by Pam Zubeck
The Air Force Academy recently entered into a settlement agreement with MRFF regarding FOIA and agreed to pay $25K in attorney's fees. Attorney's fees are not an uncommon expense for defendants in FOIA litigation, even when the parties settle without attributing fault or liability. This money is not paid directly by USAFA, but rather comes out of a general Air Force Litigation fund used in instances when the Air Force is sued.
The Academy respects the settlement agreement and intends to comply with it. We'd like to emphasize that each FOIA case is unique and USAFA makes every effort to process FOIA cases as promptly as possible.
FOIA requests are processed in the order that they are received. When MRFF made their request in 2011, USAFA was dealing with a large backlog of FOIA requests. USAFA was able to provide an initial response to MRFF in 2012, followed by a supplemental response in 2015 and another in 2016. The release to MRFF consisted of over 8,000 pages of documents, all of which had to be reviewed by numerous people page by page, making the review and production a time-consuming undertaking.
Late last week the Military Religious Freedom Foundation (MRFF) and the United States Air Force Academy (USAFA) reached an agreement to resolve a longstanding legal dispute over USAFA's handling of a Freedom of Information Act (FOIA) request submitted in 2011. The FOIA request sought records related to Mikey Weinstein, MRFF's Founder and President, the organization, and individual members of the Weinstein family. After four years of processing delays, MRFF filed a lawsuit in federal court in New Mexico to compel the Air Force Academy to finalize the FOIA response. The settlement calls for USAFA to conduct new searches for documents, broaden the time period of the searches, and pay MRFF's attorneys' fees.
Vincent Ward and Amber Fayerberg, attorneys in Albuquerque, New Mexico, represented MRFF in the litigation. In a joint statement released by Mr. Ward and Ms. Fayerberg, they stated: "This is a big victory for MRFF, for active, veteran and retired military members and civilians who support MRFF's cause, and for everyone who believes in the importance of government transparency and accountability. The Academy gave MRFF the run around for over four years, probably hoping it would go away. Not MRFF. We couldn't be more pleased with the outcome of the case. It is a true testament to MRFF's will and of course the determination of its founder, Mikey Weinstein."
- Pam Zubeck
- Mikey Weinstein: Wins settlement in FOIA case.
MRFF Founder and President, Mikey Weinstein praised the result stating,
"Today is a glorious day of victory for justice and liberty! MRFF effusively thanks its fantastic and tenacious litigators, Vincent Ward and Amber Fayerberg, for prevailing for MRFF in this long federal court legal battle against the Air Force Academy's intransigent and ignoble efforts to nefariously thwart public disclosure of thousands of pages of important internal documents. Tragically, the only thing that USAFA is even worse at than following federal disclosure requirements via FOIA is USAFA's universally deplorable record of miserably failing to adhere to the Constitutionally-mandated separation of church and state. Today's splendid MRFF legal victory is a landmark win in MRFF's continuing fight to rebuild and buttress the shattered church-state wall at USAFA, in the Air Force at large and throughout all of the Department of Defense."
The Weinsteins are a legacy family at USAFA, with six of the family members alumni of the Air Force Academy and one other a graduate of the Naval Academy. The Weinsteins are also, however, active supporters and participants of MRFF and regularly take the Academy to task over its espousal and promotion of fundamentalist Christian Evangelicalism. MRFF's history with the Academy has resulted in a vitriolic campaign against Mikey Weinstein, his family, and many MRFF supporters as well as the production of thousands of documents, found in the form of emails, memoranda, and directives. MRFF requested that USAFA provide those records as part of its continued effort to hold USAFA and other military agencies accountable for their practices.
However, when MRFF lawfully sought these records under the FOIA in 2011, USAFA ignored the request for nearly one year. After producing only a fraction of the documents generated by the request in 2012, the USAFA spent the next three years delaying and refusing to produce records in accordance with the federal transparency law. After four years of obfuscation, MRFF filed suit on November 5, 2015 to compel the agency to provide the responsive records. The suit alleged specific violations of the FOIA, which requires government entities to make most types of records available to the public upon request, as well as alleging that USAFA engaged in a pattern and practice of deliberately violating the law with regard to MRFF. After over one year of litigation, the USAFA has produced nearly 8,000 additional records to MRFF and has agreed to perform supplemental records searches for those years during which the USAFA unlawfully delayed in responding to MRFF's request. USAFA has also agreed to pay MRFF's lawyers, Vincent Ward and Amber Fayerberg, $25,000 in legal fees.
MRFF anticipates that USAFA's supplemental records searches will turn up thousands of additional and important documents. This result is a victory for MRFF, a victory for the Constitution and a victory for government transparency. MRFF will continue to insist that military agencies open their files to the public and will continue to shed light on USAFA's violations of the constitutional guarantee of freedom of religion and freedom from the establishment of a government religion.