DRBC Stonewalls As Landowners Demand Justice
The DRBC is engaged in some stonewalling, it seems, as it rejects a request to share its correspondence with Josh Fox, incorporated special interest groups and the natural gas opposition; leading some to ask what exactly is the agency attempting to hide?
UPDATE: NWPOA has appealed the DRBC decision to stonewall on its FOIA request, also expanding that request to include DRBC files for other FOIA requests. Here are the relevant parts of the appeal:
This [DRBC] explanation is unsatisfactory for five specific reasons, which are as follows:
1. Mr. Gore’s decision to deny our request did not, as required by Section 2.8.9.B, occur within the required ten working days. Our request was made on March 25, 2013 and not answered until April 11, 2013, a period of 13 working days.
2. Mr. Gore’s decision to deny our request did not, as required by Section 2.8.9.C, state our right, as the person requesting such records to appeal any adverse determination to the Executive Director of the Commission.
3. Mr. Gore’s claim that the DRBC does not maintain copies of correspondence and communications is patently absurd and demonstrates the cavalier and condescending nature of his response. Obviously, the DRBC does keep copies of correspondence and communications and we demand access to those records.
4. Mr. Gore’s assertion of privacy rights clearly cannot apply to a corporate entity such as Damascus Citizens for Sustainability, Inc., Sweet Jane Productions, Inc. or any of the several others we cited. This is a well established principle of FOIA case law.
5. Mr. Gore’s response with respect to his assertion of privacy rights did not address the clear guidelines from the U.S. Department of Justice with respect to privacy exemptions, which only apply to personnel, medical and similar records. Those guidelines unambiguously require an initial determination whether the information at issue is contained in a personnel, medical, or “similar” file covered by the exemption. No such determination was made in this instance. Moreover, the Court of Appeals for the District of Columbia Circuit has declared that “under Exemption 6, the presumption in favor of disclosure is as strong as can be found anywhere in the Act.” We have not requested any information that could remotely be described as personnel related, medical or of a similar nature and yet, Mr. Gore, has proceeded, without even offering a token explanation, to deny us access to records on this basis. We consider this an egregious violation of both the spirit and the letter of the FOIA legislation and the DRBC rules.
We hereby appeal Mr. Gore’s decision and renew our request for the records articulated in our March 25, 2013 FOIA request.
We also wish to expand our FOIA request to include a copy of the public log specified in Section 2.8.8.C with respect to FOIA requests made from January 1, 2007 through April 15, 2013.
The Delaware River Basin Commission (DRBC) took it on the chin in FrackNation and with good reason. Watching Carol Collier try to avoid discussing her relationship with Josh Fox, finally throwing Phelim McAleer out of her office and then sending her attorney to chase him to the parking lot, was poetic justice for landowners waiting on the agency to act. The DRBC catered to the demands of Fox and company in the early going and Collier even agreed, until complaints arose, to attend a fund-raiser for the opposition where Gasland was to be the main event.
The delays in crafting draft regulations by DRBC were an exercise in bumbling the likes of which are seldom seen. The SRBC, for example, put regulations in place within a few months and has continually improved upon them. Compare that to DRBC, which has experienced 19 months of complete indecision since a vote was scheduled on September 21, 2011 and then repeatedly delayed.
When it was learned how EPA’s action in Dimock were influenced by Fox, members of the Northern Wayne Property Owners Alliance (NWPOA) decided they needed to know what role these folks, if any, might have had in the ongoing DRBC delay. With this thought in mind they filed a request for communications between the agency and these special interests under the Freedom of Information Act (FOIA).
The DRBC has essentially answered that request with an arrogant “No Way – No How” in clear violation of the federal statute. With that, the stonewalling has begun.
The DRBC is a compact between the federal government and four states and is by virtue of Section 8 of it’s own rules,subject to the Freedom of Information Act. Section 2.8.3.A of the DRBC rules says the following (emphasis added):
Any written request to the Commission for existing records not prepared for routine distribution to the public shall be deemed to be a request for records pursuant to the Freedom of Information Act, whether or not the Freedom of Information Act is mentioned in the request, and shall be governed by the provisions of this part.
Curt Coccodrilli, on behalf of NWPOA (where he serves on executive and steering committees), filed a request for records under this rule with Richard Gore, the DRBC’s designated FOIA Officer, and later supplemented it, both via e-mail. Here is Coccodrilli’s request:
Original March 25, 2013 E-Mail Request
As you are the Freedom of Information representative for the DRBC, we the NWPOA (Northern Wayne Property Owners Alliance), are formally requesting any and all correspondence, e-mails and other written communications including phone records between DRBC staff and staff individuals,volunteers, and/or board members of the following groups, or entities between January, 2008, and March 26, 2013:
Open Space Institute (any staff)
Catskill Mountainkeeper (any staff)
Joshua Fox a/k/a Josh Fox
International Wow Company (any staff)
Sweet Jane Productions, Inc. (any staff)
Delaware Riverkeeper (any staff)
Natural Resources Defense Council (any staff)
Pinchot Institute (any staff)
This request does not include written and oral testimonies regarding proposed gas drilling regulations. We are also asking if any staff of DRBC is a member of, or has donated money to any of the above noted organizations over this time period.
