Judge: FOIA delay “incomprehensible,” but not a reason to keep open comment period

Senior Attorney Kym Hunter, Associate Attorney Maia Hutt, and Senior Attorney Morgan Butler appeared today in federal court in Roanoke, Virginia. (© Mike Mather )

A federal judge today told government attorneys that a lengthy delay in producing public documents to SELC was “incomprehensible” and “somewhat outrageous,” but also told attorneys he did not have the authority to order the government to extend the public comment period over changes proposed to the National Environmental Policy Act.

The Council on Environmental Quality has proposed a sweeping rollback of NEPA that would, in some cases, reduce or eliminate the act’s core principle of listening to the voices of affected people and communities when large projects might alter their landscapes and lives

For more than a year and a half, SELC has sought under the Freedom of Information Act documents that would shed light on the motive behind the proposed changes from the Trump administration, and who was behind them. But the government said it would not be able to fully comply until November of 2020, long after the March 10 deadline for public comments.

SELC Senior Attorney Kym Hunter argued that getting the public documents would help promote “transparency in government” and would ensure the public could offer more detailed comments on the proposed NEPA changes. She argued in legal papers and again in a Roanoke federal court today that it would be unfair for the government to close the comment period before it had produced the required public documents.

She said a quicker production of documents, a longer comment period, or a combination of both would help better inform the public and help citizens submit more informed comments.

Under questioning by Judge Glen E. Conrad, Hunter conceded her argument was a novel one, but said the government’s rush to close the comment period while at the same time dragging its feet on producing documents was an extraordinary circumstance that justified the remedy.

Judge Conrad ruled that FOIA law does not give him the authority to alter the length of the public-comment period as a remedy. However, he made it clear the government delays in producing the public records were not acceptable and invited SELC to take the larger question to a higher court.

The time it is taking for the government to hand over the documents “defies comprehension and certainly cannot be categorized as prompt,” he said, calling the delay the worst he as seen in his career. While denying SELC’s motion to keep open the comment period, he also said that he would make sure the public records are handed over more quickly.

The judge said he “had a deadline in mind,” but urged the government lawyers to come up with one on their own. He also asked for a list of people in Washington he would need to bring to his court to “take to task” if a reasonable deadline could not be met.

Hunter said the government agreed to produce all the public documents by May 5.

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