sunsetsky

Mesa Verde National Park
and the
Freedom of Information Act

During the summer of 2007 and again last summer (2009), we occasionally had heard stories and rumors about the park's budget, about how the superintendent often was traveling, and about some basic problems at Mesa Verde National Park. During the summer of 2009, we also noticed there were a lot of unfilled vacancies, a lot of things that just weren't happening anymore, and some signs of problems. And so Bruce started to ask questions.

He had served for many years as a Town Councilman (in Peapack-Gladstone, NJ) and on his town's Planning Board (in Tewksbury, NJ); he had worked under the guidelines of "Sunshine Laws" and the Freedom of Information Act; and he was familiar with the extent to which information and financial records of governmental agencies and departments are supposed to be available to the public. Consequently, somewhat innocently he began to ask for information about the expenditures and budget of Mesa Verde National Park.

To make a long story short, eventually Bruce had to file a formal Freedom of Information Act request. After an initial response from the NPS Intermountain Regional FOIA officer, he filed a modified, restated request that arrived at the NPS Intermountain Regional office on Friday, September 10th. He also sent letters to the FOIA officers of both the Department of the Interior and the National Park Service, and they received their letters and copies of Bruce's FOIA correspondence on September 17th. Suddenly on Monday morning, September 21st, the superintendent, Larry Wiese, announced his retirement----first to his top management team and then on September 22nd to the rest of the employees at Mesa Verde National Park.

Many people have asked for copies of the letters Bruce wrote, and others have wanted to learn more about the FOIA process. And so in the interest of openness and transparency, here's an outline of how one pursues a Freedom of Information request, complete with all the letters and correspondence related to what Bruce did.

Courtesy Letters and the First FOIA Request:

First of all, it should be noted that if at all possible, it is much easier if a formal FOIA request can be avoided. It's easier for the park or governmental agency, it eliminates a lot of valuable time and energy being wasted on FOIA mandated reports and procedures, and it's just easier for every one involved. And so Bruce first tried an informal approach--writing what could be called a "courtesy letter" requesting some very basic financial information ......without all the procedural and reporting mandates of a formal FOIA request.

Consequently, first he sent a "courtesy" letter to Linda Lanier, the Budget Analyst at Mesa Verde National Park (essentially the CFO of the park). Since the park wouldn't give him any of the information he had requested, three weeks later he wrote Linda Lanier again. In response to this second letter, he received an interesting email from the Deputy Superintendent, and finally wrote one last letter before filing a formal FOIA request.

Before responding to Bill Nelligan’s email of July 21, 2009, Bruce had called and talked with the head FOIA Officers of both the Department of Interior and the National Park Service just to clarify that as a government employee, his right to pursue a FOIA request was not limited in any way. It wasn't. Furthermore, as a result of those conversations, it was decided Bruce's initial FOIA request and its accompanying letter should be sent directly to the Intermountain Regional Office ....instead of to Mesa Verde National Park. (Usually the initial FOIA request should be sent to the office where the records you are seeking are located.)

And so on July 31, 2009, after giving Mesa Verde National Park a month to respond to his first courtesy letter and request for information and week to respond to another letter sent on July 24, 2009, Bruce gave up. He essentially realized the Superintendent (Larry Wiese) and Deputy Superintendent (Bill Nelligan) were not going to release any information---even if this meant ignoring the letter and spirit of the President’s Memorandum of January 21, 2009 concerning a new era of openness and transparency in the Executive Branch, or the Attorney General’s Directives on new FOIA guidelines (see links to these at the end of this article).

With a certain amount of regret and disappointment, Bruce eventually felt he was left with only one option; and so he sent his first formal FOIA request to Jack O’Brian, the Intermountain Regional FOIA Officer for the NPS.

Once a formal FOIA request is filed, certain procedures have to be followed by the FOIA officers. For instance, they are supposed to respond within 20 days. Jack O'Brian, the Intermountain Region FOIA Officer for the National Park Service did respond initially within 20 days, and then responded again with an estimate of how much it would cost to process Bruce's FOIA request. The initial estimate was $1593! According to Department of Interior regulations, the Department and any of its agencies can give any FOIA request two hours of free research and review time and 100 pages of free copying....but after those limits FOIA requesters have to pay to have their requests processed. Nevertheless, if the total that will be charged is estimated to be less than a $30 threshold, again there is no charge.(A list of the current hourly rates the Department can charge and the cost per page for duplication can be found on the DOI's web site.)

