Murphy DEP Refuses To Disclose Who Acting Commissioner McCabe Is Meeting With And What They’re Talking About

DEP Denies OPRA Public Records Request

Secret meetings with powerful interests are anathema to transparency & accountability

The Murphy DEP denied an Open Public Records Act (OPRA) request for the calendars of private sector meetings held by Acting DEP Commissioner Catherine McCabe and her chief policy advisors, Deputy Commissioner Mans and Chief of Staff Wachter.

The DEP invoked Executive Privilege and claimed that these meetings are secret.

DEP explained the basis for their denial decision, as follows:

Your request for all meeting schedules (for meetings with other than governmental officials) and associated detailed information for Commissioner (sic) McCabe, Deputy Commissioner Mans, and Chief of Staff Eric Wachter for the period of February 1, 2008 to the present is denied on the basis that those records are considered deliberative pursuant to  N.J.S.A. 47:1A-1.1 et seq., and the non-public calendars and itineraries of  public officials are exempt from public disclosure. Public officials must be permitted to schedule private meetings and have confidential discussions about important decisions without the fact of that communication being subject to disclosure. See Gannett N.J. Partners, LP v. County of Middlesex, 379 N.J. Super. 205, 217 (App. Div. 2005) Furthermore, the New Jersey Supreme Court has acknowledged there is a legitimate public interest in keeping confidential the identity of persons consulted  by executive branch officials. North Jersey Newspapers v. Passaic County, 127 N.J. 9 (1992).

The people of NJ have a right to know who their DEP Commissioner is meeting with and what they are talking about.

The Commissioner is a public servant, paid by the people’s taxes, and works exclusively on important public matters of public health and environment. Therefore, public disclosure of her meetings with private sector individuals is essential to the public interest – such meetings never can be “private” or “secret”.

DEP meetings with private individuals also never can be “deliberative” because private sector individuals serve purely an advisory role, and are not involved in actual government decision-making and so are never engaged in actual policy deliberations.

Private individuals who meet with DEP policymakers do not have any “privacy” interests or reasonable expectations of privacy.

Under ELEC rules (see definition of “lobbyist”), anyone who meets with a policymaker is presumed to be seeking to “influence government processes” and must publicly disclose and report that meeting to ELEC. (see ELEC White Paper:

How can DEP claim these meetings are secret and deny OPRA requests when ELEC rules require disclosure and reporting?

We were led to believe that the Murphy administration was progressive and supportive of good government, and agreed that open government, transparency and accountability are foundational principles and prerequisites of democracy.

But that’s enough of the wonk stuff.

Obviously, who the DEP Commissioner meets with is a very strong indicator of not only what interests have power and influence, but what policy deliverables are offered up to “friends” of the Administration.

I’ve been around long enough to recall that the Bergen Record won a national journalistic award for their “Open For Business” series, that documented, among other things, the Whitman administration’s DEP meetings with regulated industries and tied those meetings to campaign contributions and DEP regulatory favors. (see:  “A New Genre of Environmental Reporting “).

But this issue cuts both ways.

Transparency is especially important at a time when friends of the administration are buying billboard ads praising a “New Day” at DEP (sycophants at PPA and the Highlands Coalition) and – perversely – are openly bragging about endorsing and spending “over $400,000” to elect Governor Murphy, while praising and providing cover for Murphy’s flawed “deliverable” deal (see this from NJ LCV).

Who the DEP Commissioner is meeting with and what they are talking about are important indicators of not only who has access and influence on policy, but in documenting what the policy priorities of the Administration are.

I filed the McCabe calendar OPRA request at the same time I filed another OPRA request for various public documents regarding the current ongoing negotiations to re-join the northeast Regional Greenhouse Gas Initiative (RGGI), as directed by Governor Murphy’s Executive Order #7.

The public should know not only the factual technical basis for those RGGI negotiations (e.g. the current greenhouse gas emissions inventory and derivation of the emissions cap), but who the DEP is meeting with to discuss these issues, especially if regulated corporations are involved (as they certainly are).

Of course, disclosure of meeting calendars is important information as well to determine whether the Murphy DEP is “balanced” (a word McCabe herself claimed was her “mantra”) in meeting with public interest groups and corporations and regulated interests.

Finally, that information can show who has access to DEP policymakers and followup investigations can look at critical issues like: whether those same meeting participants have regulatory decisions pending before DEP or have made political donations to Gov. Murphy.

The NY Times sees a LOT of news value in these issues as well, see:

• E.P.A. Chief’s Calendar: A Stream of Industry Meetings and Trips Home

Why is US EPA Scott Pruitt’s calendar published – and widely reported by media and criticized – but NJ DEP Catherine McCabe can dodge all accountability and conduct her affairs in secret?

So, will NJ’s depleted but intrepid press corp report this new and get their lawyers involved in challenging DEP’s sweeping secrecy claims?

Or do they only investigate and report on Republican Administrations?

And if in fact NJ Courts have ruled as DEP interprets them, will the Legislature close those loopholes and amend OPRA to stop these abuses?