Federal Judge Slams Army Corps Over Permit Secrecy

WASHINGTON (CN) – The Army Corps of Engineers regularly violates the Freedom of Information Act when it comes to disclosing information about Clean Water Act permits, a federal judge ruled Thursday.

The Mississippi River at sunset. (Photo by Marty Kittrell via U.S. Army Corps of Engineers)

“The Corps’ record of repeated and almost identical FOIA violations leads to the unavoidable conclusion that its decisions resulted from a policy or practice to withhold materials,” the 18-page ruling says.

The Missouri Coalition for the Environment requests Clean Water Act permit application materials because it often comments on pending permits under Section 404 of the law as part of its work to preserve bodies of water in Missouri. 

After the Army Corps of Engineers issues the permits to various districts, the districts issue public notice of their proposed activity. But they often keep secret some of the materials associated with their applications, which the coalition requests to help prepare its comments on pending applications.

Elizabeth Hubertz with the IEC Washington University Law School filed a lawsuit on behalf of the Missouri Coalition for the Environment last March after the Army Corps tried to apply the deliberative process privilege to non-agency records related to the permits for the fifth time in four years.

The coalition said the Corps continued that pattern even after it sued the agency twice for wrongful use of the FOIA exemption.

Though the Army Corps eventually disclosed the records and acknowledged the withholdings violated the law, the agency failed to persuade U.S. District Judge Timothy Kelly that the series of nearly identical withholdings stemmed from inadvertent mistakes.

“The court cannot reasonably conclude that those decisions were isolated mistakes,” Thursday’s ruling states. “And because, as the parties agree, withholding materials on that basis violates FOIA, the policy or practice is unlawful.”

Attorney Hubertz did not immediately respond to an email seeking comment on Kelly’s ruling.

The Army Corps had argued that it was not required to release the records because they constitute part of the agency’s deliberative process.

Such records are often protected by FOIA’s deliberative process exemption to ensure that federal officials can candidly discuss matters related to agency decision-making.

It cannot be used, however, to exempt non-agency materials from disclosure.

Judge Kelly, a Donald Trump appointee, called it “remarkable” that declarations submitted by the Corps did not dispute the coalition’s claim that the agency has a policy of wrongfully invoking the exemption.

He also noted that the Corps failed to cite a single instance where it did release non-agency records in response to Clean Water Act permit application materials.

“If, as the Corps now claims, the improper withholdings under Exemption 5 were merely isolated mistakes, examples of times when it released the application files for pending permits should abound,” the judge wrote. “But the Corps offers none.”

Kelly granted summary judgment to the Missouri Coalition for the Environment but declined to issue an injunction since the Corps said it would not continue applying the deliberative process exemption to non-agency records.

“The court is mindful that its primary concern must be ensuring the proper release of documents to the public under FOIA,” the ruling says. “But the court finds, in its discretion, that a declaratory judgment is adequate to ensure that the Corps does not continue its unlawful practice.”

Lawyers for the government did not immediately return an email seeking comment on Kelly’s ruling.

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