Murphy DEP Expands Abuses Of Open Public Records Law
DEP Invokes A Broad Categorical Secrecy Claim Over DEP Internal Communications
DEP Creates New Secret Category – A “Ghost File” For Withdrawn Permit Applications
Protecting Pipeline Corporations While Keeping The Public In The Dark
New Jersey can boast of a long and proud “tradition[ ] of openness and hostility to secrecy in government.” [cite] Our well-established common law protection of a citizen’s right to access, [cite] is complemented by the Legislature’s enactment of OPRA, which was intended to enhance the citizenry’s statutory rights to government maintained records. …
OPRA’s clear purpose, we explained, is “to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.” [cite] The statute employs a straightforward means to accomplish its goal. Ibid. OPRA declares that it shall be our public policy to require that government records “be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest.” ~~~ NJ Supreme Court
Making a mockery of NJ’s Open Public Records Act (OPRA) law, the Murphy administration’s Department of Environmental Protection (DEP) has vastly expanded the scope of so called “deliberative privilege” exemptions under (OPRA). And they did so categorically, with not even an attempt to justify the secrecy.
These latest abuses of OPRA follow a pattern of secrecy – previously, DEP Commissioner McCabe denied OPRA request for public records of who she meets with and what policy is discussed; DEP claimed no public documents existed regarding the rubber stamp of Christie NRD settlements; denied my OPRA requests for public documents regarding rejoining RGGI (post forthcoming on the RGGI denial) and refused to reform the Christie administration’s corporate dominated “by invitation only” “Stakeholder” process.
DEP has categorically declared that virtually all DEP internal communications – including regarding facts, science, and data – are exempt under OPRA and therefore secret.
In addition, they have manufactured an entirely new category of exemption, by failing to disclose public records of so called “withdrawn” permit applications.
Both moves are outrageous abuses of OPRA and serve to frustrate transparent and accountable government, while providing protections for secret influence on DEP by corporate interests.
Back in early July, I filed two OPRA requests to DEP for public records regarding two controversial DEP decisions:
1) the renewal of expiring permits for the South Jersey Gas Co. Pinelands pipeline; (for background, see: Murphy DEP Given Chance To Kill South Jersey Gas Pinelands Pipeline; and
2) public records regarding the proposed Transcontinental Gas Pipeline Company proposed compressor station in Franklin and a pipeline in Old Bridge and Sayreville (see: The Oil and Gas Industry Wrote NJ DEP Pipeline Review Guidelines).
Here’s how DEP responded to those requests and how they create huge new secrecy abuses.
I) Blackout on DEP Science, Data, Emails and Internal Communications
For the SJG Pinelands pipeline, I requested the following public records – I boldfaced the relevant request:
I request the following public records regarding a request filed by the South Jersey Gas Company to extend Freshwater Wetlands and Waterfront Development permits for the proposed Pinelands pipeline and related infrastructure: 1) the applicant (SJG) request and documents required to comply with applicable expiration rules; 2) all correspondence between SJG and DEP regarding same. 3) all emails and DEP communications regarding review and approval of same 4) all public comments submitted to the DEP regarding same.
DEP responded as follows:
Request Item # 3 has been denied as the responsive emails entail internal emails that are not considered government records pursuant to N.J.S.A. 47:1A- 1.1, being intra-agency advisory, consultative, and/or deliberative material. (NJ DEP OPRA Office, 7/12/18)
The so called “deliberative privilege” under OPRA was designed as a narrow exemption to protect the legitimate “deliberations” of the final decision makers in State agencies in making policy decisions.
It was NOT intended to – and it does not – throw a broad and categorical secrecy blanket over scientific and factual information that is gathered and analyzed and communicated by State agency employees, crucial information that forms the factual basis of those policy decisions. The NJ Supreme Court explains:
OPRA exempts from the definition of “government record” documentary information that constitutes “inter-agency or intra-agency advisory, consultative, or deliberative material.” …
The deliberative process privilege “permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” [cite] The essence of the privilege is simple, its rationale built on powerful logic. As explained by Justice Reed when introduced for use in the federal courts, the privilege is necessary to ensure free and uninhibited communication within governmental agencies so that the best possible decisions can be reached.
Free and open comments on the advantages and disadvantages of a proposed course of governmental management would be adversely affected if the civil servant or executive assistant were compelled by publicity to bear the blame for errors or bad judgment properly chargeable to the responsible individual with power to decide and act. Government from its nature has necessarily been granted a certain freedom from control beyond that given the citizen. It is true that it now submits itself to suit but it must retain privileges for the good of all.
This seems to prefer secrecy to transparency and public disclosure.
However, there are important distinctions that must be made in determining what documents are truly “deliberative” and exempt under OPRA. They involve the nature of the information (e.g. whether it is fact or science, versus advise or opinion) and the level within the agency that the information is generated in relation to the final agency decsion-maker (e.g. the “nexus”, or its role in deliberation and how close it is to the final decision by the Commissioner). The NJ Supreme Court explains:
Because the privilege is a qualified one, a litigant can still obtain the requested materials upon a showing that the need for the materials overrides the government’s interest in confidentiality. Ibid. At that point, the burden is on the litigant to demonstrate such a compelling need: “[I]n all but exceptional cases it is considered against the public interest to compel the government to produce inter-agency advisory opinions.” Ibid. [cite]. In making the determination whether a litigant has demonstrated an overriding need, a court should consider the following factors: “(1) the relevance of the evidence; (2) the availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.”
For example, a DEP field technician’s memo to his supervisor summarizing water quality data is a scientific communication that is far down the management chain and deliberative process for a final permit decision made the Commissioner.
