In a decision lawyers said has broad applicability for Pennsylvania open records law, the Commonwealth Court has ruled that the state Department of Environmental Protection may not deny requests for records related to water supply contamination from oil and gas drilling operations simply on the basis that it would be burdensome to search for them.
Michael Berry, a media law attorney with Levine Sullivan Koch & Schulz in Philadelphia, said the ruling applies to all state agencies and affirms the purpose of the state’s Right-to-Know Law.
“Agencies routinely deny a request on the grounds that they’re burdensome,” Berry said. “The Commonwealth Court has sent a clear message that agencies need to realize that they hold the public’s records and that the public is entitled to those records.
“This is a ringing endorsement of the principles underlying the Right-to-Know Law — that agencies work for the people and are accountable to the people. It seems to me that the court is saying quite clearly that agencies shouldn’t shirk their responsibilities to the public and simply not fulfill their obligations.”
In Commonwealth v. Legere, a unanimous three-judge panel affirmed a ruling by the state’s Office of Open Records, which had directed the DEP to turn over determination letters and orders issued pursuant to Section 208 of the Oil and Gas Act to a Scranton Times-Tribune reporter pursuant to the RTKL.
Section 208 authorizes the DEP to investigate reports of water contamination and, if it determines the contamination is the result of oil and gas drilling, order the responsible driller to replace the contaminated supply with an alternative water source.
Ivan S. DeVoren, an environmental and oil and gas lawyer in Houston-based Burleson’s Pittsburgh-area office, said the fact that these determinations and orders will now be available to the public is a positive for both citizens and the oil and gas industry alike.
According to DeVoren, in situations where the DEP investigates a claim of water contamination and determines that a driller need not take any additional action, the driller may never even know about it.
It’s in the oil and gas operators’ interest to know what impact they may be having on landowners, especially if those landowners are also leaseholders, he said.
Drillers “don’t want to be bad neighbors,” he said.
Under the Commonwealth Court’s ruling in Legere, oil and gas operators will now have access to that information, DeVoren said. According to Judge Anne E. Covey, who penned the opinion, the DEP had denied the request in part because the requested records were not kept in such a way that they could be easily searched for.
But Covey said that was not a good enough reason for a denial, because the requested documents clearly existed.
“There is simply nothing in the RTKL that authorizes an agency to refuse to search for and produce documents based on the contention it would be too burdensome to do so,” Covey said.
Covey was joined by Judges Bernard L. McGinley and Mary Hannah Leavitt.
In Legere, according to Covey, Times-Tribune reporter Laura Legere filed an RTKL request for “Act 223, Section 208 determination letters issued by the [DEP] since January 1, 2008, as well as the orders issued by [the DEP] to well operators in relation to those determination letters, as described in Section 208 of the Oil and Gas Act.”
The DEP partially granted the request with regard to some records but denied the request for Section 208 determination letters and orders on the grounds that it was not sufficiently specific, according to Covey.
“‘Your request for [Section] 208 determination letters issued since January 1, 2008, and the orders issued by [the DEP] to well operators in relation to those determination letters, fails to provide specific names, geographic locations, well or permit numbers, and/or complaint numbers,’” the DEP said in its response, according to Covey. “‘Absent this specific information, we have no systematic way to search for the records that you request. Namely, our files are not maintained in such a fashion that allows us to look for all Section 208 determination letters and corresponding orders without having the specific information identified above.’”
The DEP also said in its response that some of the requested records may be exempt under sections of the RTKL protecting personal identification information, complainant and noncriminal-investigative information, personal security information, internal predecisional deliberations, personal security information, attorney-client privilege and attorney-client work product, according to Covey.
The defendants appealed the denial to the OOR, which directed the DEP to turn over the records within 30 days, finding that Legere’s request was sufficiently specific and the DEP failed to show the records were exempt, Covey said.
The DEP appealed to the Commonwealth Court and Covey agreed with the OOR.
“There are no judgments to be made as to whether the documents are ‘related’ to the request,” Covey said. “The documents either are or are not Section 208 determination letters. The documents either are or are not orders issued by DEP arising from Section 208 determination letters. Legere’s request was clearly sufficiently specific, given that DEP provided some of the responsive records. The fact that Legere is requesting copies of ‘all’ of these ascertainable letters and orders does not render her request insufficiently specific.”
The DEP argued that the OOR should have considered the burden Legere’s request would place on the agency, according to Covey.
But Covey said the fact that a request is burdensome doesn’t necessarily make it overly broad.
“In the instant matter, Legere’s request is not overbroad, but instead seeks a clearly delineated group of documents,” Covey said. “In fact, the burden on DEP comes not from some vast array of documents requested by Legere, but from DEP’s method of tracking its records.”
According to Covey, a requestor should not be penalized for an agency’s failure to properly maintain its records.
“The fact that DEP does not catalogue or otherwise organize Section 208 determination letters or corresponding orders in a way that permits them to be easily located does not render the request overbroad,” Covey said.
The DEP argued that, under the RTKL, it was only required to make a good-faith effort to search for the requested records, but Covey said that provision refers to efforts to search for whether or not requested records exist, which was not at issue in this case.
Covey also agreed with the OOR that the DEP had failed to show how the requested records would potentially be exempt under the RTKL.
Covey rejected the OOR’s argument that it could not have determined the reasons why some records would be exempt without examining all of the records, saying the OOR has direct knowledge of the type of information contained within Section 208 determination letters.
“It should be noted that had DEP undertaken the search that it was required to perform to meet its obligations under the RTKL, it would have located the required records and would have been able to discern any applicable exemptions related to the specific records located at that time,” Covey said. “We will not reward DEP’s failure to timely adhere to the RTKL by granting it yet another opportunity to impede access to the records.”
A spokesman for the DEP said the agency is currently reviewing the opinion.
Legere’s attorney, Michael F. Cosgrove of Haggerty McDonnell & Hinton in Scranton, said he thought Covey’s opinion was “well reasoned.”
“It’s a good case for the openness of public records,” he said.
(Copies of the 12-page opinion in Commonwealth v. Legere, PICS No. 12-1421, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •