sunsetsky

Mesa Verde National Park
and the
Freedom of Information Act

Two years ago and then again this year, we occasionally heard stories and rumors about the park's budget, about how the superintendent was often gone, and about some of the basic problems at Mesa Verde National Park. This year, we also noticed there were a lot of unfilled vacancies, a lot of things that just weren't happening anymore, and signs of problems.

So Bruce started to ask questions. And being from New Jersey where he had served as a public official and had worked under the guidelines of the Sunshine Law and the Freedom of Information Act, and where 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, he simply began to ask for information about the expenditures and budget of Mesa Verde National Park.

To make a long story short, eventually Bruce filed 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 Intermountian 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.

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 "courtesty" 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.

After giving the park a month to respond to his first letter, Bruce eventually filed a formal FOIA request. Nevertheless, before responding to the Deputy Superintendent's email (his letter of July 24, 2009) and before sending his first formal FOIA request, he had called and talked with the head FOIA Officers of both the Department of Interior and the National Park Service just to make sure that as a government employee, there was no reason why he couldn't pursue a FOIA. There wasn't. And as a result of those conversatoins, it was decided that Bruce's initial FOIA request and its accompanying letter should be sent directly to the Intermountain Regional Office instead of directly to Mesa Verde National Park.... eventhough usually the first request is sent to the office in which the records you are seeking are located.

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.) 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 consequenty, he sent Jack O'Brian a second, modified FOIA request in which he priortized 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, modied 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 announced his sudden retirement.

Unfortunately, instead of following the instructions Bruce had given in his second, modified request, Jack O'Brian responded 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.

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

Officially, Bruce's FOIA requst 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.

Consequenty, 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.

Normally, the Appeals Officer of DOI has 20 days to respond to an appeal. When he had not gotten a response after almost two months, Bruce called the Appeals Office, spoke with a representative of the office, and then summarized his call in one final letter.

In an email sent to Bill Nelligan on January 28, 2010, Bruce suggested again that Bill Nellgian and the Park Service had nothing to lose and everything to gain by simply releasing the information he had requested.

Finally, after not hearing from the Appeals Officer (from DOI's Office of Solicitor) after three months, Bruce's finally wrote his final and last letter of appeal to the Department of Interior's Secretary Salazar with cc's to NPS Director Jon Jarvis and the DOI's FOIA Liaison Officer Ray McInerney.

This final and last letter to Secretary Salazar is 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 exhaustng 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. Unfortunatley, 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.
  • More likely, he will ask for help from official news media. Two news organizations have offerred 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 senarios 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?

So now we wait and see what happens.

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 Poicy 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

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

If you don't want to receive these updates or know of anyone who should be included, please let us know!

bruce@schundler.net