Freedom of Information Act a Corps priority

Published April 13, 2010

In 1966, the spirit of Madison’s words were given legal backing when President Lyndon Johnson signed the Freedom of Information Act (FOIA) into law. The FOIA established the premise that any person has a right of access to federal agency records, and that federal agency records must be made available to the public unless they are exempt from public release.

In the nearly half century since Johnson’s signature, administrations have sought to both limit and expand the executive branch’s, and its agencies, compliance with the FOIA. On Jan. 1, 2009, President Barack Obama issued a memo committing his administration to ensuring a new era of government transparency and cooperation with the public. The memo asserts that federal agencies will be held accountable in their efforts to comply with the new initiatives.

Four days after Obama sent out the directive, U.S. Army Corps of Engineers Commander Lt. Gen. Robert Van Antwerp directed the agency to implement the president’s changes to the FOIA.

"The administration is holding agencies accountable for improving their FOIA programs, while at the same time agencies are being asked to more thoroughly review requests and to communicate more promptly with the public, to provide additional reports, and to proactively post information to their Web sites," Van Antwerp’s memo stated.

Louisville District Commander Col. Keith Landry is ensuring the district complies with the chain of command.

"It's all about trust and respect," Landry said. "Responding to FOIA requests in a timely manner builds both. We hired an outstanding paralegal to implement the new program and eliminate our backlog of 82 FOIA requests. As a result of his superb efforts and those of the district's employees, we will do so this year."

District Paralegal and FOIA Officer Louis DiNatale is overseeing the district’s FOIA posture. Since he’s been here, he and his supporting staff have reduced the backlog of FOIA requests by 50 percent, and he’s assured Landry that the backlog will be reduced to zero by late spring.

DiNatale spent 23 years in the Army working with the Judge Advocate General Corps, and he spent much of that time resolving FOIA issues. He said that prior to 2007, the Army tended to look for ways to deny FOIA requests, instead of looking for ways to release the information.

"The mindset was that we were the guardians of documents," he said. "A lot of stuff we classified enabled us to withhold it from other agencies, or we’d classify it to increase its importance. That’s the wrong way to classify something. We over-classified. Instead of classifying by specific paragraph or lines, we classified entire documents. We could’ve easily omitted or redacted classified information."

To submit a FOIA request, individuals must 1) cite the request for information as a FOIA request under 5 US Code 522; 2) cite the specific documents or a description thereof; and 3) state whether they are willing to pay fees, or if not, request a fee waiver be granted. If the requester doesn’t meet these criteria, DiNatale said the district will contact the person and see if the request can be refined or clarified.

When deciding whether to grant a fee waiver, DiNatale said FOIA request reviewers analyze the requester’s intended use of the information. If the information will provide a significant and better public understanding of the Corps’ mission and the information is not in the commercial interest of the requester, then a fee waiver is usually granted.

FOIA exemptions, DiNatale explained, protect information belonging to the Corps, its business partners, key stakeholders or employees. Such information, if released, would be harmful or compromise the security interests of the nation. Still, the goal is to release as much information as allowed. DiNatale recently reviewed a 5,000-page document. "It was about 18 inches thick, and when I was done, I found a total of four pages that weren’t releasable," he said.

The Corps can’t delay the release of information, either. By statute, the agency is required to respond with the requested documents within 20 days of receipt of the request. DiNatale said the Corps tries to send out a letter acknowledging receipt of the request the same day it’s received in the district. If the release of all or part of the information can’t be made fully within 20 days, then the requester will be informed about the delay.

If the Corps doesn’t meet the communication deadlines set out in the statute, then the requester has the ability to sue the Corps for the documents, minus attorney fees. The Honest Leadership and Open Government Act passed in 2007 makes it easier for FOIA requesters to recoup costs and fees. Corps offices are responsible for payment of costs and fees — assessed by a court — from the office’s appropriated funds.

"Obama ran on a campaign of change and transparency," DiNatale said. "We’re obligated to the public to meet those promises. They, the tax payers, are paying our salaries."