Save the Pine Bush Volunteers Win Victory for Open Records

by Tom Ellis

ALBANY, NY: For many years I have watched state agencies abuse our rights as citizens, taxpayers, residents, and interested parties in regulatory proceedings. The NYS Energy Research and Development Authority (ERDA) and NYS Department of Environmental Conservation (DEC) are particularly guilty of limiting public access to public information.

For example, ERDA held six public hearings in February and March 2014 on the proposed long range state energy plan. I attended the first hearing in Albany but none of the others. Seeing as probably no one other than ERDA staff attended all the hearings, I quickly requested that ERDA post on-line the transcripts of all the hearings so we could all see what others had said, learn from the other participants, and submit more informed comments before the comment period ended. ERDA refused my requests to post the transcripts on line during the three months public comments were taken. It was not a year later in mid-2015 that ERDA posted the transcripts and then only after another request from me.

Think about it. Who can attend all the hearings or would want to? My experience is that some of the people who take the time to prepare testimony, travel to and speak at public hearings, deliver excellent testimony — these are people we can learn a great deal from. If the testimony from hearings we do not attend is concealed, what good is it to us? Who benefits? Not the public. ERDA would rather have a mostly closed process than one in which people can read submitted comments in real time or nearly so. It should be easy for a state agency to quickly post on line the transcripts of public hearings and other comments submitted, most of which are submitted digitally today.

The NYS Department of Environmental Conservation (DEC) operates the same way as ERDA, generally collecting hearing testimony and other comments without quickly sharing it. Perhaps DEC shares it with some people but not others.

Save the Pine Bush members won a potentially important and far reaching victory for open government during May. With the help of Robert Freeman, the Freedom of Information officer of the State of New York, SPB members were able to force DEC to post on line the transcripts of four public hearings DEC held on it’s proposed 2017 State Environmental Quality Review Act Amendments and other comments submitted on the matter, over DEC’s initial statement that it would withhold this information during its review of SEQRA.

Tim Truscott then contacted Mr. Freeman who responded:

“For better or worse, FOIL pertains to all government agency records and permits an agency to require that requests be made in writing. That being so, I believe that DEC may require that you seek the records at issue pursuant to a FOIL request. I note that the statement of legislative intent in FOIL indicates in part that agencies should make records available ‘wherever and whenever feasible.’ Therefore, if a record is clearly public and readily retrievable, there may be no valid reason for unnecessarily delaying disclosure. “

In a later [May 15] email, Mr Freeman wrote that “I have been informed that the transcripts of [DEC SEQRA] public hearings will likely be posted online sometime this week. Other comments will be available online soon after the record regarding the matter closes on May 19.”

Tim commented on Mr. Freeman’s email as follows: “My impression was that our request of DEC (posting the comments online) was something he [Mr. Freeman] had not encountered before, and he took great interest in it. If we keep making this same request concerning DEC hearings, posting hearing comments online in a timely fashion may become routine for them. If that happens, we will have accomplished a lot and made a significant contribution.”

This is really important. If, from now on, interested parties utilize the precedent established here, and, early on in any DEC proceeding, request the hearings transcripts and comments submitted be quickly posted on line, we will be in a position to see who all is participating, what they have said, know who our allies and adversaries are, build stronger coalitions, hold DEC to a much higher level of transparency and accountability, and perhaps be more effective advocates for our causes.

Tim added further thoughts: “While we, the citizens, benefit from knowing what others’ comments have been on an issue, our comments informed by others’ thoughts can therefore benefit DEC in its work. I believe in tapping into the collective wisdom of as many people as possible in solving problems. The way it is now, DEC kind of treats us like the enemy, or at least like a necessary evil.”



Published in June/July 2017 Newsletter
Save the Pine Bush Newsletter