Yesterday Public Citizen and the Natural Resources Defense Council filed a lawsuit under the Freedom of Information Act against the Federal Maritime Commission. The dispute dates back to last October, when NRDC tried to get records about the Commission’s unusual decision to investigate and seek termination of portions of programs at two California ports that aimed to reduce truck emissions, called the Clean Trucks Programs. Why the Commission—usually concerned with regulating shipping—took such a keen interest in a program regulating trucks, is a topic of much speculation, and you can read more about NRDC’s efforts to fight for the Clean Trucks Programs here.
However, not only the environment is at stake in this case, so are our government transparency laws. Under FOIA, requesters are supposed to be granted a waiver of all the fees associated with searching for and copying the requested records if the disclosure will further the public’s understanding of the operations of government and is not in the commercial interest of the requester. The Commission denied NRDC a public interest fee waiver, even though NRDC extensively documented how it intended to use the information to inform the public about the Commission’s investigation of the programs.
Shockingly, in this case, the Commission invented a so called “commercial interest” that it claimed NRDC had in the requested documents. The Commission’s logical train is fuzzy, but it boils down to something like this:
NRDC advocated for the Clean Trucks Programs’ implementation, and in so doing, at times formed a coalition with labor unions, health groups, community groups, and faith-based groups. One of the issues on which labor unions and environmental groups like NRDC agreed was the so-called “employee requirement.” This aspect of the programs requires trucking companies to take responsibility for purchasing and maintaining the newer, cleaner trucks that will be required under the clean trucks programs. This is good for workers, because employees have better job protections than independent contractors. Moreover, workers will not have to pay for purchasing and expensive maintenance on these trucks. But it is also good for the environment because it places the burden on companies. If companies use independent contractors, there is no way to enforce new standards because the ports would have to ensure each truck driver’s individual compliance. There are many other environmental benefits to a more systematic, sustainable system of port trucking.
The Commission claims first that unions have a “commercial” interest in the Clean Trucks Programs because the employee mandate would benefit their members. This is a dubious proposition to start with, but even assuming that’s true, the Commission’s logic gets even weirder. The Commission then says that because NRDC was advocating for the employee requirement in coalition with the unions, which, it claims, is not related to NRDC’s environmental mission, it was acting as a proxy for the unions in furthering their commercial interest. Then, it claims, the FOIA request was to assist NRDC’s advocacy efforts in this area, and therefore would commercially benefit NRDC. Because, it said, the disclosure would primarily further NRDC’s “commercial” interest, the public interest fee waiver was denied.
Beyond the absurd notion that the Maritime Commission is allowed to define what NRDC’s environmental mission is, this manufactured commercial interest is dangerous for all of us. If agencies are allowed to make up “commercial interests,” this will weaken FOIA and result in a less transparent government. Public interest groups and non-profits use FOIA all the time to get information for the purpose of public dissemination. This is frequently how we all learn about government activities. (For more evidence of this, look at today’s New York Times article about how Britain’s new freedom of information laws led to public scrutiny of Members of Parliament’s expenditures of public dollars, something that would not have been possible before those laws were passed). If every non-profit that forms a coalition with industry or business or any potentially for-profit organization on an issue is deemed to have the same commercial interests as its coalition partners, FOIA fee waivers will practically evaporate. This rationale cannot be left to stand.
Moreover, NRDC has a documented history of using records obtained under FOIA to educate and inform the public about what the government is doing about particular environmental issues. And, the records at issue here were not solely about the employee mandate, union’s interests, or truck drivers’ interests. The Maritime Commission conveniently ignores the fact that it is taking actions that have very broad implications for the entire clean trucks programs at both ports—even beyond the employee requirement. The records were about what information the Commission had when it decided to undertake an investigation of programs that would protect our environment. This is information the public should know, and Public Citizen and NRDC are willing to stand up for our congressionally provided rights in court.