Judge dismisses Navy bid to control Kitsap County records

Judge dismisses Navy bid to control Kitsap County records: But Navy may still seek order for County to return certain training records

Contact: Glen Milner (206) 365-7865
Katherine George, attorney (425) 802-1052

April 4, 2016 – Citizens may still request public records from Kitsap County without the federal government taking control. In a recent ruling, U.S. District Court Judge Ronald Leighton dismissed claims by federal agencies that the Department of Defense should control Kitsap County’s handling of records requests whenever they might involve sensitive military information. Judge Leighton also dismissed claims that Kitsap County should be permanently blocked from releasing certain parts of emergency planning records which the Navy considered sensitive.

Kitsap Sun reporter Ed Friedrich and peace activist Glen Milner had requested Kitsap County’s emergency planning records to find out how well the region is prepared for emergencies, and withdrew the requests after receiving what they wanted. Judge Leighton ruled that, because those requests were withdrawn and nobody was requesting the parts of the planning records that concerned the Navy, most of the claims in the case were moot.

However, federal agencies may continue seeking an order for Kitsap County to return certain records which the federal agencies allegedly “own.” Federal agencies had previously provided the records to Kitsap County and the state Patrol for use in emergency management training exercises.

The unusual case has highlighted tensions between Kitsap County, which is subject to monetary penalties if it violates the state Public Records Act (PRA), and federal agencies wanting to control the County’s PRA responses even though all of the liability risk falls on the County. “The dismissal order stops the federal government from creating a large black hole where local records could be concealed, and protects Kitsap County taxpayers from paying the price for improper withholding of local records,” said Mr. Milner, a longtime transparency advocate who won a 2011 U.S. Supreme Court decision, Milner v. Navy, striking down the long-established “High 2” exemption to the federal Freedom of Information Act.watch full xXx: Return of Xander Cage 2017 movie

Click here to read  the March 31, 2016 order in U.S. v. Kitsap County.

More on this case at The Seattle Times: Judge won’t permanently block release of Navy nuclear data in Kitsap County, By Hal Bernton, Seattle Times Staff Reporter, April 5, 2016. If are not able to view the article at seattletimes.com, click here to read it as a PDF.

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No End to the Government’s Quest for Secrecy

Editor’s Note: The United States Government continues to erect huge walls of secrecy (in the name National Security and its endless war on terror), preventing the public from (among other things) exercising our right to know about issues that affect our health and safety.

Glen Milner has been a constant advocate for our right to know, and won a significant victory in the US Supreme Court in 2011 – Milner v. Department of the Navy. Milner had requested (through FOIA) explosives data and maps to determine the risk to neighbors of a Navy munitions storage depot in case of an accident involving explosives handling. The Navy refused to supply the requested information stating that disclosure would threaten the security of the base and (ironically) the surrounding community based on one of the nine exemptions allowed by FOIA. In an 8 to 1 decision, after much legal wrangling in the circuit courts, the Supreme Court ruled that the information requested could not be withheld based on the Navy’s claim of exemption.

This article from Steven Aftergood’s Secrecy Blog is a reminder that if the Department of Defense (DoD) does not like a decision (in this case by the Supreme Court), it will go to any lengths to render it null and void. Beyond that, the Department of Justice is providing the lead for a broad exemption for the DoD as is being experienced in Kitsap County. The Navy, through the U.S. Attorney’s office, recently threatened to criminally charge Kitsap County attorneys/prosecutors if they release information regarding emergency response plans for Naval Base Kitsap-Bangor.




From the Federation of American Scientists (FAS) Project on Government Secrecy
Volume 2016, Issue No. 2
January 6, 2016
Secrecy News Blog: http://fas.org/blogs/secrecy

The Department of Defense proposed a new exemption from the Freedom of Information Act last year for information on unclassified “military tactics, techniques and procedures.” The measure was not adopted by Congress in the FY 2016 defense authorization act, but DoD is preparing to pursue it again this year.

The proposal that was submitted to Congress last year would have exempted from disclosure military doctrine that “could reasonably be expected to risk impairment of the effective operation of the armed forces” and that had not already been publicly disclosed.

“The effectiveness of any United States military operation is dependent upon the enemy not having knowledge of how U.S. military forces will be used,” DoD stated in its justification for the exemption. “Commanders need to have all advantages at their disposal to be successful on the battlefield; if the enemy has knowledge of the tactics, techniques, or procedures that will be used, a crucial advantage is lost and success of the operation and the lives of U.S. military forces are seriously jeopardized.”

DoD claimed that it would have been able to exercise this withholding authority until 2011, when a Supreme Court ruling in the case Milner v. Department of the Navy “significantly narrowed” the scope of FOIA Exemption 2. “This proposal would reinstate that protection to ensure effective operation of U.S. military forces and to save lives.”Watch Full Movie Online Streaming Online and Download

The first thing to say about the proposed DoD FOIA exemption is that, given the realities of government information security today, any prudent military commander would have to assume that the adversary already possesses the unclassified military doctrine documents that the exemption would protect from public disclosure. The government has repeatedly been unable to protect many types of information of much higher sensitivity.

If that were not the case, the proposed DoD exemption would make sense up to a point. But it stops making sense where DoD “tactics, techniques and procedures” are themselves the focus of appropriate public attention. For example, U.S. techniques for the interrogation of detained persons have been the subject of intense public controversy as to whether they are illegal or inhumane. Likewise, offensive cyber operations involve important public policy questions that go beyond the tactical interests of the military. The DoD proposal does not appear to make allowance for mandatory FOIA disclosure in such compelling cases.

