Circumventing Transparency: Pennsylvania’s Latest Shell Game to Protect Big Energy

by Walter Brasch

        David  M. Jacobson wanted a transcript of a public hearing conducted by the Pennsylvania Department of Environmental Protection (DEP), May 2. The public meeting was to allow persons to discuss a proposal by National Gypsum and En-Tire Logistics to build a tire burner plant in Union County that would burn about 100 million pounds of shredded tires each year, and convert part of that to electricity to benefit National Gypsum, with the rest taken to landfills. Jacobson is a member of Organizations United for the Environment (OUE), which objects to the plant because of the amount of pollutants that would be sent into the atmosphere.

        The DEP was happy to provide the transcript. All Jacobson had to do was drive the 25 miles from his home in Lewisburg to the Williamsport regional office between 8 a.m. and 4 p.m., Monday through Friday. The transcript was not available online, nor would DEP send him a print copy.

        He could view the transcript only at the regional office. He could take notes. But he couldn’t copy it, photograph it, or scan it because, said Dan Spadoni, community relations co-ordinator, the transcript was copyrighted. State law allows individuals to copy, scan, and photograph public documents, and to request copies. Agencies, if requested, must provide documents by electronic means if possible, and may not charge more than 25 cents per page for a printed copy.

        Jacobson says Spadoni, who  had conducted the hearing, told him the DEP “has a master contract” with Sargent’s Court Reporting Service of Johnstown; Spadoni had requested Sargent’s to record the public meeting. However, Spadoni claimed he didn’t know any of the details of that contract.

        The DEP has two levels of transcript payments—a higher payment by DEP to Sargent’s, which allows DEP to publish the transcripts and make them available to anyone who wishes a copy; and a lower fee, where Sargent’s retains all rights. For the May 2 meeting, DEP paid the lower fee.

        Sargent’s, which has a good reputation for accurate transcriptions, quoted Jacobson a fee of $192.85 for the 70 page transcript—about $2.75 a page.

        Jacobson then called Spadoni back. “It didn’t set well with me that DEP would give up ownership to that transcript,” says Jacobson. Spadoni abruptly responded, says Jacobson, “That’s the way it works.” Spadoni did not return several calls to explain reasons for the Department’s policies.

        Sargent’s provided a copy of the transcript to the press at no charge—“It’s at my discretion,” said Sally Sargent, owner of the company. It later provided a copy by email at no charge to Jacobson because, “We decided to make a special exception and give you a free copy.” On the cover of both transcripts is the warning: “Access to this email by anyone other than the intended addressee is unauthorized.” The next day, Sargent’s told Jacobson he could distribute the transcript without restriction. The issue, however, is that the DEP—not Sargent’s—established the system that restricted free access to what should be a public document.
        There is legal precedent to deny DEP’s claim of copyrighted material. Transcriptions of public meetings and court proceedings do not fall under the eight categories that can be copyrighted. In Lippman v. Commonwealth of Massachusetts, the U.S. Circuit Court of Appeals ruled, “Since transcription is by definition a verbatim recording of other person’s statements, there can be no originality in the reporter’s product.” Other cases (State of Tennessee v. Watts, Warth v. Department of Justice, and Urban Pacific Equities v. Superior Court of Los Angeles County) have set precedent that a transcript ordered by a court is a public record. Further, the Administrative office of the United States Courts in 2002 declared: “Certified transcripts filed with the clerk of court may not contain statements or seals which purport to restrict the distribution or copying of the transcript by the clerk’s office or the public. Because transcripts filed with the clerk are public records, they may be used, reproduced and provided to attorneys, parties, and the general public without additional compensation to the court reporter, contractor, or transcriber.”

        Jacobson could file a Right-to-Know request. From filing to final determination by the OOR, the process could take almost three months. Barry Kauffman, executive director of Common Cause/Pennsylvania, was one of the key individuals who helped write the revised Right-to-Know legislation. Issuing transcripts to the public, says Kauffman “was one of the issues we had brought up several times, and we pushed very hard that once an agency pays for a transcript and takes possession, it becomes public record, and subject to the Right-to-Know Law.” Under Section 707(c)(2) of the state’s Right-to-Know Law, in effect since 2008, “[A] transcript of an administrative proceeding shall be provided to a requester in accordance with the duplication rates established in section 1307(b).” That section specifies costs. The agency may not appeal.

        Terry Mutchler, executive director of the state’s Office of Open Records (OOR), says in the five years since the creation of the OOR she has “never had a case in which an agency” contracted with a private company to take transcripts of a public meeting, and then, with the agency’s approval, copyright the transcripts, limit its distribution, and charge fees higher than the state requirements for a public agency. “If this case comes to us,” she says, “we’ll have to examine it.” 

