FOIA Advisor

Q&A: Milling about for settlement records

Q&A (2017)Ryan MulveyComment

Q.  The U.S. Forest Service (USFS) traded a parcel of land with me that I believe the agency knew to be contaminated. The land in question is an old mill site in Montana.  USFS never disclosed that the site was contaminated. Interestingly, USFS and the Environmental Protection Agency (EPA) settled with Unocal/Chevron to pay clean up costs for other contaminated mill sites in the same area.  Is there a way to request information about those settlement discussions so that I can use the same material to try and get a clean-up deal for my land?

A.  Records concerning settlement discussions would likely be exempt from disclosure on a number of grounds.  First, while there isn't a settled consensus as to its application in the FOIA context, some courts have recognized a "settlement negotiations" privilege that could conceivably be used by an agency in conjunction with Exemption 5. Internal agency communications and related records about settlement could also independently qualify for withholding under the deliberative process or attorney work-product privileges.  Finally, these records could be protected under Exemption 4 as containing privileged or confidential commercial or financial information belonging to Unocal/Chevron.

All that being said, you may still want to try filing a FOIA request.  USFS has instructions available online, as does the EPA.