An update to our last article – Timely Access to Critical Information:
The DEQ has changed its story. DPMC wants to know why legal action was required to get what we trust is an accurate story.
In response to DPMC’s April 7 request for public records related to construction of utility lines through streams and wetlands across the state, the Virginia Department of Environmental Quality (DEQ) claimed a major delay was required “[d]ue to the complex nature of your request.” Instead of meeting the normal 5-work-day deadline, DEQ said on April 10th that it needed until April 25th to supply the information.
DPMC objected that DEQ’s stated reason for delay was not reasonable and didn’t meet the legal requirement. Because the Freedom of Information Act (FOIA) request covered only records that supported a regulatory decision made the day we sent our request, we contended that the information should be – must be – readily available and easily supplied.
The DEQ decided there was a “reasonable assurance” that pipelines and other utility lines installed in our waters in accordance the Corps of Engineers’ Nationwide 12 permit would meet all state water quality standards and DEQ should be able to explain the bases for that judgement. Since the records DPMC had acquired during the public notice period for this same action included no such evidence, we felt it was important to know what data or analyses had been used when the approval was issued.
As DPMC’s David Sligh wrote on April 10: “either records were used as support for this decision or they were not – there should be no work involved in determining ‘whether they are available.’ If they are not at-hand, then they were clearly not used. I do not seek records the staff may search out and present as part of the basis for the decision when they were not used as such.”
When DEQ failed to respond to that April 10 note, DPMC decided action was appropriate to uphold the principle that the public is indeed entitled to have “ready access” to information we own that reveals how our government is working. On April 12, 2017 DPMC delivered a Petition for Writ of Mandamus and Injunctive Relief to DEQ Director David Paylor and the Department’s FOIA coordinator, demanding that DEQ meet the legal requirement that it provide records within five work-days after a request. The Petition was served on the DEQ officials in advance of filing in the state Circuit Court for the City of Richmond.
Within about 3 hours after DPMC served the papers at DEQ’s headquarters office, Assistant Attorney General David Grandis called DPMC counsel Tammy Belinsky and the “complexity” explanation had vanished. Grandis said some of the records would be supplied by the deadline and, as he recounted in an email the next day, others would take longer because “several of the DEQ programmatic personnel are on leave this week and next. DEQ is without access to their files in their absence.”
DPMC has now received some of the records sought. So, the question remains, why did it take aggressive action to get a straight answer and the documents immediately available from DEQ? As David Sligh wrote, the complexity excuse “seems to have become an automatic one from the Department and to bear no relationship to the actual circumstances or nature of the requests.” DPMC understands that practical concerns will sometimes justify delays and that DEQ FOIA staff deals with many requests, including many from DPMC.
However, we won’t relent in the effort to understand DEQ’s actions and insist they are supported by science and law. That effort requires good and timely information from the Department.