David M. Jacobson wanted a transcript of a public
hearing conducted by the Pennsylvania Department of Environmental Protection
(DEP), May 2. The public meeting was to allow persons to discuss a proposal by
National Gypsum and En-Tire Logistics to build a tire burner plant in Union
County that would burn about 100 million pounds of shredded tires each year,
and convert part of that to electricity to benefit National Gypsum, with the
rest taken to landfills. Jacobson is a member of Organizations United for the
Environment (OUE), which objects to the plant because of the amount of
pollutants that would be sent into the atmosphere.
The DEP was
happy to provide the transcript. All Jacobson had to do was drive the 25 miles
from his home in Lewisburg to the Williamsport regional office between 8 a.m.
and 4 p.m., Monday through Friday. The transcript was not available online, nor
would DEP send him a print copy.
He could view
the transcript only at the regional office. He could take notes. But he
couldn't copy it, photograph it, or scan it because, said Dan Spadoni, community
relations co-ordinator, the transcript was copyrighted. State law allows
individuals to copy, scan, and photograph public documents, and to request
copies. Agencies, if requested, must provide documents by electronic means if
possible, and may not charge more than 25 cents per page for a printed copy.
Jacobson says
Spadoni, who had conducted the hearing,
told him the DEP "has a master contract" with Sargent's Court Reporting Service
of Johnstown; Spadoni had requested Sargent's to record the public meeting.
However, Spadoni claimed he didn't know any of the details of that contract.
The DEP has two
levels of transcript payments--a higher payment by DEP to Sargent's, which
allows DEP to publish the transcripts and make them available to anyone who
wishes a copy; and a lower fee, where Sargent's retains all rights. For the May
2 meeting, DEP paid the lower fee.
Sargent's, which
has a good reputation for accurate transcriptions, quoted Jacobson a fee of
$192.85 for the 70 page transcript--about $2.75 a page.
Jacobson then called Spadoni back. "It didn't set well
with me that DEP would give up ownership to that transcript," says Jacobson.
Spadoni abruptly responded, says Jacobson, "That's the way it works." Spadoni
did not return several calls to explain reasons for the Department's policies.
Sargent's
provided a copy of the transcript to the press at no charge--"It's at my
discretion," said Sally Sargent, owner of the company. It later provided a copy
by email at no charge to Jacobson because, "We decided to make a special
exception and give you a free copy." On the cover of both transcripts is the
warning: "Access to this email by anyone other than the intended addressee
is unauthorized." The next day, Sargent's told Jacobson he could distribute the
transcript without restriction. The issue, however, is that the DEP--not
Sargent's--established the system that restricted free access to what should be
a public document.
Terry
Mutchler, executive director of the state's Office of Open Records (OOR), says
in the five years since the creation of the OOR she has "never had a case in
which an agency" contracted with a private company to take transcripts of a
public meeting, and then, with the agency's approval, copyright the
transcripts, limit its distribution, and charge fees higher than the state
requirements for a public agency. "If this case comes to us," she says, "we'll
have to examine it."
Jacobson
could file a Right-to-Know request. From filing to final determination by the
OOR, the process could take almost three months. Even if the OOR rules against
a public agency, it can take the issue into court, using taxpayer-funded
attorneys to challenge the Right-to-Know request, and can appeal to the state
supreme court unfavorable decisions from county and state appeals courts.
The delay in being able to get proposals for building
or waivers of rules is also a problem. Individuals who wish to view a company's
proposal must first give DEP a two week notice, and then go to the DEP office
during regular business hours. Those proposals are not online. Although DEP has
posted a lot of information online, DEP told Jacobson, president of American
Technology Partners, it will be 10 years before DEP completes plans to put all
company proposals online. Jacobson says he asked several persons at DEP why the
files were not available, and the most common answer was that the proposals
were too many pages to convert files on the web. "If the proposals are too
long," says Jacobson, "why not just split the large file into multiple smaller
files; there are even free programs that will automatically split large files."
He wonders, "why are we wasting money paying for the storage space for all
these documents?"
Vera Scroggins and Iris Marie Bloom, both of whom are
active in researching and analyzing oil and gas company filings and DEP documents,
also question the DEP's reluctance to scan documents and make them available
online in an easy to search and understand manner.
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