Supplemental E-Mail of March 25, 2013
In addition to the FOIA request made earlier today we would also like to add the following groups to that list with the same stipulations applying:
Delaware Highlands Conservancy
Sierra Club of New Jersey
Damascus Citizens for Sustainability
Environmental Defense Fund
Occupy Well Street
Artists Against Fracking
The DRBC rules allow 10 days for a response, per this rule:
Within ten working days (excepting Saturdays, Sundays, and legal public holidays) after a request for records is logged by the FOIA Officer, the record shall be furnished or a letter shall be sent to the person making the request determining whether, or the extent to which, the Commission will comply with the request, and, if any records are denied, the reasons therefor.
Having received no response within the requisite 10 days, Coccodrilli inquired, on April 10, 2013, on the status of his FOIA request. This generated the following response the next day, forwarded to Coccodrilli by another DRBC staffer who couldn’t even spell Coccodrilli correctly, despite his name being listed in the e-mail:
Dear Mr. Coccadrilli:
I am writing in response to your FOIA request of March 25 and status query of April 10.
Article 8 of the Commission’s Rules of Practice and Procedure provides, “The Commission will make the fullest possible disclosure of records to the public, consistent with the rights of individuals to privacy, the property rights of persons in trade secrets and confidential commercial or financial information, and the need for the Commission to promote frank internal policy deliberations and to pursue its regulatory activities without disruption.” RPP § 2.8.1. The article further provides that “[t]he Freedom of Information Act and the provisions of this part apply only to existing records that are reasonably described in a request filed with the Commission …. The Commission shall not be required to prepare new records in order to respond to a request for information.” RPP § 2.8.4.
Please be advised that you have requested data or information about which the Commission does not maintain records. In accordance with the cited regulations, the Commission is not obliged to create new records in response to a FOIA request. Your request also encompasses information in which, on the advice of counsel, employees likely have a right to privacy in accordance with the freedom of association, among others, accorded by the Fourteenth Amendment of the U.S. Constitution. As such, if the Commission did possess the information, our policy would preclude our producing it.
Richard C. Gore
It’s not hard to see where this could be going. The DRBC does not intend to share information regarding its contacts with special interests opposed to natural gas development. Carol Collier, fresh from stonewalling Phelim McAleer, is now doing the same with NWPOA, apparently using the same legal counsel to do so. The difference, McAleer was merely a filmaker while NWPOA is representing the interests of blue-collar Americans who are simply trying to make ends meet by exercising their private property rights.
Gore cites two excuses in his denial of the FOIA request. He pretends a request for copies of correspondence is somehow asking for “new records” when it is anything but. He also cites employee rights to privacy. Unfortunately, neither of these qualify among FOIA exceptions listed in the DRBC rules. Here are the exceptions:
A. related solely to the internal personnel matters of the Commission;
B. specifically exempted from disclosure by statute;
C. trade secrets and commercial or financial information obtained from a person and
privileged or confidential…;
D. inter-agency or intra-agency memorandums or letters other than purely factual compilations, which would not be available by law to a party other than an agency in litigation with the Commission;
E. personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; and
F. investigatory records compiled for law enforcement purposes…
I have to ask when does correspondence of government officials qualify as “new records” or private communications? It clearly does not unless it relates to personnel, medical or otherwise personal activity. Yet, the DRBC’s legal counsel (presumably the same individual who chased McAleer to his car) and its FOIA officer are trying to use this excuse to avoid providing any transparency on their deliberations over natural gas regulations.
The FOIA does not protect the DRBC from disclosures but, rather, its employees and the requirements are articulated on the first page of a Department of Justice guide on this particular FOIA exemption. Here is the relevant portion (emphasis added):
In order to determine whether Exemption 6 protects against disclosure, an agency should engage in the following two lines of inquiry: first, determine whether the information at issue is contained in a personnel, medical, or “similar” file covered by Exemption 6; and, if so, determine whether disclosure “would constitute a clearly unwarranted invasion of personal privacy” by balancing the privacy interest that would be compromised by disclosure against any public interest in the requested information. When engaging in this analysis, it is important to remember that the Court of Appeals for the District of Columbia Circuit has declared that “under Exemption 6, the presumption in favor of disclosure is as strong as can be found anywhere in the Act.” Additionally, it is important to keep in mind that Exemption 6 cannot be invoked to withhold from a requester information pertaining only to himself.
To warrant protection under Exemption 6, information must first meet its threshold requirement; in other words, it must fall within the category of “personnel and medical files and similar files.” Once it has been established that information meets the threshold requirement of Exemption 6, the focus of the inquiry turns to whether disclosure of the records at issue “would constitute a clearly unwarranted invasion of personal privacy.” This requires a balancing of the public’s right to disclosure against the individual’s right to privacy. First, it must be ascertained whether a protectible privacy interest exists that would be threatened by disclosure. If no privacy interest is found, further analysis is unnecessary and the information at issue must be disclosed.
Did the DRBC evaluate NWPOA’s as required? Well, you can be the judge, but it can be argued that their response seems cavalier and dismissive. Considering much of the correspondence requested was with organized groups and corporations who have no right to expect and privacy under FOIA the argument grows. Therefore, a reasonable person can reasonably conclude the DRBC is building a wall.
Where does NWPOA go from here? Well, it can appeal, of course, to Carol Collier, but that’s unlikely to yield much. It can also appeal to Commission members to stop tolerating these actions from an agency most of them don’t even fund anymore. They can also pursue litigation or involve some FOIA experts such as Judicial Watch in the matter. It’s sad NWPOA has to go to this extent but one hopes their efforts continue, because, as a famous poet once said, “Something there is that doesn’t love a wall.”