St. Louis, MO: On March 23, Missouri Coalition for the Environment (MCE) brought suit against the U.S. Army Corps of Engineers (the Corps). The suit alleges violations of the Freedom of Information Act (FOIA).

In 2014, the Doe Run Company diverted a branch of the West Fork Black River around one of its mines. The mine’s operations had created a sinkhole under the river, causing the mine to flood, and Doe Run sought to avoid the flooding of the mine and the resulting contamination by changing the course of the river. The Corps originally issued an emergency permit allowing Doe Run to divert the river temporarily. There was no public notice and no opportunity for public comment before Doe Run diverted the river, and now Doe Run is seeking to make the diversion permanent. When MCE sought documents related to the company’s application to make the diversion permanent, the Corps refused and claimed they were protected under one of nine FOIA exemptions designed to protect against certain harms that might occur if the documents were disclosed, such as damage to national security interests or interference with law enforcement investigations. FOIA exemptions allow the Corp to withhold these documents despite the FOIA request.

Heather Navarro, Executive Director of MCE, said, “The right to know is a fundamental component of our democracy. FOIA is one of the most important tools citizens have to know what their government is doing and how decisions are made.”

Specifically, MCE alleges that the Corps has a policy or practice of improperly denying FOIA requests. MCE has found that multiple Corps districts in Missouri regularly refuse to disclose documents related to pending permit applications by claiming that the documents are “predecisional” and thus exempt under FOIA Exemption 5.

In 2013, MCE began looking into certain Clean Water Act permits issued by the Corps, such as the one sought by Doe Run. These permits allow landowners and developers to destroy wetlands. They also require the permittee to propose mitigation, meaning they must submit a plan to restore or create wetlands elsewhere to make up for the wetlands destroyed. The Corps allows the public to submit comments on proposed projects, which it considers when determining whether the work is in the public interest, before issuing permits. MCE regularly submits comments on such projects and the applicants’ proposed mitigation. To better understand projects so it can submit substantive comments, MCE uses FOIA to ask the Corps for the documents submitted by the applicant, as well as communications between the applicant and the Corps about the proposed project.

In many cases, the Corps has refused to release documents to MCE, claiming that all documents related to the project are subject to FOIA Exemption 5. Exemption 5 is designed to protect privileged communications within or between government agencies and does allow a governmental agency to withhold from disclosure “inter-or intra-agency memorandums or letters.” However, it does not allow the agency to withhold documents submitted to it by outside parties, such as the original permit application, nor does it protect communications that the agency has with permit applicants and other outside organizations and people.

“Denying these documents destroys transparency and accountability while eroding the public’s trust in the government’s ability and willingness to act in the public interest,” said Navarro. “The public’s ability to provide meaningful comments is hampered by the Corps’ unlawful use of these FOIA exemptions,” Navarro continued.

MCE has consistently pointed out these limitations on Exemption 5 to no avail. In the past, it filed two lawsuits and was eventually able to obtain the requested documents, but it did not receive them in time to comment on the proposed project before the Corps issued a permit. The Corps has taken up to 2 years to release requested documents. Nor has the Corps changed its practice in response to MCE’s prior suits.

MCE’s filing asks a federal court to declare that the documents being withheld by the Corps districts in Missouri are not subject to Exemption 5. The lawsuit lists each of the instances where the Corps has refused to disclose these kinds of documents over the last several years.

“MCE filed this action in hopes that this type of court intervention will put an end to the Corps’ misuse of Exemption 5, making it easier for not just MCE, but other citizens and citizen groups, to obtain documents,” said Elizabeth Hubertz, attorney for MCE.

The case is called Missouri Coalition for the Environment v. U.S. Army Corps of Engineers, No. 18-cv-00663-TJK (U.S. District Court for the District of Columbia). MCE is represented by the Interdisciplinary Environmental Clinic at Washington University in St. Louis.