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Introduction by Eddie Becker (202)332-1000:

This Freedom of Information (FOIA) Appeal seeks to reconcile the official versus unofficial policies simultaneously at work. Reversing this Catch 22 has forced the Smithsonian to take some remedial actions to preserve the Holt House and clean up the dumpster site next to Walter Pierce Park.

The deadline for the Smithsonian to respond to this FOIA Appeal has past.

Significantly, the case law which established the Smithsonian as a Federal Agency is based upon legal actions brought by the Smithsonian Staff.

Text Of Appeal Letter

May 22, 1997

ATTENTION: THIS IS A FREEDOM OF INFORMATION APPEAL

Michael Heyman, Secretary
Smithsonian Institution
1000 Jefferson Dr., S.W.
Washington, D.C. 20560

Dear Michael Heyman:

This letter is an appeal under the Freedom of Information Act (FOIA) as amended. It appeals the decision to withhold records, created and maintained by National Zoological Park (NZP) and the Smithsonian Institution. These records were requested by me in two separate but related FOIA requests, March 26 (corrected March 28, 1997) [tab 1] and April 17, 1997. [tab 2]

1) The FOIA request dated March 26 (corrected March 28, 1997) [tab 1], asked for documents that contained information about any proposed or future "plans for the use of the Holt House or it's site. If there is no 'current plan, I requested the last most recent proposed plan."

In a letter dated April 23, 1997 [tab 5] records were denied. Exemption 5 of the FOIA was invoked. The denial letter explained that "inter-agency or intra-agency memos or letters were not included because the memos "...would not be available by law to a party ... in litigation with ... [the Smithsonian]"

In order to sustain this exemption, the Smithsonian official citing this exemption, will have to prove that these records were in fact prepared by the Smithsonian's attorney in anticipation of litigation, and that their disclosure would reveal the attorney's litigation strategy.

The FOIA does permit pre-litigation investigation equal in scope to discovery rights against an agency. (See 5 USC 552(b)(5) EPA v Mink (1973) 410 US 73, 87, 93, S Ct 827, 827, 835)

In the event of a denial, of any or all these records, I request that you provide me a specific account of all documents withheld, an index of all information withheld and the statutory citation to all exemptions on which denials are based.

I requested an additional 10 working days to file this appeal [tab 12]

2) My April 17th [tab 2] FOIA request grew from attempts to find information about NZP polices with respect to the dumpster site next to Walter Pierce Park and the historic Holt House. I was told to direct all my questions through Robert Hoage chief of public affairs at the National Zoo.

I faxed him a letter on April 8, 1997 [tab 3] requesting that he "direct this inquiry to the proper entity within the National Zoo, who can explain to me in writing what has been done to comply with the provisions of 36 CFR Part 800 Protection of Historic Properties particularly Sections 106 and Section 110. If it was determined that the Holt House does not fall under the protection of 36 CFR Part 800, I would appreciate knowing in writing who made that decision and why."

On April 17th 1997, in a telephone conversation, Mr. Hoage told me that he had consulted with knowledgeable people at NZP and read from his notes the answers to the above question as well as others previously raised with him in other conversations and a fax [April 9, 1997 tab 4].

Since Mr. Hoage was too busy to respond to my requests in writing, I requested under FOIA a copy of the record that he used to respond to my written request.

A denial of that request was received on May 2, 1997 [tab 6]. In it's denial, the Smithsonian states the information compiled by Mr. Hoage is not Smithsonian policy with respect to the Holt House since the Smithsonian policy is clearly stated in a number of formal official Smithsonian Policy Statements.

I will deal with the legitimacy of using this as an exemption under FOIA in Item 3 below. It does give me an opportunity to explore the policy issue raised pertaining to the Holt House and it's surroundings. And though it is superfluous to this FOIA appeal, it does go to the heart of the matter.

I have read through these policy directives and they do seem to provide protection for the Holt House and its surroundings.