In contrast, a memo or email to the DEP commissioner from an Assistant Commissioner that summarizes the issue, balances public comments, and makes recommendations on a water quality permit decision legitimately could be considered to be “advisory, consultative, and/or deliberative” exempt under OPRA.
The NJ Supreme Court lays out the framework – it is clear that there can be no blanket claims to “deliberative privilege”, and clearly, science and factual information is distinct from consultation and advice, as is the role of the information in the “nexus” of the deliberative process.
In EDUCATION LAW CENTER, On Behalf of Abbott v. Burke Plaintiff Children, Plaintiff-Respondent, v. NEW JERSEY DEPARTMENT OF EDUCATION, Defendant-Appellant, the Court ruled: (emphasis mine)
We hold that a record, which contains or involves factual components, is entitled to deliberative-process protection when it was used in the decision-making process and its disclosure would reveal deliberations that occurred during that process. By that standard, an individual document may not be capable of being determined to be, necessarily, deliberative material, or not, standing alone. A court must assess such fact-based documents against the backdrop of an agency’s deliberative efforts in order to determine a document’s nexus to that process and its capacity to expose the agency’s deliberative processes.
In my case, DEP has abused OPRA by throwing a broad secrecy blanket over virtually all DEP science, data, and technical analyses conducted by DEP professionals and scientists, regardless of its role in the deliberative process.
DEP staff are “public servants”. They work for the public and virtually everything they do is “on the record” and public, not secret. How could DEP possibly get away with trying to keep all DEP emails on permit reviews secret? For years, in Democratic and Republican Administrations, I have filed OPRA requests and been provided DEP emails regarding permit reviews.
In denying my OPRA, DEP arrogantly failed to even justify their claims about the deliberative process. They imply categorically denied my request.
There is no way that all DEP communications regarding renewal of the SJG permits could all reflect DEP’s internal, pre-decisional policy recommendations.
Obviously, there is a strong public interest in knowing what DEP professionals say about the application of DEP rules for renewal of permits with respect to the hugely controversial SJG pipeline.
II) Ghost Permit Files – Public Comments Go Down The Memory Hole
DEP also created an entirely new category of OPRA exemption.
I was particularly interested in public comments filed by Princeton Hydro on that permit application, which I was led to believe identified fatal flaws in the permit application that would force DEP to deny the permit.
I suspected that by allowing Transco to withdraw the flawed permit application and re-apply instead of simply denying the application, that DEP was protecting Transco.
I assumed that someone in DEP had a similar view and had put it in writing during the permit application process.
So I filed the following requests for public records: I boldfaced relevant request denied:
I request the following public records for the Transcontinental Gas Pipeline Company proposed compressor station in Franklin and a pipeline in Old Bridge and Sayreville, AKA The Northeast Supply Enhancement Project: 1) written comments on proposed permits submitted by Princeton Hydro regarding proposed freshwater wetlands and stream encroachment permits and DEP water quality certification 2) correspondence between the applicant and the DEP from January 1, 2018 until today regarding freshwater wetlands and stream encroachment permits and water quality certification 3) all public comments submitted to DEP regarding the aforementioned permits and approvals.
DEP replied as follows:
There are no responsive records for Request Item # 3 as the subject permit application was withdrawn prior to the public comment period and only recently resubmitted. (NJ DEP OPRA Office – 7/12/18)
These public comments did not evaporate after Transco withdrew the permit application. Those public comments still exit in paper file at DEP. They are still public records.
The fact that the permit application was withdrawn has no bearing on the existence of these public records.
Of course the public comments and documents related to a permit application that Trancso withdrew are very important – they provide facts, science, and analysis on what may be fatal flaws in the project. That information could be used by the public to challenge the Transco pipeline in future DEP and legal proceedings.
By keeping these documents secret, DEP is only protecting the corporate interests of the Transco pipeline company.
And that is an outrageous abuse of OPRA. It is an example of Orwell’s “Down the memory hole” to erase history.
I sent the following request for legislative oversight to Chairman Smith and Senators Weinberg (an OPRA champion), Greenstein and Bateman on Smith’s Committee:
Dear Chairman Smith and Senators:
I recently filed 2 OPRA requests for public records regarding the DEP renewal of expiring permits for the South Jersey Gas (SJG) proposed Pinelands pipeline and the proposed Transco pipeline.
DEP denied portions of the administrative record for the SJG pipeline on the basis of deliberative privilege.
DEP denied portions of the Transco request on an entirely novel ad hoc basis: that the public records did not exist because he permit application had been withdrawn.
Both denials constitute abuses of OPRA and what the NJ Supreme Court has called NJ’s “proud “tradition[ ] of openness and hostility to secrecy in government.”
As a former DEP official, I find both denials to lack any basis in law or public policy and constitute a stain on DEP’s credibility.
I urge you to conduct legislative oversight of these abuses and, if necessary, proposed legislation to avoid future abuses along these lines.
The documents, a link to the controlling NJ Supreme Court decision, and my analysis can be found at this link:
Murphy DEP Expands Abuses Of Open Public Records Law
http://www.wolfenotes.com/2018/08/murphy-dep-expands-abuses-of-open-public-records-law/
I appreciate your favorable consideration and am available to respond to your questions.
Respectfully,
[End note: I realize that the Supreme Court case cited above ruled that the documents were exempt as deliberative. It is the logic and analysis in that opinion that I am relying on to criticize DEP’s sloppy, blanket, broad, and unconditional claims.]
[Update – 8/16/18 – Senator Smith’s Office responded and suggested I file a complaint with the Government Records Council (GRC). The GRC is waste of time. Legislators need to conduct oversight of DEP practices and legal interpretations and amend OPRA’s deliberative privilege exemption to prevent these kind of abuses]