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Department of Environmental Protection v. Delaware Riverkeeper Network

Commonwealth Court of Pennsylvania

April 10, 2015

Department of Environmental Protection, Petitioner
Delaware Riverkeeper Network, Respondent

Argued March 12, 2015

Appealed from No. AP 2014-0880. State Agency: Office of Open Records.

Dennis A. Whitaker, Chief Counsel, Harrisburg, for petitioner.

Aaron J. Stemplewicz and Corinne M. Bell, Bristol, for respondent.



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The Department of Environmental Protection (DEP) petitions this Court for review of the Pennsylvania Office of Open Record's (OOR) July 11, 2014 Final Determination granting the Delaware Riverkeeper Network's (DRN) appeal from

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DEP's denial of DRN's Right-to-Know Law (RTKL)[1] request for sample data underlying DEP's Technologically-Enhanced Naturally-Occurring Radioactive Material (TENORM) Study. The issues for this Court's review are whether the sample data is exempt from disclosure as: (1) records of a noncriminal investigation under Section 708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(17), and/or (2) internal, predecisional deliberations under Section 708(b)(10)(i)(A) of the RTKL, 65 P.S. § 67.708(b)(10)(i)(A). Upon review, we reverse.

" In 2013, [DEP's] Bureau of Radiation Protection (Bureau) began a comprehensive[, ongoing TENORM S]tudy evaluating potential radiation exposure to workers, the public, and the environment resulting from certain materials generated by oil and gas exploration and production (oil and gas production) activities in Pennsylvania." DEP Br. at 7; see also Reproduced Record (R.R.) at 38a-39a. On April 10, 2014, DRN made the following RTKL request (Request) to DEP:

The following records dated from 2013 to present relating to [DEP]'s TENORM [S]tudy are requested:
All sample data including data acquired at specialized Marcellus Shale treatment operations and on-site water treatment and recycling units, the exact location of all sample sites (including the address, GPS coordinates, and facility name if applicable), information regarding the type of beneficial use sites that have been and will be sampled, and the production data and dates for the well pads that have been and will be sampled. The study's expected completion date is also requested along with information regarding the peer review process including information regarding the selection and composition of the peer review panel and any opportunities for public input. Additionally, the 1994 [Naturally-occurring radioactive material (NORM)] Study 'Characterization and Disposal Options for Oil Field Waste in Pennsylvania' is requested.

R.R. at 21a. By April 10, 2014 letter, DEP acknowledged the Request and invoked a 30-day extension to respond.[2] See R.R. at 22a-23a. On May 14, 2014, DEP granted the Request in part and denied it in part. DEP granted the Request " with respect to 294 pages of material describing the TENORM [S]tudy and the status of the [S]tudy, as well as the requested 1994 study." R.R. at 24a. DEP notified DRN that additional TENORM study information was available at portal/ related topics/20349/radiation protection/986697.[3] See R.R. at 25a. DEP denied

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the Request regarding the underlying sample data as exempt from disclosure under Section 708(b) of the RTKL, inter alia, because the data constitutes noncriminal investigative records and internal predecisional deliberations. See R.R. at 25a-26a. DEP added that " [f]ield work performed as part of this study during 2013 included 184 site visits at 114 locations and the analysis of 1,000 samples. Given the scope and nature of this the sample data collected to date is voluminous." R.R. at 25a.

DRN appealed to OOR on June 2, 2014, arguing that the exemptions do not apply because the records are purely factual, were not deliberative and merely reflect information-gathering for study purposes rather than for conducting a noncriminal investigation. See R.R. at 16a. OOR invited the parties to supplement the record. DEP filed a response on June 19, 2014, to which was attached the Attestation of Bureau Director/Certified Health Physicist David Allard (Allard) and an Exception and Privilege Log (Log) reflecting that DEP took 3,495 samples/surveys resulting in 57,308 pages of records. See R.R. at 37a-43a. DRN replied on July 2, 2014. On July 11, 2014, without holding a hearing, OOR issued its Final Determination granting DRN's appeal and ordering DEP to provide the responsive records within 30 days. DEP appealed to this Court.[4]

" The RTKL was designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions." Office of the Governor v. Raffle, 65 A.3d 1105, 1107 n.1 (Pa. Cmwlth. 2013). Accordingly, Section 301(a) of the RTKL requires that " [a] Commonwealth agency shall provide public records in accordance with [the RTKL]." 65 P.S. § 67.301(a).

" Whether [the] sought after information constitutes a 'public record' is a preliminary, threshold issue that must be decided before reaching the question of whether any exceptions under Section 708 of the RTKL apply." Office of the Governor v. Bari, 20 A.3d 634, 640 (Pa. Cmwlth. 2011). " Public record" is defined as " [a] record, including a financial record, of a Commonwealth . . . agency that: (1) is not exempt under [S]ection 708 [of the RTKL]; (2) is not exempt from being disclosed under any other [f]ederal or [s]tate law or regulation or judicial order or decree; or (3) is not protected by a privilege." 65 P.S. § 67.102. In order for the requested information to be a " public record," it " must constitute a 'record' under the RTKL[.]" Bari, 20 A.3d at 640.

Section 102 of the RTKL defines " [r]ecord" as " [i]nformation, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction,

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business or activity of the agency." 65 P.S. § 67.102. There is no dispute in this case that the sampling data DRN requested from DEP was created, received and/or retained in connection with DEP's TENORM Study activity and, therefore, constitutes records. Whether they are public records depends upon whether they are exempt under Section 708(b) of the RTKL.

" The burden of proving that a record of a Commonwealth agency . . . is exempt from public access shall be on the Commonwealth agency . . . receiving a request by a preponderance of the evidence." 65 P.S. § 67.708(a)(1). " Although the general provisions of the [RTKL] must be liberally construed to effect its objects, the exemptions from disclosure under Section 708(b) [of the RTKL] must be narrowly construed." Hous. Auth. of the City of Pittsburgh v. Van Osdol, 40 A.3d 209, 215 (Pa. Cmwlth. 2012).

DEP argues that OOR erred by ordering DEP to provide sample data gathered for its TENORM Study because it is exempt from disclosure as records of a noncriminal investigation under Section 708(b)(17) of the RTKL.

Section 708(b)(17) of the RTKL exempts from public access:
A record of an agency relating to a noncriminal investigation, including:
. . . .
(ii) Investigative materials, notes, ...

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