Agencies Withhold Documents about Closures of Private Businesses in Government Shutdown

In last October’s government shutdown, the Obama administration closed down, or blocked access to, many private businesses that had been allowed to operate in earlier shutdowns, such as during the Clinton administration.  After lawyers and legal commentators suggested that these closures of private businesses were illegal, and pointed out that they were an unexplained departure from past agency practice, I filed a series of Freedom of Information Act (FOIA) requests with the agencies that carried out these closures — the National Forest Service, the National Park Service, and the Department of the Interiors — seeking to find out which officials were responsible for these improper closures, and how the decision to close them was made.

(Testimony by CEI’s Myron Ebell suggests that the National Park Service was probably the worst offender among all the agencies. A judge later ruled in favor of parents’ legal challenge to the National Park Service’s closure of a state park used by their children, and other judges apparently issued temporary restraining orders against things like the suspension of timber operations. A Federal judge was apparently about to issue an injunction against the closure of private concessions in National Forest Recreation Association v. Tidwell when the shutdown finally came to an end on October 17.)

In FOIA requests submitted on October 9 and 10, I sought information about the orders closing down these businesses, how the targeted private businesses were selected (some politically connected businesses were spared being closed), and about the policies the government relied upon in shutting them down. Months later, long after the legal deadline for responding to my FOIA request, the National Park Service and the Department of the Interior still have not produced any documents at all, even though they were legally required to respond within 20 working days after I made my request.

In March, the Forest Service did finally respond, but its response — producing only agency communications that occurred after the shutdown ended — suggests that it has withheld, or failed to search for, the most interesting (and potentially incriminating) documents.

Although my FOIA request sought documents related to the closures of private businesses, which occurred in early October, and the planning of those closures, which occurred in late September and early October, the Forest Service produced only emails from long afterwards, at the end of the shutdown, October 17, when the government began reopening itself and allowing private businesses to reopen.  Thus, it produced no emails or other documents for the most critical time period covered by my request (late September and early October 2013), when the closures were planned, carried out, and publicly discussed by the Forest Service, even though the Forest Service was publicly discussing that very topic with reporters at the time and thus certainly possesses internal documents about that topic. Instead, the emails I have received date from the end of the shutdown, after essentially all relevant decisions were made and most communications and internal discussions about this subject would necessarily have already occurred.

During the very period when the Forest Service claims it had no documents or emails or internal communications about the closures, Forest Service spokesman Leo Kay is repeatedly quoted in newspapers like the October 5 Metro-West Daily News and the October 12 St. Johnsbury Caledonian-Record about the closures and the Forest Service policies that led to them.[1] In the Daily News, this agency spokesman claimed that the “same policy was in place during the government shutdown in 1995 and 1996” regarding the closure of these private businesses, as even Democratic members of the New Hampshire Congressional delegation expressed surprise and alarm at the closures. Presumably, this agency spokesman conferred with his superiors before making these claims, but no such emails or documents reflecting that have been produced or identified by the Forest Service. (This remarkable claim by the Forest Service spokesman does not appear to have been made by the government in response to the subsequent lawsuits brought against it over its closures of private businesses and privately operated facilities in the 2013 government shutdown.)

In press reports in early October, the Forest Service repeatedly, publicly discussed the first and third subjects listed in my FOIA request, namely, the policies it was purportedly relying upon, and why it allegedly shut down certain private businesses in the government shutdown. It is thus inconceivable that there were no internal emails discussing these subject within the Forest Service during that very period in early October.[2]

As the federal appeals court with jurisdiction over the Forest Service has noted, it is simply “implausible” for an agency to make such a claim that it “does not possess a single document” in response to a FOIA request about a subject it publicly discussed at the time. See ACLU v. CIA, 710 F.3d 422, 430 (D.C. Cir. 2013). It is even more implausible to suggest that such documents do exist about a subject after the controversy over it has largely passed, but not during the earlier period when the controversy (reflected in press queries to the agency and Congressional inquiries directed at it) was at its peak, and lawsuits had been filed against it over the closures giving rise to that controversy. Yet, the emails I have received are all from after that period.

The Forest Service necessarily must have discussed this controversy internally well before October 17, since members of Congress communicated with it regarding these subjects in early October. That included an October 11 letter from a House Committee Chairman. As an October 11 news item noted,

House Natural Resources Committee Chairman Doc Hastings (WA-04) today sent letters to the U.S. Fish and Wildlife Service Director Dan Ashe and U.S. Forest Service Chief Tom Tidwell regarding the Obama Administration’s actions to unnecessarily and arbitrarily restrict public access to wildlife refuges and Forest Service lands during the government shutdown. . . .

