Even Public Comments Are Hidden Behind DOJ’s Veil of Secrecy

Justice Department keeps moving goal posts on basic records in controversial Superfund case

Protect the Public’s Trust (PPT) has filed a lawsuit against the Department of Justice (DOJ) to force the agency to provide a small number of publicly submitted documents as required by the Freedom of Information Act (FOIA). The records pertain to a proposed consent decree allocating a small portion of the cleanup costs for the Diamond Alkali Superfund Site on the Lower Passaic River in New Jersey.

The decree, filed by DOJ in December 2022, requires 85 Settling Defendants to pay $150 million in cleanup costs – more than $1.6 billion less than the Environmental Protection Agency’s (EPA) estimate of $1.82 billion. The controversial settlement became more concerning in April 2023, when PPT filed an ethics complaint over the role of a former EPA employee at the center of the nine-figure allocation process. The former employee, David Batson, appears to have improperly participated in the process that seems likely to decide the financial responsibility for several specific parties whom he directly affected while working at EPA years prior. While the breakdown of liability between the 85 parties has yet to be released publicly, clues may lie in the public comments being withheld by DOJ. Once released, the comments are almost certain to trigger additional questions of Mr. Batson’s relationship to the parties he once engaged with while a federal official.

As PPT has sought to unravel the complex and ethically questionable role that Mr. Batson played in last year’s proposed consent decree, it has submitted numerous FOIA requests including asking for the public comments received by the DOJ on this consent decree. Agencies routinely release public comments received on such matters proactively, without requesters having to resort to FOIA. Unfortunately, the simplicity of PPT’s request has had little effect on DOJ’s willingness to produce the public documents.  The Department has dragged out the process, redirected the request within the agency, dubiously claimed that some documents might be exempted, and ignored PPT’s request to receive documents as they became available. Finally, on August 4, the Department again pushed out the timeline with a “best estimate” of “about 30 [more] days.”

“As the head of DOJ, Attorney General Garland called FOIA ‘a vital tool for ensuring transparency, accessibility, and accountability in government’ and a ‘needed to check against corruption and to hold the governors accountable to the governed,’” said PPT Director Michael Chamberlain. “Yet his very own agency, the one tasked with enforcing the laws of the United States, is obfuscating, delaying, and failing in its lawful duty on even the simplest and most straightforward request. Given the ethics concerns surrounding the key player involved in the underlying Superfund matter, DOJ’s constantly shifting goalposts should make citizens wonder what it might be trying to conceal.”

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