already publicly available and do not respond to several categories in the request. Notably, DOI did not disclose any of the specific documents identified in Advocates’ January 13 clarification letter, nor did DOI provide any explanation as to why those documents were not produced.

On February 11, 2022, DOI issued a two-page “clarification” to its final response. That clarification, however, concerned only two of the categories in Advocates’ Request: category two (i.e., records related to removing wild horses from the TRNP) and category seven (i.e., records related to the historical importance of the TRNP herds, including specific documents identified in Advocates’ January 13 letter to DOI).

Because Advocates has a strong basis to believe that responsive, non-exempt information has been improperly withheld by DOI, it appealed DOI’s final response on April 5, 2022. In relevant part, Advocates’ appeal asserts that DOI’s withholding of information responsive to category seven as “personal notes” not subject to FOIA is baseless, and that the agency improperly construed other portions of Advocates’ request and/or failed to conduct an adequate search for responsive information.

However, by May 18, 2022—i.e., 30 working days after filing its FOIA appeal—DOI had not even acknowledge Advocates’ appeal, let alone issued a final determination. In an effort to resolve DOI’s continued withholding of responsive, non-exempt records, Advocates wrote to your office that day seeking acknowledgment of their appeal and a date certain by which a decision would be issued. That letter, too, went unacknowledged and unanswered. To date, i.e., more than 56 working days after their appeal was filed, Advocates still has not received any acknowledgment of its appeal.

FOIA provides that each agency “shall . . . make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal.” 5 U.S.C. § 552(a)(6)(A)(ii) (emphases added). Likewise, DOI’s own regulations provide that “[t]he basic time limit for responding to an appeal is 20 workdays after receipt,” and if the agency cannot meet that deadline, it will notify the requester of its right to seek judicial review. 43 C.F.R. § 2.62.

As explained, DOI’s twenty-working-day response window has long since passed without even so much as an acknowledgment by the agency. DOI (and NPS’s) delay here is particularly troubling because the requested records relate to an ongoing management planning process for wild horses. See NPS, Livestock Management Plan Newsletter at 6 (March 16, 2022), https://bit.ly/3bFnQzO. Indeed, the public scoping period for that plan is scheduled “for summer 2022.” See Frequently Asked Questions About Horses, NAT’L PARK SERV., https://bit.ly/3bCZt5q (last visited June 28, 2022). Accordingly, the TRNP’s initially incomplete disclosure and DOI’s continued withholding of documents that would assist Advocates and the public in preparing their comments is concerning.

Although some may find the withholding here suspicious under the circumstances, Advocates continues to believe that a non-adversarial resolution is possible. Still, the records requested here remain extremely important to Advocates, especially considering their relevance to TRNP’s ongoing planning process; if necessary, Advocates remains willing to avail itself of all available options for compelling DOI’s compliance with federal law—up to and including litigation. Advocates would prefer, however, to avoid time-consuming and expensive litigation over DOI’s repeated failures to heed statutory deadlines. Thus, in the interest of resolving this matter without judicial intervention, Advocates formally requests that DOI act on its appeal promptly and, in the meantime, provide them with a date certain by which they can expect that decision.

We appreciate your immediate attention this matter. Should you have any questions this appeal, please do not hesitate to contact our firm.

As you can see, our lawyers at Eubanks and Associates are very methodical and clearly understand our rights under the Freedom of Information Act.  Quite simply: we have a right to the information we are asking for.  We believe the information we are requesting will be important to have when the park comes back to the management planning process this summer. 

As our lawyers stated, we do have the option to litigate over this FOIA request if Theodore Roosevelt National Park continues to ignore our correspondence on this matter. 

You can imagine that litigation will be costly.  The cost of having the wild horse herd of approximately 190 horses reduced to a total herd size of 30-60 horses or 15-30 gelded behind a fence, will come at an enormous expense that will be paid for by future generations that do not get to see these amazing wild horses the same way we do today. 

We hope that you will continue to support our advocacy work.  There are several ways that you can help listed on our website https://chwha.org/support-chwha/

Thank you for your support!

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