Nearly a year ago, on Dec. 4, 2017, Voice of San Diego submitted a Freedom of Information Act request to the U.S. Army Corps of Engineers for e-mails, reports, memos, plans and more related to any border infrastructure being proposed in San Diego or Imperial counties.
The agency has not responded.
Now, Voice of San Diego is asking a federal court to intervene.
Here in San Diego, the border is part of our community. San Ysidro, where the San Ysidro Port of Entry is located, has long struggled with air pollution related to the idling cars waiting to cross the border.
Imperial Beach has dealt for years with sewage from Tijuana washing onto its beaches.
During the construction of previous portions of border fencing in San Diego County more than a decade ago, there were numerous indications that it would have adverse impacts on the community, particularly the environment.
In a 2004 report, the California Coastal Commission laid out some of those concerns after a back-and-forth with U.S. Customs and Border Protection about the project. For example, certain areas where the infrastructure was proposed threatened “to weaken the overall credibility and effectiveness of the entire [Multiple Species Conservation Program], as these lands were carefully and scientifically evaluated to provide regional ecological benefits to meet regional preservation goals and to mitigate the cumulative impacts of other development in the region.”
Local environmental advocates went to court to challenge the project, which laid out the ecosystems along San Diego’s border that would be impacted, including the Tijuana estuary, which is one of California’s last wetlands.
In August 2017, the federal government issued a waiver saying it didn’t need to comply with state or federal environmental laws in order to construct a new barrier along the border. In San Diego, a project to replace miles of scrap metal fencing with a bollard-style barrier began in June.
Voice of San Diego is seeking information that sheds light on the potentially damaging impacts of the new border infrastructure to communities along the border.
As our complaint lays out, the Freedom of Information Act “focuses on the citizens’ right to be informed about ‘what their government is up to,’” by requiring the release of official information “that sheds light on an agency’s performance of its statutory duties.”
“Through its FOIA Request, VOSD seeks to fulfill its journalistic function and to shine a public light on the operations of the Army. San Diego and Imperial County, which are located on the U.S.-Mexico border, will be directly impacted by any infrastructure built along the border,” the complaint says.
In April, counsel for the Army Corps indicated that the request would be fulfilled by June 29, 2018. That date came and went.
The Army Corps then advised Voice of San Diego in August that it “need[ed] an extension of time to process the request,” and that the Army “estimat[ed] another six (6) months to coordinate, review and provide you with a response to your request which would mean that you can expect a response to this request around March 6, 2019.”
In September, we sent a letter appealing the extension, to which the agency has still not responded. Thus, we’ve exhausted our administrative alternatives.
We believe this is an excessive delay in responding to our request.
The Army Corps has a legal duty under FOIA to determine whether to comply with a request within 20 days after receiving the request and notify the requester accordingly.
More than 11 months have elapsed since VOSD put in the initial request, and nearly 45 days have elapsed since the appeal. The agency has failed to comply with this provision of FOIA.
We sent nearly identical requests to other federal agencies involved in the planning and construction of the border infrastructure. The U.S. International Boundary and Water Commission, for example, fulfilled the request on Feb. 26.
“VOSD has a legal right under FOIA to obtain the agency records they sought in their Request, and there exists no legal basis for the Army’s failure to make these records available,” reads our complaint against the agency. “The Army’s failure to make promptly available the records sought by the Request violates FOIA.”
The government has 60 days to respond once served with the lawsuit.