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Lawsuit: Department of Homeland Security Failed to Comply With Order to Produce Records on Chemical Facilities

Public Citizen and Greenpeace Seek Records on Chemical Facilities; Agency Has Produced Redacted Records

WASHINGTON, D.C. – The U.S. Department of Homeland Security (DHS) should immediately comply with the delegated agency head’s order to release complete records regarding formerly high-risk chemical facilities, Greenpeace said in a complaint filed today.

Public Citizen, as counsel for Greenpeace, filed the complaint in the U.S. District Court for the District of Columbia.

The complaint stems from a Freedom of Information Act (FOIA) request filed by Greenpeace in May 2012. Greenpeace sought the records about certain formerly high-risk chemical facilities that DHS no longer considered to be high-risk. Nearly a year later, DHS responded by withholding the requested records in full, claiming that the records were exempt from disclosure under FOIA because disclosure could endanger physical safety of one or more people.

Greenpeace appealed to the administrative law judge (ALJ), who was designated to serve as the head of the agency to resolve FOIA appeals. In June 2014, the ALJ issued a decision agreeing with Greenpeace that the agency hadn’t supported its claim that the records were exempt. The ALJ ordered DHS to produce the records.

In December 2014, DHS produced records. However, the records were almost entirely redacted, and DHS claimed they were redacted for exactly the same reason – physical safety – that the ALJ had already rejected. Greenpeace appealed again to the ALJ, who stated that he had already ordered the documents released and could do nothing more.

“This is bureaucratic stonewalling that could have real consequences for communities located in the shadow of the nation’s biggest chemical plants,” said Charlie Cray, Greenpeace senior research specialist. “DHS is compromising safety and security by failing to identify which facilities are exempt from the regulations. They repeatedly have testified in Congress that over 3,000 chemical plants no longer store large quantities of hazardous chemicals such as chlorine gas that made them potential terrorist targets. Yet when asked to identify these facilities − which would force their competitors to adopt similar measures − DHS has refused.”

“The ‘security’ justification we have heard most often from DHS is that ‘sources and methods’ could be compromised. Yet virtually none of the methods revealed so far are trade secrets,” Cray added. “This kind of secrecy is as senseless as keeping fireproof materials a secret from the construction industry.”

In the complaint filed today, Greenpeace is asking the court to order DHS to make the records public.

“This case presents a fundamental question: Does FOIA permit an agency to disregard the determination made by the head of the agency that requested records must be disclosed and withhold them anyway? The answer must be no,” said Sean Sherman, the Public Citizen attorney handling the case.

Read the complaint.