Appalachian Basin

The DRBC Dance Around the Stonewall

The Northern Wayne Property Owners Alliance is engaged in a tug-of-war with the DRBC over access to the latter’s communications with natural gas opponents.  The DRBC leadership is doing a dance around a stonewall erected to prevent those communications.  They may hear a lawsuit coming downriver over the agency’s taking of property rights by default. 

Readers of this blog will recall our story about the Delaware River Basin Commission’s (DRBC) response to a Freedom of Information Act (FOIA)  request by the Northern Wayne Property Owners Alliance (NWPOA), which was both late and patronizing. The agency’s FOIA officer also denied access to all requested records, claiming all its communications were somehow private, and as if correspondence from a government agency was somehow personal.

The NWPOA countered this stonewalling with an appeal of the decision to Executive Director Carol Collier and a demand for copies of the agency’s FOIA file.  Answers to both requests have now been received.  They reveal an organization that makes it up as it goes along, is more than accommodating to the natural gas opposition, and is determined to resist sharing its communications with that opposition until forced to do so.

It was impossible for the DRBC to avoid giving up its FOIA log, which is an official document, so that came rather quickly. Then again, it’s only a spreadsheet record, which does not reveal the form and manner of other requests to compare with NWPOA’s.  Still, it was eye-opening.

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The very first FOIA request to the DRBC regarding natural gas issues was made on August 7, 2008, by the Delaware Riverkeeper Network for “all materials relating to natural gas well drilling in DRB 1/1/08 to present,” which yielded two letters e-mailed to the Riverkeeper on September 2, 2008, at no charge.  Isn’t it interesting the DRBC was able, in response to an all-encompassing request from a natural gas opponent, able to supply copies of letters and deliver them electronically, which probably required someone to dig them out and scan them, at no cost?

Yet, NWPOA was told on April 11, 2013, that its request for “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 groups such as the Delaware Riverkeeper “between January, 2008, and March 26, 2013” couldn’t be honored because it “requested data or information about which the Commission does not maintain records.”  Records could not only be found when the Riverkeeper asked for them, but delivered at no cost with nary a word about personal privacy it appears.  Hmm…that’s odd.

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Similar sharing of information denied to NWPOA occurred on June 16, 2010, when the DRBC granted another Riverkeeper request made the very same day for “National Park Service letter re: natural gas development in Delaware River watershed,” which was also photocopied and e-mailed.  It seems some entities are not only able to secure copies of correspondence but, also, receive expedited service (another Riverkeeper request was filled before being recorded in 2007).

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Then, there is the request by ProPublica, honored in one day, for copies of expert reports and correspondence from Mayor Bloomberg, also scanned and e-mailed at no cost.

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The DRBC, it seems, is also able to produce e-mails upon request when the party requesting is the Delaware Riverkeeper.  When the latter, in late 2011, wanted copies of “PSC/Dupont Chambers Works natural gas wastewater emails to DRBC” it got them – no problem.  It renewed that request in early 2012 and got a CD full of e-mails it appears — and once again, at no cost.  Whatever the Riverkeeper wants, the Riverkeeper gets and the DRBC has no problem digging it out, transferring it to a CD and sending it along.

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When the NWPOA requested copies of communications such as e-mails and written correspondence, though, the DRBC decided it didn’t have any records of those.  It could have, as in three other cases, simply asked NWPOA to narrow the scope of its request or invited a representative to review its files.  But it simply denied them.

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Instead, NWPOA received a flat denial – a “no e-mails for you” declaration from the FOIA folks at DRBC.  This was the only denial issued by the agency out of 245 requests over more than six years, as the following summary table illustrates:

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NWPOA appealed this denial to DRBC Executive Director Carol Collier, who, of course, is one of the parties about which information on communications is sought.  We noted this in the update to our last blog post on this subject.  A response was received on May 15, 2013, from Commission Secretary and Assistant General Counsel Pamela Bush.  Here are the relevant excerpts (emphasis added):

At Ms. Collier’s request, I have re-examined your records request, considering each element in turn. With respect to some elements, I have determined that Mr. Gore’s denial was proper. As to others, records can be assembled at a fee that exceeds the amount ($ 25) for which prepayment may be required in accordance with section 2.8.9 D. of the RPP. Accordingly, this letter includes a fee estimate for certain of the records you have requested. Because the estimated fee exceeds $50, in accordance with section 2.8.9 A. of the RPP, your request for the specific records involved will not be deemed received until you agree to bear the cost.

The types of records named in your March 25 request are addressed by category below. 1. “[A]ll correspondence- between DRBC and staff, volunteers and board members of the 16 named organizations is presumed to consist of “emails and other written communications including phone records.'” The latter three categories are addressed individually as items 2-4 below.

2. “emails·· – Tbe Commission’s website and email services reside with the State of New Jersey. Members of DRBC’ s Planning and lnformation Technology Branch contacted counterparts in Trenton to determine whether email archives for the DRBC could be segregated and searched on domain names for the time period specified. We are informed this can be done. Steps involve: (a) identifying domain names for the 16 organizations you listed, in order to obtain the email extensions of interest (e.g., for the DRBC, the domain name would be “@drbc.state.nj.us”); (b) submitting the search request, including the date range and list of domain names, to the NJ Division of Revenue and Enterprise Services (DRBC cannot control the amount of time required for the Division to fulfill a request once it is submitted, but I am advised to allow approximately two weeks); (c) transferring files to a server location accessible to DRBC staff; (d) spot-checking records for accuracy of the search; (e) conversion to a producible format; (f) making records available to you.

Anticipated cost: The estimated cost of assembling the requested email records is $650. The expense is attributable primarily to consultations by and between IT staff (an estimated 5-6 hrs.). The assistance of clerical staff is also required (estimated at 3 hrs., including web searches to ascertain domain names). Converting the records to a producible format and making them available to you will result in additional expense, which we can better estimate when we know the number of records. As the search is expected to return a large volume of records, the costs of converting the records and making them available to you may be significant. DRBC’s fee schedule for production of records is set forth in section 2.8.10. of the RPP.

Limitations as to sender/recipient universe: Unless an address is specifically identified, the search will not capture emails to or from any individual, such as a board member or volunteer, who does not have an email address that includes the organization’s domain name. Such records, if any, cannot be retrieved unless you are able to provide names and email addresses for the volunteers and board members of interest.

Limitations as to records universe: There is no efficient way to automatically segregate “written or oral testimonies regarding proposed gas drilling regulations” from other records, so these would be included in the collection.

3. “other written communications” – This phrase is assumed to mean paper documents. Although most communications these days are electronic, the Commission’s records still include a large quantity of paper files. These are not organized by the affiliation of the sender, however, and cannot reasonably be searched and collected on that basis. Unless you can identify more specifically the paper records you wish to obtain, the Commission is unable to respond to this element of your request. In its current form, therefore, your request as to “other written communications” is again denied.

With respect to responsive email records (other than any subject to the limitations described at item 2 above), we require prepayment in the amount of $650 and your written agreement to bear the full cost of assembling the requested records before we will begin doing so. Once we have received your prepayment and written agreement, we will assemble the requested records and invoice you for any remaining balance for performing these tasks, which amount will be due immediately. We will then advise you of the full fee for converting and making the records available to you. We will not make any records available until we receive the balance of fees incurred in assembling them and the full fee for converting and making the records available to you.

Your request for “other written communications” and “phone records” is denied in its current form for the reasons set forth in paragraphs 3 and 4 above. You are welcome to contact me if you would like assistance in narrowing this request in a way that would enable staff to identify and locate responsive records.

Your request for information concerning staff memberships and donations is denied because the Commission does not possess such records.

Pamela Bush, obviously, took the NWPOA request a lot more seriously than the agency’s FOIA officer.  Although she carefully avoided directly acknowledging the officer’s denial of e-mail records was in error, she did right some of the wrong by properly opening up the DRBC correspondence to review and offered an opportunity for the NWPOA to secure some e-mail records and narrow its request for other correspondence.  It will, undoubtedly, do so.

Unfortunately, that action is accompanied by a fee for material it didn’t charge the Riverkeeper for a similar request. The Riverkeeper also got charged a measly $1.60 for 233 photocopies related to a 2011 Village of Deposit, N.Y., application to renew an existing groundwater withdrawal.  Finally, the agency goes out of its way to say it cannot segregate certain records, the volume will be large and the cost could be significant, in a litany of discouragements directed at the NWPOA.

Nevertheless, the NWPOA is unlikely to be discouraged.  Five years of incompetent DRBC management of the natural gas issue, including nearly two years of simply refusing to vote, is not going to go unrewarded.  The NWPOA may well file a lawsuit in the near future and the DRBC ought to be worried.  Why?  Because the basis for a takings claim advances with every extra month of delay as the agency sits there with a moratorium in place, regulations already drafted, and refuses to vote.

The DRBC can stonewall and dance around that wall all it wishes but the damages grow with each footstep.  A moratorium is, after all, by its very nature, intended to be of limited duration, not eternal.  No dance can go on forever.

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