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Your Right to Know about Environmental Problems in Your Neighborhood: Using the Freedom of Information Act

Thumbnail image for FOIA-20rotator.jpgGovernment Often Keeps Us in the Dark

Is your government protecting you? If your air or water is contaminated, and your government knows it, it'll tell you, right?

Sadly, the answer to these questions is often, "no".

I've represented thousands of families over the last 18 years who have discovered not only that their air, water or soil is contaminated with a toxic chemical, but also that their government knew about the problem long before they did, but didn't tell them. Sometimes, the people most threatened by the contamination find out years, or even decades, after their government does.

It's a very difficult day for people when they realize this. They feel sad, angry, even betrayed. They had lived their lives with a very simple and understandable confidence: "I pay taxes to my government to protect me. It has environmental experts looking out for me. If they see a problem that might hurt my family, they will tell me about it." But their confidence was misplaced.

How does government find out about environmental problems, when its' citizens don't? Some possibilities from my experience:

·The polluter asks government for assurance-that would be provided to potential buyers of the polluter's property-that there is no off-site environmental risk posed by the property. These are called "No Further Remediation" letters, meaning, "To Whom It May Concern" letters assuring that any contamination on the polluter's is not going to spread to a neighboring property. The polluter seeking such a letter will usually confess to some contamination found on its property, but often will provide the report of an environmental consultant promising that the contamination will not migrate past the polluter's property boundaries.

·The polluter has some legal obligation to report chemical contamination, along with a plan for cleaning it up.

Why Doesn't Government Tell Us if We're in Danger

There are several possible reasons why government does not tell its citizens what it knows about environmental problems:

·Ignorance: sometimes government representatives do not have the expertise to appreciate, for example, that if a factory's groundwater is contaminated with a toxic chemical, that contamination may have travelled to groundwater off-site, where people live and work.

·Underestimating the problem: this one happens a lot. Government believes (or wants to believe) that an environmental problem really isn't that big of a deal, or will resolve without anyone's health or property being threatened. In my experience, more than half the time, government is wrong.

·Not wanting to "spread panic": government sometimes takes the paternalistic view that, if it starts telling its citizens that there might be an environmental problem, then the citizens will panic. But government has no business using this concern as an excuse to keep important information secret from the people. It should provide the information, and let people begin to explore their options for learning more, and how to protect themselves. That's their right.

·Politics: I've seen situations where a city or town keeps contamination secret, in an effort to protect the polluter, who is a big taxpayer or employer. Of course, protecting polluters is not government's job, and it's a disgrace, and probably illegal, when government does this.

How can We Know What our Government Knows?

So, if you are concerned that your government knows something about an environmental problem but is not telling you, what can you do?

Ask.....but in a way that your government cannot legally ignore.

At both the state and federal government levels, there is a "Freedom of Information Act" (FOIA). It's a very powerful law that entitles citizens to receive copies of government documents, if only the citizens asks, and identifies the documents with enough specificity so that government can find the documents and provide copies to the requesting party. With the federal government, you can go to www.foia.gov, and click on "How to Make a FOIA Request", for specific information about how to do this. Various federal agencies-like the Environmental Protection Agency-have their own websites and ways of complying with their obligations under FOIA. Check out www.epa.gov/foia. Also, your state and local governments have obligations under FOIA laws. Click on this link for information http://www.nfoic.org/state-freedom-of-information-laws. State environmental protection agencies are sometimes known as "Departments of Environmental Quality" (DEQ), "Departments of Natural Resources" (DNR), or, simply EPAs. Go on their websites, or the website of your city or town, and learn who you should ask for documents about environmental problems. Many of them will have an employee called a "FOIA Officer" or "FOIA Compliance Officer". That's the person to whom you want to make your request.

For most states, municipalities and other government agencies, you are entitled to receive the documents you request within 7-10 days of requesting for them. There are some exceptions-for example, if you've asked for a lot of documents, and government cannot comply with your request within 7-10 days. Then, government will tell you it needs more time, and the FOIA laws typically say that is OK. But only for an extra week or two. Not 6 months.

Also, most FOIA laws allow the government maintaining the records to charge you something reasonable for copies, or, if there are a lot of documents that respond to your request, to let you come in and review the documents yourself, and then select which ones you may wish to have copied.

What Documents Should you Request Under FOIA?

There are no magic words to use when requesting documents under a FOIA law, and, although you can always ask a lawyer for help in drafting requests, the point of the FOIA laws is that citizens without legal or other technical training can avail themselves of the laws.

When I use FOIA to request documents about environmental problems, I usually describe the documents I want with words like:

  • "All documents that show when [government] first learned of the possibility of chemical contamination in or near [specific location]".
  • "All documents that refer to any chemical contamination on the property of [the plant or factory or neighborhood or home or other location in question]"
  • "All results of testing for chemical contamination in groundwater or soil in [specifically define the geographic area in which you are interested]."
  • "All documents that discuss whether the homeowners and residents of [specifically define the specific geographic area] should be told of the possible presence of chemical contamination."
  • "All documents that show that [the polluter] has asked [state, city of other government agency] for the right to test for chemical contamination in [specific geographic location]."
  • "Any letters or reports or emails you have sent to, or received from, [the polluter], which discuss actual or possible chemical contamination in the [specific location]"
  • "All documents that describe any steps being taken to protect the people of [specific location] against the dangers of the chemical contamination in [specific location], including documents which describe any effort to clean up the contamination.
  • "All documents which discuss the potential dangers of any chemical contamination in [specific location]."

You get the idea. Keep it simple. Have fewer, rather than more, categories of documents that you are requesting. I usually suggest 10 or fewer. A short list of simply-stated requests makes you look reasonable, and makes it hard for government to invent an excuse to not give you the documents you want, in the event that government doesn't want you to see them.

If government refuses to give you the requested documents, check the FOIA law you are invoking to see if there is a cost-free appeal process. For example, in Illinois, you can appeal to the State's Attorney General, if someone in government refuses to give you documents that you have requested under FOIA.

Keep in mind: if government refuses to turn the documents over to you-and that doesn't happen very much-it could well be a sign that there is actually an environmental problem that you should know about. So, pursue the appeal process, or consult with a lawyer about whether it makes sense to take the government to court to get the documents.

They may be very important.

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