PHOENIX, Ariz. (CN) – The U.S. Department of Agriculture is knowingly hiding some radio traffic recordings from the 2013 Yarnell Hill Fire near Prescott, Arizona, instead telling a firefighter who sued to get the recordings that they were turned over to state investigators and made public shortly after the fire, the firefighter’s attorney told a Ninth Circuit panel Friday.
But whether those recordings are already public or whether the state has them doesn’t matter, attorney David Richard Schwartz told the three-judge panel, because emails and other evidence suggest the agency has the recordings plaintiff Fred J. Schoeffler requested.
If USDA has the recordings, they must turn them over despite a federal judge ruling in the government’s favor because Schoeffler had not exhausted all administrative appeals, Schwartz said.
“There is no question they have these,” Schwartz said. “It may be a copy. Whatever they have, we want it.”
USDA attorney Bill C. Solomon argued the agency doesn’t have the recordings because they didn’t give copies to state investigators – they turned over a hard drive containing originals.
“It wasn’t copies of it. It wasn’t discs containing the information. It was the hard drive,” Solomon said.
The 2017 lawsuit stems from the Yarnell Hill Fire, which burned through the hills surrounding rural Yarnell in late June 2013. Nineteen firefighters died in the blaze when their position was overrun by flames. One member of the crew, a radio operator who was positioned above his crewmates to relay messages, survived.
Schoeffler requested all recordings and transcripts of radio transmissions during the fire. The USDA responded – three days after the 20-day deadline for a timely response – that all records had been turned over to state investigators and posted online.
Schoeffler sued, claiming the records search was inadequate, and in March 2018 U.S. District Judge G. Murray Snow ruled Schoeffler had not exhausted administrative appeals. Schoeffler took the case to the Ninth Circuit.
Schwartz pointed to emails showing that in August 2013, a month after USDA said it gave the recordings to the state, the agency told NBC News it had recordings. Another email shows that in January 2014 the USDA sent recordings to a lab for analysis.
The government has produced the report from the lab, including a partial transcript, but not the recordings or full transcripts, Schwartz said.
“There is no FOIA exemption that says, ‘Oh, we gave it to somebody else, and they made it publicly available. We don’t have to produce what we have,’” Schwartz argued. “That doesn’t exist. It’s only the lower court and the USDA who have tried to create such an exemption. Congress didn’t do so.”
U.S. Circuit Judge Andrew Hurwitz, a Barack Obama appointee, pointed out that the lower court did not rule on whether the FOIA search was adequate, but rather ruling that Schoeffler had not exhausted administrative appeals before bringing the case to court.
Solomon agreed, adding that the question underlying the case is not whether records remain in USDA possession.
“The issue in this case is not whether there might exist some other records possibly responsive to the appellant’s FOIA request. The issue is whether the search for those records was adequate,” Solomon told the panel.
It was, he said, citing Ninth Circuit rulings in other cases that failure to produce “a few isolated records” doesn’t in itself make the search inadequate, that although a document may have once existed it might not still exist, and that just because an agency created a document doesn’t mean it still has it.
Schwartz argued Snow’s ruling should be vacated and the case remanded for trial.
The Ninth Circuit panel, which heard the case at Arizona State University, also included U.S. Circuit Judge Eric Miller, appointed by Donald Trump, and Bill Clinton appointee U.S. Circuit Judge A. Wallace Tashima.