In another even more ambitious proposed FOIA amendment, DoD last year sought to nullify the 2011 Supreme Court decision in Milner altogether, and to reinstate the pre-Milner status quo with its more expansive withholding authority.

“The effect of the decision in Milner is that it exposes for public release certain critical information previously interpreted as being exempt from disclosure under the ‘High 2’ exemption,” the DoD proposal explained. “The Administration believes that, following the Supreme Court’s decision, there is a critical gap in the exemptions in the current FOIA statute. This proposal is designed to close that critical gap.”

Both DoD FOIA proposals — the specific exemption for unclassified tactics, techniques and procedures, and the broad nullification of the Milner decision — were excluded by Congress from the FY 2016 defense authorization act “due to jurisdictional concerns and process issues (but not content issues),” according to an internal DoD planning document.

But both are expected to be presented again this year. DoD will advance its proposed FOIA exemption for military doctrine, while the proposed Milner amendment, with its government-wide implications, has been transferred to the Department of Justice for separate submission to Congress.

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When Public Safety and “National Security” Clash

Editor’s Note: The following article published in the Kitsap Sun on October 24th highlights the continuing struggle to guarantee the public’s right to know of potential hazards to our communities, our homes and our families. The government (and in this case the Navy) regularly overreaches in invoking “national security” in withholding records that affect the safety and health of citizens living around government facilities – in this case the naval base with the largest operational concentration of nuclear weapons in the US arsenal, Naval Base Kitsap-Bangor. Glen Milner, who is at the forefront of Ground Zero’s lawsuit challenging the Navy’s grossly deficient Environmental Impact Statement for the second explosives handling wharf at Bangor, is cited in this article.


Feds, county diverge on Bangor records

By Ed Friedrich, Kitsap Sun, Oct 24, 2015

A request for information about Naval Base Kitsap-Bangor emergency plans has spotlighted conflicts between state and federal disclosure laws.

In January, Glen Milner asked Kitsap County Emergency Management for records regarding potential consequences of a radiological accident at the submarine base and planned responses to them.

Because some of the documents were marked for official use only, the county notified the Navy in case it wanted to seek a court order to keep them from being released.

In June the U.S. attorney’s office in Seattle, representing the Navy, threatened to sue deputy prosecuting attorneys Alexis Foster and Shelley Kneip, Foster said. The Navy contends some of the documents have national security implications and should be protected.

“We’ve been informed should we release the records without their authority, permission or approval or as they requested them to be withheld or redacted, we are subject to criminal and civil prosecution,” Foster said.

Milner, a Seattle peace activist associated with Poulsbo’s Ground Zero Center for Nonviolent Action, said the public should know how to react in an emergency. Pantex, the country’s only nuclear weapons assembly and disassembly facility, for example, openly shares its emergency information on its website. It describes three levels of emergencies and what to do in each, where to listen for information, how to shelter in place, how to evacuate and where to go.

The Bangor “response plans are in place, and nobody knows anything about them, so they don’t really do anybody any good,” Milner said. “They’ve gone to the trouble of creating the plans, but they don’t want to tell anybody about them.”

Unlike Pantex, the Navy doesn’t confirm or deny there are nuclear weapons at Bangor, or anywhere else. It can’t distribute a radiological accident plan because that might imply the presence of nuclear weapons. It acknowledges, however, that the 11 submarines based there are nuclear-powered and that eight of them are each capable of carrying up to 24 ballistic missiles with multiple warheads.

The county and U.S. attorney’s office continue to release information to Milner as it’s processed, though their relationship is chafed by different disclosure laws — the Washington Public Records Act and the federal Freedom of Information Act.


Because the emergency response plans were created by the county and are held by the county, state law applies. Normally the county would process Milner’s request and if the feds disagreed, they could seek an injunction. Instead, the feds are making redactions and withholding records based on federal law. The county then reviews the actions to ensure they conform to state law.

“That’s a particular concern of ours and why we have to conduct a review, to ensure if (the redactions are) appropriate and permissible under state law,” Foster said.

The U.S. attorney’s office is working with Kitsap County to provide Milner “with those appropriate nonsensitive documents which the United States has consented to release,” spokeswoman Emily Langlie said.

Michele Earl-Hubbard, an expert in public records with Allied Law Group, said Milner’s request is clearly a county responsibility and covered by state law. The U.S. attorney’s office should stay out of it unless it wants to file for an injunction. Milner’s request hasn’t transpired that way, however, and at this point, for timeliness, records should go straight to him without county review, which can be performed later.

“The local agency has to provide the ‘fullest assistance’ and ‘most timely response,’ and they’re not giving that when they sit on a request for nine months,” she said.

The federal government is “almost always” overreaching when it claims records are exempt based on national security, she said.

“The reality is, almost every piece of public information has value to a terrorist. It also has value to everybody else,” she said, including an emergency plan.

“People need to know where to evacuate, not just the bureaucrats,” she said.

Milner requested similar documents from the state Department of Health, which has a radiological department. The Navy and Federal Emergency Management Agency were notified. The Health Department gave them until Oct. 30 to file for an injunction. So far, they haven’t, Milner said.

Source URL: http://www.kitsapsun.com/news/local-news/feds-county-diverge-on-bangor-records_10061951 

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