“It looks to me as though they've withheld pretty much as many documents as they've provided,” said James McCubbin, deputy county attorney. “It's very clear that they haven't provided us with what we asked for.”
What Missoula County asked for, in an earlier Freedom of Information Act request, were documents leading up to a road easement deal struck between the U.S. Forest Service and Plum Creek Timber Co.
But in recent years, as real estate sales have become increasingly important to Plum Creek's profit margin, the company has argued the road agreements allow all sorts of access, including residential driveways.
For two years, Agriculture Undersecretary Mark Rey negotiated with the company, and ultimately produced a “clarification” to the easements that did, in fact, allow Plum Creek unfettered access for all purposes.
Many cried foul, including state and county officials, arguing the proposed easement amendment paved the way for development of countless far-flung neighborhoods. They worried local taxpayers would foot the bill to provide urban services - including firefighting services - to these new forested neighborhoods.
They also argued that Rey and Plum Creek had broken federal law by brokering the easement deal without public comment. Rey, however, has stood fast by the position that public comment was not required, and both sides have suggested the dispute may be decided in court.
Before turning to litigation, however, Missoula County filed a FOIA request for documents that detailed the two years of negotiation. Officials wanted to understand how the Forest Service had gone from reading the easements narrowly - for timber only - to reading them broadly - for all purposes.
“We need to determine what public process may be required,” McCubbin said, “and part of what we need in order to do that is an understanding of how the Forest Service reached its final conclusions.”
What he hoped for were minutes from meetings and the back-and-forth of memos and e-mails, as well as the correspondence that inevitably accompanied the 50 or so drafts that emerged over two years of talks.
He wanted to know who wrote which drafts at whose request, and who reviewed them and who edited them and who approved or denied them and why.
What he received, he said, was none of the above.
“What we do have are documents that make it clear that there's been a very long series of discussions between Mr. Rey's office and Plum Creek,” he said. “What we don't have are any details about those discussions.”
He suspects, from documents provided, that “they made the agreement, verbally, well over a year ago,” but there's no way to be certain, given the paperwork that's been withheld.
In the appeal filed Wednesday, McCubbin argues the federal government failed to fulfill the FOIA request by not producing a complete record, by not looking hard enough for certain documents, and by withholding paperwork that should not be withheld.
An example: In some drafts of the easement amendment, revisions made by different people were differentiated by color-coding. But the copies received at the county are black-and-white.
“They inundated us with 51 drafts,” he said, “but gave us no indication of the negotiations that produced those drafts.”
The Forest Service appears to have changed - or at the least refined - its legal opinion of the easements as negotiations progressed, McCubbin said, but omitted are 72 pages of legal research, at least one legal recommendation and 27 pages of “legal considerations.”
The documents that were produced, he said, often do not contain any indication as to who wrote them, who requested them, who reviewed them or even the date on which they were written.
“Additional documentation must exist reflecting this information,” he wrote in the appeal. The appeal also requests “that Mr. Rey refrain from making any final determination with respect to the ‘Easement Amendment' until all issues relating to Missoula County's FOIA request have been resolved. This will allow the public an opportunity to review the appropriately available public records and submit comment to Mr. Rey.”
Rey, for his part, said on Wednesday that he's in no hurry to sign off on the amendment, adding that “we are still providing documents, and there will be more information forthcoming.”
Legal deeds, for instance, are being scanned and transferred to computer disc, he said, and should arrive at McCubbin's office in coming weeks.
But the county's FOIA appeal, for Rey, signals something more than an attempt to gather information. It suggests, he said, that county officials are determined to take the issue to court.
“The takeaway message is Missoula County is moving to litigate, and not collaborate,” Rey said, adding that such appeals are part of a “typical pattern.” Those upset with government decisions file FOIA requests, he said, then appeal the process and demand documentation they know cannot be provided. (In this case, documentation Rey said is protected by attorney-client privilege.)
Then, the appellant wraps the FOIA complaint into a broader lawsuit, hoping to convince a judge, “if nothing else, that the government should have provided more information than it did.”
Rey said he will provide all that the law requires, as well as all that's necessary for “transparency,” but not anything protected by privilege.
“We're still providing information,” he said. “That's an ongoing process. But I think it's clear where the county is taking this.”
McCubbin agreed that litigation in federal district court is one option, depending upon the response he receives to his appeal, but said “Missoula County would much rather avoid litigation if at all possible.”
“We can't make a decision about our next step, though, until we see their response,” he said. “Hopefully, they'll amend their ways and provide us the appropriate documents.”
|
 |
 |
Add your comment now! Write your comment in the form below.
(Email address is for verification only. If you'd like to email a story, look for the link above)