The Second, Modified FOIA Request and the Sudden Retirement of the Mesa Verde NP's Superintendent:

After receiving Jack O'Brian's letter with a $1593 estimate for processing his FOIA request, Bruce called the head FOIA officers in Washington again....and subsequently, he sent Jack O'Brian a second, modified FOIA request in which he prioritized the information he was seeking, limited it to documents only, and requested that the park give him whatever he could receive without a payment of fees (e.g. up to two hours of free research and review time, and up to 100 pages of free copying.)

After sending this second, modified FOIA request to Jack O'Brian, Bruce also sent letters to Alexandra Mallus, the DOI's FOIA Officer, and Diane Cooke, who at the time was the Chief FOIA Officer for the NPS.

The Monday of the week after Bruce's second, modified FOIA letter was received by the Intermountain Office and by the FOIA officers in Washington, D.C., Larry Wiese, the Superintendent of Mesa Verde National Park suddenly announced his early retirement from the National Park Service.

Unfortunately, instead of following the instructions Bruce had given in his second, modified request, Jack O'Brian responded to Bruce’s second, modified FOIA request with another estimate of what it would cost to process Bruce's request---$796.50.

At that point it became clear a second story was beginning to unfold:

    • the first was Mesa Verde National Park's unwillingness to release any documents and/or any information,
    • and the second was the role played by NPS FOIA Officers in denying, delaying, and obstructing Bruce's FOIA request.

A Disagreement on 43 CFR 2.18 is Resolved and Bruce's FOIA Request is officially Granted!
(Four Months After Bruce's First Letter to Mesa Verde National Park's Financial Budget Analyst)

In November, we entered another round of letters and emails. Diane Cooke had changed jobs, and Charis Wilson, the new acting head FOIA Officer for the NPS, began to try to move the process along. Unfortunately, Charis Wilson and Bruce disagreed on the interpretation of 43 CFR 2.18....and so he argued his case in his November 7, 2009 letter. Two days later his request is granted!

November 9, 2009---The attachment from Charis Wilson's Email with the CONSOLIDATED ANSWERS to his Granted FOIA Request
To understand or make sense of these 10-575's on FY 2007, 2008, and 2009, you need to know how the local accounts are designated. It also helps to be able to compare Mid-Year information with final Year-End information. And so I've included a sheet on "Local Accounts" and a Mid-Year 10-575 for FY 2009. These printouts for FY 2009 were given to me and sent to me in July---at which point I had been asking for only FY 2007 and 2008 information:

Local Accounts Designations

The Mid-Year 10-575 for FY 2009

Bruce Files an Appeal with the Dept of Interior's Appeal Officer:

Officially, Bruce's FOIA request had been granted!! But there were problems. Essentially he felt that what he had been sent was too little, too late, and may not have been completely accurate.

Consequently, Bruce immediately began the appeal process in which a letter of appeal with the copies of all the letters, correspondence, and emails was sent to the Appeals Officer of the Department of Interior.

Once again in the hope the NPS could save a lot of time and energy and just by completing his FOIA request, Bruce sent another letter to Charis Wilson suggesting the park had nothing to lose and a lot to gain by just fulfilling his entire FOIA request as soon as possible. Unfortunately, he never heard back from her or from anyone at NPS, the IMR, or Mesa Verde.

That final and last letter to Secretary Salazar normally the administrative appeal after which a FOIA requester has to decide whether to request a judicial review in a federal district court, have regular news media request the information that has been requested, have others request the information in smaller units, try appealing to friends and contacts in the legislative branch of government, or just give up.

  • After exhausting the administrative appeals, anyone can ask for a judicial review by filing in any federal District Court. Although there is a filing fee involved ($350.00), the rest of his case would be fairly simple and inexpensive to prosecute. Unfortunately, in this case, this would cost both the federal court system and the NPS money that certainly could be better spent. To be sure, throughout this journey, Bruce has tried to obtain information to which he was entitled without incurring a lot of unnecessary expense to the NPS.
  • Bruce can ask for help from official news media. Two news organizations have offered to pursue his request....and as news media, they can ask for the same information and cannot be charged any fees. Furthermore, Bruce has taken all the necessary courses to be a "certified citizen journalist" and might be able to pursue this option on his own soon.
  • Lots of people have offered to submit formal FOIA requests asking for sections or parts of the same information Bruce has requested. If lots of people make FOIA requests, and if they all get their two hours of free research time, and if they all get their 100 pages of duplication for free, eventually all the information Bruce requested can be obtained and it can be made public. Of course, this will take longer, and it will cost the NPS a lot more time and energy than if the Park Service or Mesa Verde NP just completed Bruce's initial request.
  • Instead of appealing to the judicial branch of government, a requester can try contacting representatives of the legislative branch.