Section 3. Of Smithsonian Directive (SD) 418 [tab 7] states that it is the Smithsonian's responsibility that its facilities "...requires a continuing program of repair, maintenance, renovation, and restoration." That the "(m)aintenance and preservation of these building and facilities is one of the Smithsonian's highest priorities." And that (in section 4.) Adherence to the nation-wide preservation procedures as established under Section 106 is incumbent upon all Smithsonian offices and bureaus."

Appendix 1 of SD 418 Lists the National Zoological Park, including landscape planning and building and the Holt House as Sites and building listed on the National Register of Historic Places.

The Holt House was placed in the National Register in 1973 [tab 8] . Both the House and the rusticity of the grounds surrounding the house were to be preserved.

A Guide to Historic Preservation at the Smithsonian Institution [tab 9], states that "A project is considered to have an adverse effect if it could diminish the integrity of a property's location, design, setting, materials workmanship, feeling or association,. Adverse effect on historic properties include, but are not limited to " "Neglect of a property resulting in its deterioration or destruction" and "introduction of visual, audible, or atmospheric elements that are out of character with the property or alter its setting."

To illustrate the impact these policies have had on the Holt House and it's surroundings, enclosed is a 1997 picture of the Holt House, compared with a picture taken in 1973 when the building was placed in the National Register of Historic Places. [Photo 1] See also Photo 2 showing brick failure cause by clogged gutters.

It is rather apparent that the building is in far worse condition than when it was listed in the National Register of Historic places. The Holt house did not benefit from Federal or Smithsonian policies.

A response closer to reality came pursuant to my FOIA of March 26 (corrected March 28) [tab 1 response see tab 5]. The NZP gathered together documents to justify it's neglect for the Holt House. It blamed the Congress of the United States. It cited a 1985 congressional report disallowing $400,000 for "Health and Research Facility." Some of those funds were supposed to be used to evaluate the Holt House. Up until that time, the Holt House had received "adequate maintenance and care." [Tab 10] Presumably that is to blame for not budgeting money to care and maintain the Holt House. That policy has not changed.

Though the Holt House was specifically mentioned in the SD 418 in 1993, no action was taken. Even if it takes time for the wheels of the bureaucracy to turn, Mildred M. Glover, Assistant General Counsel at the Smithsonian Institution wrote on April 23, 1997 [tab 5] that "I have been advised by the National Zoological Park that no records have been created over the last two years dealing with the maintenance and the preservation of the Holt House."

The document created by Mr. Hoage, after consultation with knowledgeable NZP staff is far closer to current policy, regarding the Holt House and other matters, than the "official policy" created by the Smithsonian. Without a doubt, the information contained in the documents sought are clearly the kind of information that the FOIA legislative intent hoped would be requested.

Furthermore, the NZP document that the Smithsonian has refused to release is still the policy of the NZP. As recently as May 12, 1997, [tab 11] Michael Robinson, Director of the Zoo wrote that contrary to what a staff member had said in a community meeting and to the press, there was no money requested for Holt House restoration and NZP does not want to "waste money on improbable solutions."

Based purely on the records of this case, it is apparent the unique status of the National Zoological Park and the Smithsonian Institution, makes it believe that it is exempt from Federal Law and has the discretionary authority to disregard it's own regulations.

3) Notwithstanding the opinion of the Smithsonian and the concurrence of the U.S. Department of Justice, the courts have determined that the Smithsonian Institution is a Federal Agency and subject to the Freedom of Information Act. (Cotton v Adams 798 F.supp 22 DDC 1992 and Dong v Smithsonian 943 F.supp 69 DDC 1996).

I appreciated the Smithsonian sending me a copy of the Policy regulations and I'm glad you have them, but they cannot be used as an exemption to the Freedom of Information Act. The Act states that "Any item containing information that is in the possession, custody, or control of an agency is usually considered to be an agency record under the FOIA." The form in which a record is maintained by an agency does not affect its availability. The records requested convey statements of policy and the rationale for official decisions and actions.

4) Since this information had been compiled at my request and partly transmitted to me over the phone, the Smithsonian has waived it's right to withhold the information, since most of the information has already been released to me.

I am willing to pursue judicial remedies under the Act, should you deny this appeal.

I expect a response within 20 working days, as the law provides.

Very truly yours,
Eddie Becker