by Andrew Walden

Is the US Department of Justice still ‘investigating’ the Maui Wildfires?  Are they engaged in ‘enforcement proceedings’? 

The US DoJ response to an Hawai’i Free Press FOIA request says so.

Civil Beat June 28, 2024 explained:

The federal Bureau of Alcohol, Tobacco, Firearms and Explosives has completed its origin and cause report on the wildfires that destroyed much of Lahaina and killed 102 people, but the public can’t see it until the Maui Fire Department releases it.

And Maui County doesn’t know when that will be.

Federal ATF officials are on Maui this week briefing the Maui Fire Department on the agency’s findings and answering any questions Maui officials might have, said Jason Chudy, a spokesman for the agency. 

“We’ve made everybody available for the full week,” Chudy said in an interview on Tuesday. The ATF plans to post the entire 600-page report on its website, Chudy said, but only after Maui has released its own origin and cause report, which will include the ATF report as an addendum. 

Asked when that would be, Chudy said, “I have no idea. It’s all Maui Fire Department’s call.”

Dimly realizing these truths created a FOIA problem, the Maui County Mayor’s office contradicted Civil Beat on July 10, 2024:

In response to multiple queries about the timeline and process for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) investigation into the cause and origin report for the Lahaina wildfire, Maui Fire Chief Brad Ventura and ATF spokesman Jason Chudy offer the following statements:

“County of Maui Department of Fire and Public Safety (MFD) met with ATF the last week of June to review details of the ATF report on cause and origin, which is more than 400 pages,” Chief Ventura said on July 10. “An article published June 28 alleged that the ATF investigation was completed and that MFD was holding the report for an unknown amount of time. We would like to clarify that this statement is inaccurate, and that ATF is still in the process of completing its report. Once ATF formats its report, the finalized report will be sent to MFD and we will add it as an appendix to the MFD cause and origin report.

“While our department is tasked with investigating every fire, we utilize ATF to assist with more complex, scientific fire analysis,” Chief Ventura added. “ATF has not given a timeline for its finalized report. However, we recognize the importance of sharing this information with the public, and plan to release our cause and origin report as soon as we receive and integrate ATF's findings.”

“My recent comments in a June 28 Civil Beat article were comprised with information that I had at that time,” ATF spokesman Jason Chudy said on July 10. After a weeklong review with the County of Maui Department of Fire and Public Safety, there was additional formatting required by ATF to complete our report. ATF is diligently working to finalize our report, and we appreciate everyone's patience as we finish this comprehensive, significant and impartial investigation.”

Here is the BATF response to our FOIA request Aug 13, 2024:

This responds to your Freedom of Information Act (FOIA) request dated August 10, 2024, and received by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) on August 11, 2024, in which you requested ATF's cause and origin report regarding the August 2023 Lahaina wildfires. Your request was assigned ATF tracking number 2024-01847. Please refer to this number in any future correspondence.

At this time, the investigation relating to your request is still open. Therefore, your request is denied pursuant to 5 U.S.C. section 552(b)(7)(A) because it concerns an ongoing investigation. Exemption 7(A) authorizes federal agencies to withhold investigatory records or information compiled for law enforcement purposes, the release of which could reasonably be expected to interfere with enforcement proceedings.

The Freedom of Information Act, 5USC 552 (b)(7)(A) reads : 

(b) This section does not apply to matters that are … (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings

We appealed to the USDoJ, and on September 3, 2024, received their denial based on the same grounds:

After carefully considering your appeal, I am affirming ATF's action on your request. The FOIA provides for disclosure of many agency records. At the same time, Congress included in the FOIA nine exemptions from disclosure that provide protection for important interests such as personal privacy, privileged communications, and certain law enforcement activities. ATF properly withheld this information in full because it is protected from disclosure under the FOIA pursuant to 5 U.S.C. § 552(b)(7)(A) and it is reasonably foreseeable that disclosure of this information would harm the interests protected by this provision. This provision concerns records or information compiled for law enforcement purposes the release of which could reasonably be expected to interfere with enforcement proceedings.

The USDoJ helpfully points out that we could appeal by filing a federal lawsuit:

If you are dissatisfied with my action on your appeal, the FOIA permits you to file a lawsuit in federal district court in accordance with 5 U.S.C. § 552(a)(4)(B).

Of course any such suit would become moot as soon as the BATF report is released which is likely to happen long before a federal court would act.  So the USDoJ is successfully participating in Governor Green’s delaying game while he attempts to force a settlement.

Or maybe an FBI dragnet will swoop down on Maui County, Hawaiian Electric, and Kamehameha Schools and arrest officials for 102 counts of involuntary manslaughter.

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PDF: BATF and USDoJ Responses