“Just as we have seen in the National Parks across the county, the Obama Administration is arbitrarily and inconsistently barricading open spaces, restricting access to privately operated facilities within the forests, and wildlife refuges, and hurting small businesses that do not rely on federal funds to operate. Again, many of these places were not barricaded during the last government shutdown 17 years ago. The Obama Administration is taking advantage of every opportunity to make this shutdown as painful as possible,” said House Natural Resources Chairman Doc Hastings (WA-04).

The letters request that necessary steps be taken to keep documents related to these decisions, as the Committee intends to soon send a formal document request letter. The letters also note that the Committee is considering future oversight hearings on the selective closures being implemented by the Forest Service and U.S. Fish and Wildlife Service.

Activities such as hunting and fishing, which are managed by the states, ranching and other recreational uses are being blocked from these sites, many of which are usually unfenced and intermittently staffed or patrolled by Interior or Forest Service personnel. The closure of these wildlife refuges and National Forest lands further illustrates the inconsistent and arbitrary actions of the Department of the Interior and the Forest Service during the government shutdown.

Additionally, the Committee will continue oversight into the inconsistent and arbitrary closures of privately funded business that happen to be on federal lands. . . . [3]

An October 9, 2013 letter from Congresswoman Carol Shea-Porter (D-N.H.) to the chief of the Forest Service also raised this subject:

On Wednesday, Shea-Porter wrote a letter to U.S. Forest Service Chief Tom Tidwell urging him to reopen the 22 privately run campgrounds in the White Mountain National Forest.

“There is no reason to close these campgrounds down,” she wrote to Tidwell. “No federal money is spent to run these locations, as the private operators pay for maintenance upkeep and insurance.”

Shea-Porter said, “This closing, which the agency has justified as part of the government shutdown, does not make sense from a financial perspective for the government and will inflict undue economic hardship on local campground operators.”[4]

This insufficient response to my FOIA request does not comply with the law’s requirements. It is obvious that responsive documents have been overlooked and not produced. For example, the Forest Service should search the email accounts of Forest Service employees (such as Leo Kay), who publicly discussed the closure of private businesses in the shutdown, or discussed the policies allegedly relied upon to close them (including any personal email accounts used to conduct agency business during the shutdown).[5]

[1] See Robert Blechl, White Mountain National Forest: Private Campgrounds To Stay Closed In N.H. National Forest Trails Remain Open, St. Johnsbury Caledonian-Record, Oct. 12, 2013, at A3 (discussing closure of private campgrounds in White Mountain National Forest, and quoting Forest Service spokesman Leo Kay, “about the closure of the private campgrounds,” with his response about why “we closed” those “concession-run campgrounds”); Rik Stevens, Federal Shutdown Fallout: NH campgrounds forced to close, MetroWest Daily News, Oct. 5, 2013, at 8 (quoting Forest Service spokesman Leo Kay claiming that the “same policy was in place during the government shutdown in 1995 and 1996” regarding the closure of these private businesses).

[2] Not all Forest Service employees got furloughed during the shutdown. See Rajiu Chebium, The Federal Government Shutdown Explained, Salem Statesman-Journal, Oct. 2, 2013, at A1. Indeed, 57 percent of all federal workers kept on working during the so-called “shutdown.”

 [3] Chairman Hastings Seeks Answers Over Shutdown Closures in National Forests and Wildlife Refuges, State News Service, Oct. 11, 2013 (available in Westlaw at 10/11/13 STATESNEWS 00:00:00).

[4] See Robert Blechl, White Mountain National Forest: Private Campgrounds To Stay Closed In N.H. National Forest Trails Remain Open, St. Johnsbury Caledonian-Record, Oct. 12, 2013, at A3.

[5] See, e.g., Landmark Legal Foundation v. E.P.A., 2013 WL 4083285, *6 (D.D.C. Aug. 14, 2013) (rejecting agency’s attempt to dismiss FOIA lawsuit against it, and finding inadequate search, where “EPA did not search the personal email accounts of the Administrator, the Deputy Administrator, or the Chief of Staff,” but rather only searched only “accounts that were in its possession and control,” despite the existence of “evidence that upper-level EPA officials conducted official business from their personal email accounts”); Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 327-28 (D.C.Cir.1999) (agency should have searched records located off of its premises in Atlanta at a non-agency site that contained federal records); Burka v. U.S. Dept. of Health and Human Services, 87 F.3d 508, 515 (D.C. Cir. 1996) (data tapes were “agency records” subject to FOIA, even though they were “neither created by agency employees, nor are they currently located on agency property”).