If you need information about your facility, or any facility, from the DEP’s files, but are involved in litigation with the DEP, another “one to watch” is newly proposed legislation to amend provisions of the Open Public Records Act (OPRA). Generally, the OPRA allows access to public records that are required to be kept or maintained by the State or its agencies, departments and instrumentalities in the performance of whatever government function the agency is intended to serve. Senate Bill 1922 threatens to erode rights of public access where DEP is concerned by treating DEP as a class unto itself and, more significantly, creating classes of citizenry who are more entitled to public access than others.
According to findings of the Legislature, the DEP receives some 12,000 government records requests a year constituting 63 percent of record requests submitted to state agencies. And, despite the fact that the DEP staffs an office of records custodians to respond to such requests, the DEP has been complaining in the last few years that its resources are not sufficient to process its requests. In response, the Legislature has proposed a special surcharge against parties that submit requests to the DEP. The bill would allow the DEP to charge a fee of $25 per hour to ANYONE requesting information if it takes the DEP in excess of four hours to process the request. The fee would be charged for each hour after the fourth hour and is in addition to copying costs or other charges that might be assessed under the OPRA. If, however, you are outside the special categories of individuals seeking records for personal nonprofit reasons, charitable organizations or news media, you can be assessed the $25 fee after the first hour and for each hour thereafter.
If the DEP estimates the request will take an extended time to process, it will notify you of the estimated charge and may request a deposit of up to 50 percent of the estimated costs. Upon receipt of the deposit, the DEP then has 7 days to process the request and notify you of the actual time expended on the request and the duplication costs. Records will not be released until payment is made. If you are a party in litigation with the DEP in any state or federal or administrative court, and you or your attorneys or representatives submit a request for information related to such proceedings, the DEP can except such records from disclosure, even if the records are otherwise public records.
These changes hardly seem in the spirit of open access to government and they also can have some problematic practical effects. For example, if the DEP brings an administrative action against you for a permit violation, the local news media could obtain those records freely to make your violation the subject of a news story while you would be denied access to those same records. Similarly, there are any number of development deals and real estate transactions that hinge on the ability of purchasers to obtain liability protection, which is in turn dependent on the exercise of due diligence that at a minimum must include a review of the DEP’s files. The legislation would, in effect, charge such parties for doing what they must to comply with the law. The bill was introduced on June 9, 2008 and at least for now seems not to be moving. Whether it remains quiescent is yet to be seen.