Unfortunately, each of these scenarios would involve the National Park Service in using money and resources that could be better spent in other ways. That would be unfortunate---especially since Bruce's official FOIA request was such a simple one. Can you imagine what's involved in more complicated ones?

But now there's another alternative.

The Office of Government Information Service (OGIS):

On February 12, 2001, Charis Wilson, the Acting NPS FOIA Officer, sent Bruce the following email:

Since she was appointed and got involved with this FOIA request, Charis Wilson has continued to try to move the process along; she seems committed to the goals and objectives of FOIA; and she seems willing to be cooperative, helpful, and proactive---and seems to be trying to follow the directives and memorandums from President Obama and the Attorney General. And so Bruce emailed Ms. Wilson a response to her email on February 16, 2010:

While still waiting to hear from the Appeals Officer (DOI) or from Secretary Salazar, Bruce did contact the Office of Government Information Service since it was created to resolve and deal with problems like we have had with this FOIA request from the very beginning. Specifically, OGIS began operations in September 2009 and is supposed to:

  • provide services to mediate disputes between FOIA requesters and Federal agencies
  • review policies and procedures of administrative agencies under FOIA
  • review agency compliance with FOIA
  • recommend policy changes to the Congress and President to improve the administration of FOIA.

The Appeals Officer (Darrell R. Strayhorn) Makes a Final Decision
(Eight Months after Bruce's First Letter to Mesa Verde NP)

Finally, on March 9th, in a letter dated March 4, 2010, Bruce heard from Darrell R. Strayhorn, the Appeals Officer of the Department of Interior. Essentially, she rendered her decision and argued that the National Park Service, the management of Mesa Verde National Park, and the various FOIA Officers of the National Park Service had done nothing wrong. She wrote that Bruce had received the appropriate amount of information that could have been generated in two hours, and that the case was now closed. Needless to say, the decision was both very disappointing and very revealing. More on that later....

The Finale---Case Closed

Through the OGIS Office, Bruce asked the DOI's Solicitor's Office to reconsider the amount of material he received. Essentially his argument is this:

  • In both of the estimates given by Jack O'Brian of what it would cost to process Bruce's entire FOIA request, Mr. O'Brian used the hourly rate of $59/hour. That is the rate that can be used only when the person processing the FOIA request is classified and paid at a GS-13 grade level or above. At Mesa Verde NP, that limits the number of people who could have processed his request to only five people, and of those, only the Superintendent or Deputy Superintendent, and now the Acting Superintendent are both GS-13 or above and have access to all the administrative budget information Bruce had requested. Others could have processed his request---people like Linda Lanier, the park's Senior Budget Analyst---but the park had implied that only a person with a pay classification of GS-13 or above could process the information.
  • On the other hand, when one looks at what was given to Bruce, it seems it was processed by someone who was working at a snail's pace or by someone who had morphed into a five fingered sloth, and certainly not by someone who is entrusted with managing and operating a major national park with a budget of over $7,000,000. Simply stated, to say that the amount of material he received was all that could be processed in two hours is incredulous. It raises even more questions, it forces one to question the integrity and honesty of what Mesa Verde did and what it reported, and it highlights a problem many FOIA requests have encountered---namely, a bureaucracy that becomes incredibly inefficient and ineffective when FOIA requests are being processed.
  • Consequently, Bruce continues to argue that Mesa Verde National Park owes him more information.

After several months of emails and phone calls, the OGIS Office was not able to get the DOI's Solicitor's Office or the DOI Appeals Officer to reconsider their decisions. And yet, the OGIS Office did pursue part of Bruce's FOIA request---and working the the NPS's FOIA Officer, they were able to get some of the travel vouchers for the second quarter of 2009 for Larry Wiese and Tessy Shirakawa, Mesa Verde's Chief of Interpretation.

Eventually we decided that working through the various appeal procedures and OGIS, we had done everything we could. And so with the NPS, DOI, and OGIS, our case was closed.

Ultimately, Bruce's FOIA request confirmed using the FOIA process can be helpful; FOIA requests can be useful in bringing to light various forms of financial waste, fraud, and abuse; and they do work. This entire process also reinforced the concerns many have that FOIA still isn't working they way Congress had intended it to work, and many people in the government still have to be trained in how to both use FOIA and how to respect FOIA.

And so as we look towards the future, there are several options still to consider:

  • The 2007 Amendments to the Freedom of Information Act open the definitions of who is a member of the news media. And so Bruce may file another FOIA request as a member of the news media. Members of the news media are not charged fees for search and review time.
    • Note:"In this clause, the term ‘a representative of the news media’ means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term ‘news’ means information that is about current events or that would be of current interest to the public."

