By Paul Levy
Last month, the stories about the denial of permission for March for Our Lives to use the National Mall on Saturday March 24, along with the release of a heavily redacted permit application for the student group that given priority on that date for a “rain date” for the Sunday, March 25 filming of a “talent show,” presented a few oddities that led me to make an FOIA request for some of the documents relating to both applications. I published a blog post in this space identifying the questions that I thought were raised. Having raised these questions, and having received some inquiries from the press and public about what I learned, I think I have a responsibility to clear the air by relating the outcome of the investigation that I pursued after the Park Service responded to the FOIA request. My conclusion is that the Park Service did no more than give priority to the first applicant for that date (as it should have done).
In some respect, this is no thanks to the Park Service’s local FOI officer, who consistently behaved in a way that made me suspect his agency’s motives. After he consistently refused to return my phone calls, I got his attention with an emergency message that impelled him to talk to me; while we were on the phone, he told me that the additional disclosures that he posted to the Park Service’s online reading room were intended to show that there was no conspiracy to deny an ideal permit to the demonstrators. But then, in response to my further questions, he gave a cramped reading to my FOIA request that appeared to me designed to avoid revealing documents, or the absence of documents, that might have called the Park Service’s neutrality into question.
But in the end, it was the FOI officer’s incompetence that let me discover the fairly uninteresting truth. Although the park service had decided to withhold both the name of the student applying for the “talent show filming permit” and the name of the student group and the school (directly contrary to its practice of identifying each and every person and group connected with other permits sought at about the same time, for example here and here), the FOI officer messed up the process of redaction and failed to cover up the name of the student in the subject line of one email.
Public Citizen supporter Leonard Wayne, who devoted several hours over the course of a few days following up on the details, was able to use that name identify both the student group and the university that the student members of the group attended. And although Wayne was unable to reach the student or the group to ask questions, another Public Citizen supporter (a former Litigation Group colleague now on the law faculty of the university in question) was able to help me connect with a senior administrator at that school. That administrator responded with alarm at the possibility that it was a group of students at her school that were standing in the way of having this important gun control march on the National Mall, and wanted to know how she could be helpful in avoiding such interference, raising the possibility that the group might cancel its permit to make way for the March. She communicated both with me and with the student group to help answer my questions.
It turns out that the student group originally sought a permit in late January for an unspecified location on the mall, and indeed for an unspecified date in late March. Some of these documents reflected that English is not the first language of these students, which may well have led to some imperfect expression of what they wanted, as well as a lack of understanding about what the March for Our Lives represented. Although the eventual permit application, as written, sought to use a small part of the National Mall on Sunday March 25, with the previous day, Saturday March 24, as the rain date, that was really not what the student group wanted – they preferred March 24 and intended the following day as the rain date. As of February 20, when the first written application for March for Our Lives on the National Mall was submitted, the Park Service had finished processing this permit application and had decided to grant the permit, although it was not until the following day that, spurred by an NPS reminder, the student had sent in the final required signature.
The March for Our Lives applicants were told that there was a permit recipient ahead of them. A Park Service spokesman told the press on March 1 that the March for Our Lives applicants had been put in touch with the talent show filming permit applicant, and my school administrator source told me that yes, the filming applicant had received a call from the Park Service letting her know that she might be getting a call from another applicant. But the student had no appreciation of the political or social significance of the March for Our Lives, and, in any event, she never did get that call. I was never able to speak with the March’s organizers, but it strikes me as quite possible that, by the time the March organizers were given the chance to speak to the filming permit holder, their own plans were sufficiently firm that they were in no position to delay while exploring the prospects for acquiring their originally preferred venue.
Perhaps this was a missed opportunity. Or, perhaps not. The Pennsylvania march permit was not filed until March 7, and not finalized until March 13; had the Park Service not withheld the identity of the student group and the university in question, following the policy of releasing such identifying information, instead of using a bogus invocation of Exemption 6 to hide that information, it is possible that the university’s leadership would have promptly let the filming and talent show students know the importance of what activity they were inadvertently blocking. Perhaps a solution might quickly have been found. When I first objected to the application of Exemption Six to deny access to the name of the student group and the university, it was precisely my thinking that the school might well want to get out of the way of the March for Our Lives. But by the time I reached the school, it was the week before the March, plainly too late for the March organizers to consider changing their plans. But at worst I see a case of bureaucratic bungling by the FOI officers, and no evidence of bad faith or political animus on the part of the relevant permitting staff at the Park Service.
A note about the identifying information: After I told the FOI officer about his inadvertent redaction error in the documents, which had been posted on the Park Service’s Reading Room for frequently requested documents (a warning about that is what impelled him to talk to me on the phone), he went back and re-redacted the name. I still see the Park Service’s redaction of the group name and university names as wrong under Exemption 6, but given the prompt cooperation I received from the school administrator, I have decided to honor her request to spare the student group any possible embarrassment.