Back in October, the NRDC filed a Freedom of Information Act (FOIA) request with the Federal Maritime Commission related to the agency's review of the Ports of Los Angeles and Long Beach's Clean Trucks Programs.  Specifically, NRDC was interested in what spurred on the rabid attacks and scrutiny on these ports, and wanted to disseminate this information to the broader public to provide some information about why the Maritime Commission acted the way it did.  NRDC has a long history of obtaining and disseminating important documents from government agencies, including obtaining documents from the Dick Cheney Energy Task Force.   Primarily an agency concerned with shipping, it was unclear to us what external influences and other factors brought on the Maritime Commission's desire to put these ports' efforts to clean the air under a microscope.

Over the last year, the Commission filed a lawsuit against the ports, initiated an administrative investigation, and used procedural hurdles to delay collection of a dirty truck fee that was designed to raise money for cleaner trucks and spur deployment of cleaner, more efficient trucks in the harbor area of Los Angeles and Long Beach.  All these decisions were made in closed session without review from the public.  Before we submitted the request and even now, we continue to receive questions about the Maritime Commission and its efforts to dismantle the clean truck programs.  Despite claims by the Maritime Commission, it has been less than forthright in providing explanation for why it got involved in challenging the ports' clean-up efforts.   

Almost seven months after filing the FOIA request, the agency has put us in a position where we are forced to file a lawsuit to receive the information we requested. Public Citizen, an organization that promotes Health, Safety and Democracy, is working with us on this case.  The Maritime Commission continues to clench onto these documents despite many affirmations by the highest court in the land about the importance of FOIA.  The Supreme Court has said that FOIA was designed to protect citizens' "right to be informed about what their Government is up to." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (internal quotations omitted). "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." Nat'l Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).  

NRDC also asked for a fee waiver for these documents because of their importance to explain the Maritime Commission's unprecedented actions. Under FOIA, requesters are entitled to a waiver of fees if the disclosure of the information is in the public interest and not in the commercial interest of the requester.  The documents NRDC requested are most certainly in the public interest because they deal with two of the most critical programs to clean up air pollution near the nation's two largest ports.  In denying the request, the Commission put up blinders as to the importance of these programs and claimed there was no additional public interest in receiving the plethora of information they are not releasing.  Also, the Commission denied our fee waiver request by creating a commercial interest out of thin air.  Despite the fact that as a nonprofit, we have no commercial interest in the requested documents, the Commission claimed that since the documents might end up in the hands of people who may have a commercial interest, then we are not entitled to the fee waiver.  Once the documents are made public, we cannot guarantee that they will not end up in the hands of people who may have a commercial interest.  FOIA allows people to disseminate information broadly, and in fact, it encourages this.  The Maritime Commission's approach would throw FOIA on its head by effectively precluding fee waivers for any public interest pursuit that may end up in the hands of somebody with a commercial interest.  

At the end of the day, the Commission needs to remember the "Freedom" in the Freedom of Information Act.  It is not called the OGDPDA -- "Opaque Government Don't Provide Documents Act." Hopefully, the Commission will see the light.  It may take an order from a judge though.