Judge Grants Judgment Against NNSA in Records Case

By Sue Major Holmes/Associated Press

A federal judge has ruled in favor of an activist group in its battle to obtain documents on nuclear waste sites, monitoring and 10-year plans for future activities at Sandia National Laboratories.

"In light of the kafkaesque review process adopted by defendant (the National Nuclear Security Administration), it is not surprising that the delay in this case stretched many months beyond the statutorily prescribed time frame'' under the Freedom of Information Act, U.S. District Judge Robert Brack of Las Cruces wrote in his decision Monday.

Citizen Action sued in August 2006 under the Freedom of Information Act to compel the NNSA and the Department of Energy to release the records.

Under the Freedom of Information Act, federal agencies must make a determination on a request within 20 working days. An agency can seek a brief extension, but can continue to withhold documents only if they fall under exceptions to the law.

Brack said he was reluctant to impose "arbitrary time limits'' beyond those set in the law because of the sensitive nature of the information. Instead, he directed both sides to confer over a reasonable time frame for responding to Citizen Action's requests.

Dave McCoy, director of Citizen Action, said he hopes the sessions will result in the group not only obtaining the documents but also working out a way to prevent problems in the future.

"The delay that they've engaged in really causes problems for our organization and other members of the public to review processes that they've got going,'' he said.

Brack plans another hearing on pending motions concerning information the NNSA wants to black out before releasing the documents. McCoy said he hopes that issue also can be handled in the sessions with the NNSA.

Brack denied the NNSA's partial motion to dismiss and granted Citizen Action's 2007 motion for a summary judgment on its claims that the federal agency violated the law by failing to respond in a timely manner to Citizen Action's requests in July 2004, August 2005 and November 2005 and by delaying processing requests submitted in September, October and November 2006.

"This decision should send a strong message to NNSA's management that NNSA can no longer use delay to create secrecy'' about lab operations, McCoy said.

A spokeswoman for the NNSA's Albuquerque office did not return a call Tuesday from The Associated Press seeking comment. There was no answer at NNSA's headquarters office after hours in Washington, D.C.

Citizen Action's lawsuit said that despite regular telephone and e-mail communication, it did not receive the requested documents nor a determination from NNSA about why they shouldn't be released. The lawsuit said the records are considered public.

Brack dismissed the NNSA's contention that case law didn't apply when requests require multiple layers of review.

"FOIA requirements apply with equal force to situations involving national security, sensational or complex issues,'' he wrote.

The judge also said the NNSA offered no rationale for its "exceedingly complex process'' for dealing with FOIA requests.

"Simply put, defendant may not evade judicial scrutiny by failing to publish its labyrinthine process for reviewing FOIA requests,'' he wrote.

Citizen Action, formed over concern about possible contamination from Sandia's Cold War-era mixed waste landfill, sought Sandia's 10-year comprehensive site plans and records related to irradiated reactor fuels and other irradiated materials at the landfill.