  • A reporter for the Denver Post has been following Bruce's progress; we'll see if he wants to do anything now that Bruce has finished this particular FOIA request. Similarly, the editor of the National Parks Traveler web site has written about Bruce's experiences (see Interior Department Wants Transparency, FOIA Process Impedes That Goal) and he may pursue another article. Needless to say, there has been increased interest in finding out why Mesa Verde National Park has been so hesitant to share the information Bruce had originally requested---especially since the former Superintendent retired so very quickly after Bruce's second, modified FOIA request was filed. The DOI's Office of Inspector General did do an investigation, but the final report has not been made public.

  • Through his involvement in politics in the past, Bruce has a relationship with his Congressmen Leonard Lance, and Congressman Scott Garrett, whose district includes Tewksbury, NJ where Bruce and Sara lived for many years. Bruce may contact them and encourage them to pursue the suggestions that every federal employee should become more familiar with the rights and responsibilities of the FOIA legislation.

Some Final Questions...and Some Final Thoughts

Of course, some may ask....why pursue this .....especially since the former Superintendent, Larry Wiese, retired and left the Park Service; and the Office of Inspector General did initiate an investigation at Mesa Verde National Park shortly after Larry Wiese suddenly retired; and the Regional Director of the Intermountain Regional Office of the NPS, Mike Snyder, was “reassigned” by the new Director of the NPS and then he suddenly retired.

Actually, the reasons for pursuing this FOIA request are fairly simple. Bruce still believes in the letter and intent of the FOIA laws, and he still believes members of the executive branch should follow the letter and intent of the memorandums and directives from the President and the Attorney General concerning FOIA. And he still loves the National Park Service.

And in the final analysis, positive changes did occur at Mesa Verde....

  • A Superindendent who felt he could do whatever he wanted, and travel as much as he wanted, and commit "waste, fraud, and abuse" with impunity, suddenly and very unexpectedly retired, and left the National Park Service. And that was good....and hopefully it means the park has a little more money to do what everyone wants to do---but couldn't do, because they didn't have enough money in the budget.
  • At least in the immediate future, travel budgets and excessive overtime for division chiefs are going to be scrutinized carefully. As the Acting Superintendent, Bill Nelligan, wrote in an email dated November 22, 2009, to all the division chiefs: "... please exercise discretion when it comes to your budget, especially in the areas of travel and overtime. With regards to OT, as a general rule I am disinclined to approve any OT for Division Chiefs." (These were two of the major concerns I raised in my letter to the Office of Inspector General, and which were discussed during the OIG's subsequent investigaton of Mesa Verde NP.)
And so change can happen, the effort was worth it, and at least one park in the National Park Service is doing a little better!


Continue the story....


If you are interested in the Department of Interior's Freedom of Information Act policies, and in reading the Secretary of the Interior's memorandum of July 2, 2009, the President's memorandum of January 21, 2009, and the Attorney General's memorandum of March 19, 2009. I mentioned these memorandums in several of the letters. These documents and a lot of other information about the Department of Interior's basic FOIA policies can be found at The Department of Interior's FOIA POLICY AND GUIDANCE.

If you are interested in going deeper into the Freedom of Information Act and how it works, go to The Federal Open Government Guide (10th Edition) ---Published by The Reporters Committee for Freedom of the Press. This is a very helpful web site with all kinds of information about how to go about the process of obtaining information from governmental agencies.

For those interested in delving even deeper, the Office of Information Policy of the Department of Justice has promulgated a rather detailed outline of how agencies of the government are supposed to begin following the President's call for Creating a "New Era of Open Government". You can read it at: Creating a "New Era of Open Government" from the Department of Justice's Office of Information Policy (dated April 17, 2009)

Finally if you are interested in reviewing the section from the Code of Federal Regulations, Title 43 CFR Part 2 that is mentioned in a number of the last emails and letters, these documents and technical information about the Department of Interior's basic FOIA procedures can be found here: The Electronic Code of Federal Regulations as updated by the National Archives and Records Administration or you can go to the entire The Federal Code of Federal Regulations.

Bruce's inquiry into the finances of Mesa Verde National Park obviously have raised questions about ethics among park managers, about how money is being spent for travel among park employees, and about how some superintendents are managing our parks as monocrats.

In response, he has written some articles and commentaries for the National Park Traveler's web site, and two other articles on FOIA and the National Park Service, and why FOIA isn't working in many parks.

Return to the opening page Bruce and Sara at Mesa Verde National Park in 2009


Working at Mesa Verde National Park
Typical Daily Work Schedules
Mesa Verde and the Freedom of Information Act
Articles and Commentaries
The Rangers of MVNP 2009


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