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N.M. judge agrees report on Sandia landfill is public record

By The Associated Press
10.09.08

ALBUQUERQUE, N.M. — A state district judge has ruled that a report concerning groundwater monitoring at Sandia National Laboratories' mixed-waste landfill is public record.

The state Environment Department had sued Albuquerque-based advocacy group Citizen Action last fall to keep the report secret. The department cited executive privilege in preventing the disclosure of the 2006 report by TechLaw, a consulting company.

Citizen Action countersued and accused the agency of violating open-meetings and open-records laws.

Judge Daniel Sanchez, in a decision filed Oct. 7, said the report did not constitute "thought processes" and was a public document under the Right to Inspect Public Records Act. He also ruled that nondisclosure of the report wasn't justified by countervailing public policies or executive privilege.

Dave McCoy, Citizen Action’s director, said yesterday that the judge's decision upheld the public's right to obtain information to monitor "the honesty of decision-making" to protect public health and the environment.

The state Environment Department “and other agencies should stop using these retaliatory lawsuits to hide information and waste taxpayers' money," McCoy said.

McCoy said he didn't know when Citizen Action would be able to obtain the TechLaw report.

In light of the judge's decision, McCoy did say the group planned to amend its countersuit against the department to require the release of hundreds of other documents that he claims the department is keeping secret. Those documents, he said, relate to both Sandia and Los Alamos national laboratories.

Environment Secretary Ron Curry, in a statement released yesterday, said he was pleased that the court reiterated the importance of executive privilege as a constitutional basis for protecting certain documents. But he said the department disagreed with the court that the report was a public document.

"We continue to feel the Techlaw report is a deliberative document that was used appropriately, in a confidential context, in the department's decision making process," he said. "The public interest in protecting candid, frank deliberations within state government is not served by this decision."

The mixed-waste landfill has been the source of an ongoing dispute between Citizen Action and the Environment Department.

A state Court of Appeals ruling last December allowed the lab to cover up the dump with dirt rather than dig it up — affirming a decision by Curry in 2005 not to require excavation of the landfill.

Activists, including Citizen Action, want the mixed waste — radioactive and other hazardous materials — dug up and stored because of fears it would contaminate groundwater.

The Environment Department has found no groundwater contamination at the landfill and has said excavating it would be riskier than leaving it where it is.

As for its open-meetings claim, Citizen Action alleges that the department allowed construction to begin on the dirt cover at the landfill before final approval was given for a work plan. The group also claims that the public did not get a chance to review the plan.

Sanchez ruled in September that the group's open-meetings case could proceed to trial.


Related

Group wins fight over fees on Energy Department documents

Agency's Albuquerque office wrongly tried to charge Citizen Action $3,200 to find records on possible buried nuclear waste, hearing officer rules. 04.06.03

Citizens group prevails in FOIA fight with nuclear agency

Federal judge calls National Nuclear Security Administration's review process for records 'kafkaesque' and 'labyrinthine.' 04.03.08

If this is FOIA victory, what does defeat look like?
By Douglas Lee Despite federal judge's favorable ruling, citizen group still hasn't received some of the information it requested as long ago as 2004. 04.09.08

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