Murphy DEP Seeking Secrecy Exemptions From NJ Public Records Law

Posted on March 4, 2019 by Bill Wolfe

Proposal would frustrate anti-bear hunt activists and benefit private landowners & hunters

Using secrecy to frustrate the exercise of constitutionally protected activities under the guise of protecting public safety is a disgrace.

[Update: 3/24/19 – Rich Cowen of the Bergen Record wrote a killer story today:

[More Updates below]

I just noticed this December 17, 2018 DEP rule proposal – but unfortunately the public comment period closed on February 15, 2019.

The Murphy DEP is seeking to exempt certain DEP records from NJ’s Open Public Records Act (OPRA) law.

The intent of OPRA was overwhelmingly to promote public disclosure of public records, so any regulations to implement the specific exemptions the Legislature did provide in OPRA should be narrowly construed and be considered an option of last resort.

This proposed OPRA exemption caught my eye – it would exempt certain DEP records from OPRA. But while exempting from OPRA and thereby keeping these records secret to the public, the DEP proposed to allow private landowners to get them:

i. The Department shall disclose the records identified in (a)4 above to the owner of land upon which the potentially dangerous species has been located, if requested by the landowner.

The doesn’t seem to meet narrow construction and last resort tests, and I’m curious if the anti-bear hunt activist interpret it the way I do:

1. as targeted at anti-bear hunt activists (under a sham pretext of protecting public safety)

2. designed to frustrate their anti-hunt activism and shield DEP bear hunting and bear management actions from public scrutiny and accountability; and

3. to benefit private landowners who allow hunters to access their land (keep in mind that the Murphy DEP allows bear hunt on private lands, but not public lands).

Here is the DEP’s explanation of why they seek to keep certain public records – specifically including those related to DEP black bear hunt and bear management practices:

The Department proposes new N.J.A.C. 7:1D-3.2(a)4 to exempt from disclosure, government records that would allow individuals to identify, track, or otherwise determine the location of species that, in the opinion of the Division of Fish and Wildlife, are potentially capable of inflicting serious or fatal injuries or being a menace to public health. This exemption is necessary to protect the public from harm that may occur from seeking out and encountering and/or interfering with the Department’s efforts to manage these species. The proposed exemption applies to records containing information that, if disclosed, could potentially allow individuals to track or otherwise locate these species, such as locations of sightings, dens, nests, or other habitation sites, locations of traps, or other control techniques implemented by the Department’s Division of Fish and Wildlife (DFW) biologists, and tracking or locational information generated by collars, tags, or transmitters affixed to such species by the Department including, but not limited to, radio frequency identification tags (RFID) and passive integrated transponder tags (PIT). The release of this information would jeopardize the Department’s ability to protect public safety by increasing the likelihood that individuals seek out and encounter these species and/or interfere with the Department’s management efforts. The Department has documented numerous instances where members of the public have placed themselves and others, including Department employees, in danger because of such activities.

In crafting this exemption, the Department proposes to include those species that, as determined by the Department’s Division of Fish and Wildlife, are considered potentially capable of inflicting serious or fatal injuries or being a menace to public health with a non-exhaustive, illustrative list that includes bear, non-domestic dogs, non-domestic cats, venomous and constrictor snakes, and exotic species.

Using secrecy to frustrate the exercise of constitutionally protected activities under the guise of protecting public safety is a disgrace.

Does this mean that anti-bear hunt activists can not get data on DEP’s bear science, management and enforcement tactics, but that private landowners can – including those who sell access rights to hunters?

That private landowners and hunters can get DEP bear trapping and tracking and RFID and PIT tag locational data? Obviously that data would help hunters kill bears.

But bear advocates and the media can not get DEP data on how DEP manages nuisance bears, including killing them?

Am I reading this right? If so, that is simply unacceptable.

This proposed exemption seems not only very broad, but poorly justified – there are literally no facts or evidence provided to justify the proposal.

That deficit fails to meet fundamental requirements that evidence and science justify any proposed regulation be subject to public review and comment, lest the rule be arbitrary and capricious.

The flimsy 4 page proposal includes just one sentence regarding tis impact:

Environmental Impact

The proposed amendments will have a positive environmental impact by allowing the Department to engage in efforts to track and control potentially dangerous species without disclosing information that would endanger public safety.

So I would be curious to hear from the anti-hunt folks – I didn’t see anything in the press about this proposal, but I didn’t look too hard.

[Update: a reader’s email:

I think Bill has hit the nail on the head. The excuse that there’s a danger to the public is absolute bullshit. What’s to protect hikers, and kids who wander in the woods off trails, if dangerous locations are secret?? And if there are so many dangerous locations, why haven’t they been closed to the public?? I am not aware that any public lands have been closed to the public because of dangerous wildlife. Or that DEP has ever expressed concern about dangerous locations on private land.
And what’s the record of human fatalities and injuries from poisonous snakes? I think they and the cats and dogs were thrown in to cover up the intended purpose, which is to get the anti-bear-hunt activists.
[Update – 3/7/19  – According to my friends at the Animal Protection League of NJ:

It  [the DEP proposal] will make the following records request NOT a public record under OPRA:

·        “Harvest” reports

·        Hunter incidents with bears

·        Complaints

·        Spreadsheets

·        Bear Handling Reports

·        And more. . .

In terms of transparency of hunting and bear locations, it will be almost total secrecy.

 They were gracious enough to note that they discovered the proposal by reading Wolfenotes:

We discovered this because of your blog. Sierra Club sent out a press release. We’re starting to get press calls today. Apparently, it caught all of us off guard.

Another story broke and no credit. ~~~ end update]

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