        The delay in being able to get proposals for building or waivers of rules is also a problem. Individuals who wish to view a company’s proposal must first give DEP a two week notice, and then go to the DEP office during regular business hours. Those proposals are not online. Although DEP has posted a lot of information online, DEP told Jacobson, president of American Technology Partners, it will be 10 years before DEP completes plans to put all company proposals online. Jacobson says he asked several persons at DEP why the files were not available, and the most common answer was that the proposals were too many pages to convert files on the web. “If the proposals are too long,” says Jacobson, “why not just split the large file into multiple smaller files; there are even free programs that will automatically split large files.” He wonders, “why are we wasting money paying for the storage space for all these documents?”

        Vera Scroggins and Iris Marie Bloom, both of whom are active in researching and analyzing oil and gas company filings and DEP documents, also question the DEP’s reluctance to scan documents and make them available online in an easy to search and understand manner.

        Scroggins, who was one of the first to demand specific information from inspectors’ reports that could connect fracking operations with water pollution, says to get some of the information she has to drive more than two and a half hours from her home in Susquehanna County to the DEP Williamsport office—and, even then, finds much of the critical information buried in paper files.

        Scroggins and Bloom say it was easier to get information from the DEP prior to Tom Corbett becoming governor in 2011 and proclaiming he wanted to see Pennsylvania become the Texas of the natural gas industry. Bloom, executive director of Protecting Our Waters, Philadelphia, calls DEP actions, “incredibly inappropriate and incredibly frustrating.”

        The DEP also routinely includes the data of only certain possible contaminants,  not all contaminants, in reports it provides to homeowners who question water pollution on their property. Bloom has worked with numerous people who “told me they often waited a year or more just to get results, or just partial results; in many cases, there wasn’t even a response.” Environmentalists have questioned DEP’s research methods and attacked the agency for this lack of transparency.

        The DEP has also refused to meet with any group it doesn’t agree with or like. The DEP refused to send representatives to a hearing scheduled in February by State Reps. Jesse White (D-Cecil) and Mike Sturla (D-Lancaster ) to discuss DEP’s water testing policies. The Pittsburgh Post-Gazette, in an editorial published two days after the hearing, observed: “By refusing to attend, DEP merely confirms its own arrogance in the minds of some, divides Pennsylvanians further and encourages the suspicion that the agency may be not only a poor enforcer of regulations but also too cowardly to face its critics.”
The DEP had scheduled and then cancelled a meeting with 11 organizations that focus upon water issues. Bloom says the DEP cancelled the meeting because it wouldn’t discuss anything if representatives from Clean Water Action, one of the nation’s largest and most effective environmental groups, were present. No meetings have been scheduled since the November request.

        Like Scroggins, Bloom, and many others, the media have also found recent DEP information policies to be difficult and frustrating. CNN reporter Erica Fink says DEP refused several requests for interviews. To get any information “required a visit to the regional DEP office [in Williamsport, Pa.], which had to be scheduled weeks in advance” and the information was “largely in legal and technical language.”

        The Times-Tribune of Scranton, Pa., had requested the DEP to provide records that could disclose water contamination from fracking operations of natural gas companies. The DEP, reported Laura Legere, “repeatedly argued in court filings . . . that it does not count how many determination letters it issues, track where they are kept in its files or maintain its records in a way that would allow a comprehensive search for the letters, so there is no way to assess the completeness of the released documents.” The Pennsylvania Commonwealth Court in July 2012, almost 11 months after Legere and her newspaper first requested DEP records, ruled the DEP must provide that information; the DEP, after the Court rejected its argument for reconsideration, eventually complied. Judge Anne E. Covery, in writing the court’s majority opinion, dismissed DEP’s argument that getting the requested data was burdensome. “[T]he burden on DEP comes not from some vast array of documents requested by Legere,” wrote Judge Covery, “but from DEP’s method of tracking its records.” The court determined that “an agency’s failure to maintain the files in a way necessary to meet its obligations under the RTKL [Right to Know Law] should not be held against the requestor. To so hold would permit an agency to avoid its obligations under the RTKL simply by failing to orderly maintain its records.” The failure to maintain records in an easily searchable method continues to allow the DEP to withhold public information from the public by burying the requested data within piles of irrelevant documents, most of which need interpretation from scientists.

      Eric Shirk, Gov. Corbett’s director of communications, and Kevin Sunday, DEP deputy press secretary, did not return several phone calls inquiring about DEP public disclosure policies.

        [Dr. Brasch is an award-winning journalist, a syndicated columnist, radio network commentator, author of 17 books. His latest book is Fracking Pennsylvania, available at amazon.com, greeleyandstone.com, or your local bookstore.]