By Raymond Bender
Foolishly believing that the Federal Aviation Administration (FAA) makes timely decisions, a friend and I filed a Freedom of Information Act (FOIA) request with the FAA on July 29, 2017. Why? To gather info to comment on the County of San Diego 2018 McClellan-Palomar Master Plan.
We asked for the records showing what the FAA knew about the County of San Diego opening three landfills on McClellan-Palomar Airport for a 14-yeard period in the 1960s and 1970s.
Why this request? Because the County of San Diego has received more than $30 million in FAA funds and agreed to FAA grant conditions. And the County now wants at least $70 million more to extend and relocate its Palomar runway 800-feet. One FAA grant condition says: Don’t use airport property for non-airport purposes.
We also asked for an FOIA fee waiver. The feds charge for records unless an FOIA fee exemption applies. Two exemptions should apply. Reporters with a demonstrated history of informing the public of community issues qualify for an exemption. FOIA fee waivers also apply when records are requested that further a significant public interest.
One week after our request, the FAA West Coast FOIA office denied it. On August 3, 2017, we filed our appeal with the FAA in Washington, D.C. As of March 9, 2018, the FAA official position is: We’re still reviewing the issues.
FOIA Fee Waiver Exemption 1: The News Media Representative Exemption
Look, we get it. Not every blogger is an FOIA-exempt reporter. The FAA does not want to open the floodgates and provide free records to 10 million bloggers.
On the other hand, as Perry Mason might say, FOIA does not say that only reporters from large black and white print newspapers and magazines, who are paid for their work, should receive fee waivers. Congress could have said that. Congress did not say that. The issue simply is: Does a writer (a non-technical term) have the demonstrated ability to gather information, analyze it in a way helpful to the public, and regularly distribute it to the community that has an interest in an issue?
What evidence did we provide to support the fee waiver request? One of us over the last four years has written 200+ articles dealing with McClellan-Palomar Airport and the FAA’s regulation of it. The articles are posted in the Bulletin Board section of Carlsbadpatch.com, a regularly published daily electronic newspaper. The publication is NOT just a personal blog. McClellan-Palomar Airport lies wholly within the City of Carlsbad, a city of 112,000 people. The San Diego Free Press has also published five of his Palomar and FAA related articles.
The other FOIA requester has maintained for nearly two years at his expense the website savecarlsbad.com which has been accessed more than 4800 times. The website regularly reports on the county’s McClellan-Palomar Airport expansion.
The FAA sense of irony is quite wonderful. If the FAA tomorrow publishes a tiny newspaper notice or files a notice of preparing a National Environmental Policy Act (NEPA) document for an airport project in the obscure Federal Register, the FAA happily says it has fairly and fully informed the public of a matter of significant interest.
FOIA Fee Waiver Exemption 2: Matters of Significant Public Interest to the “Public at Large”
But forget the reporter exemption for now. FOIA says you still get a fee waiver if you gather, analyze, and distribute information of significant public interest to the “public at large”. How does the FAA define “public at large”? To the FAA, the term means that a whole bunch of people must care about an issue.
As noted below, many people who might use Palomar Airport do care about Palomar expansion. But the FAA test is the wrong test. If Ebola crosses the ocean tomorrow and potentially endangers thousands of people, the issue is of significant public interest to the “public at large”. It does not matter whether 100 people or 10,000 people read about the danger. The same number of people will die if the Ebola spreads. And it won’t be pretty.
FAA Good Faith?
If you make pasta with marinara or white sauce 50 times, you should be pretty good at it. If you’re the Washington D.C. FOIA appellate section, you handle FOIA appeals from all 50 states. If the relatively inexperienced non-lawyers in the FAA branch offices can summarily reject fee waiver requests in 7 calendar days, why in the world does it take 218 days and counting for the Washington experts to answer the two simple questions posed above?
By rejecting our fee waiver request, the local FAA is presumably saying:
- The public does not care if the county of San Diego dumped 1 million cubic yards of trash over a 14-year period within 1200 feet of an active runway thereby creating a risk of bird strikes to aircraft landing and taking off. Ask Sully Miller of “landing on the Hudson River fame” about bird strike dangers.
- The public does not care that county built the now closed 3 Palomar landfills with no bottom liner and the constantly deteriorating trash creates garbage juice that can drain to clean soils at the landfill liner less bottom.
- The public does not care that the county 19 acre Palomar Unit 3 landfill had an underground fire in the mid 2000s burning for more than six months, which likely converted some household plastics, batteries, and remodeling materials into hazardous waste.
- The public does not care that county, with a 2009 FAA $8.6 million grant could dig up an rehabilitate its existing 4900 feet of runway, but that county now wants $70 million more to move the runway 120 feet and lengthen it by 800 feet. Why so much? Because, by using the Palomar Airport canyons to dump trash and ignoring the FAA grant restrictions, county created unstable soils. As a result, an 800-foot runway extension costs more than 10 times the usual rate due to the need to sink several hundred very deep pilings through the trash into stable soils underneath.
- The public does not care that Congress in 2010 adopted the Improper Payments Elimination and Recovery Act and instructed the Department of Transportation Inspector General to examine FAA (and other federal agency) grants to see if the FAA was properly justifying them.
- The public does not care if they are passengers on a commuter aircraft using Palomar and the aircraft overshoots the runway or crashes into the oddly named “Runway Safety Area (RSA),” a former landfill with an extensive network of plastic methane gas collection piping just 3 feet to 7 fee below the clay RSA surface that must absorb the impact of an up to 90,000 pound aircraft traveling up to 141 knots and loaded with up to 4,000 gallons of highly volatile aviation fuel.
No matters of significant public interest to the “public at large”?
Sometimes federal government positions are truly embarrassing and defy common sense.
Ray Bender, San Marcos resident; retired City Attorney; J.D. UCLA; MBA UCLA Anderson School of Business. For a complete list of articles he has written on this topic, click here.