Sustained Outrage

So much for Chemical Safety Board transparency

When last we left the U.S. Chemical Safety Board, President Obama had pushed out chairman Rafael Moure-Eraso, and some other board members were making a lot of noise about the need for more transparency at the agency.

Fast forward to more recent events, and here’s what Government Executive reports has happened:

The Chemical Safety Board, still struggling with vacancies as it seeks stability following the forced resignation of its chairman in March, divided sharply last Thursday over an unusual procedural move that empowered the interim chairman.

Engler_RichardLRBoard member Rick Engler, Government Executive has learned, on Friday sent the staff a note, saying the board had voted to designate him the “Board Member Delegated Interim Executive and Administrative Authority in accordance with CSB Board Order 003,” and that he looked forward to “working collegially with my fellow board members and staff.”

… But critics, some from labor unions, say Engler’s special board vote to make himself acting chairman violated transparency rules and accords him too much power at a time when all await Senate confirmation of President Obama’s nomination for permanent CSB chairwoman, Vanessa Sutherland. Board member Mark Griffon’s five-year term also expires June 24.

Only two board members participated in Thursday’s vote, and it came in spite of an attempt by board member Manny Ehrlich to postpone it. Ehrlich, whose back ailment prevented his presence at the vote for acting chairman, on June 8 had sent the CSB associate general counsel a proposal for an interim sharing of power between him and Engler, saying the situation was unprecedented.

Ehrlich’s proposal attempted to “calendar” the vote, or delay it for a future public meeting. But sources familiar with the proceedings, who spoke on condition of anonymity, said board members Engler and Griffon, lacking a three-person quorum, conducted an “urgent” vote by email, and, rather than waiting for the required five days, ran it only briefly by the general counsel’s office before announcing results to staff.

The vote also removed a 180-day expiration date that was part of Board Order 003, meaning Engler’s appointment as acting chair now goes “in perpetuity” if the two remaining board members deadlock on any vote.

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Obama rule includes oil-train secrecy

Oil Train Rules

In this Feb. 17, 2015 file photo, crew members walk near the scene of a train derailment near Mount Carbon, W.Va.   (AP Photo/Chris Tilley, File)

 As another community — this one in North Dakota — deals with the aftermath of a crude oil train derailment and fire, it’s worth looking back at the recent announcement of the Obama administration’s new rules aimed at preventing these incidents.

As Curtis Tate at McClatchy explained, there are a lot of questions about the administration’s approach:

… It is far from the final word on efforts to reduce the risk of catastrophic derailments, such as the one that killed 47 people in Lac-Mégantic, Quebec, nearly two years ago. And industry and environmental groups are bracing for a court fight over portions of the new regulations that they don’t like.

Most of the current tank car fleet that doesn’t meet the new requirements will be allowed to carry ethanol and some types of crude oil for eight more years. Environmental groups and some lawmakers objected Friday to the extended timeline.

It will be two years before the Energy and Transportation departments complete a study on the properties of crude oil and how they affect the way it reacts in derailments. While the rail industry supports the new tank car standard, it opposes the requirement for an electronic braking system on certain trains.

Also important, though, is another report from Curtis Tate, which detailed how the Obama administration — despite its claims to be transparent with the public and the press — has buried a major secrecy provision in this new rule.

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Journalism groups call on Obama for transparency

Barack Obama

President Obama may believe that his is the most transparent administration ever, but it’s tough to find many journalists who agree. The latest call for this administration to live up to its rhetoric on transparency comes from a huge group of journalism and good-government organizations:

Thirty-eight journalism and open government groups today called on President Obama to stop practices in federal agencies that prevent important information from getting to the public.

The national organizations sent a letter to Obama today urging changes to policies that constrict information flow to the public, including prohibiting journalists from communicating with staff without going through public information offices, requiring government PIOs to vet interview questions and monitoring interviews between journalists and sources.

“The practices have become more and more pervasive throughout America, preventing information from getting to the public in an accurate and timely matter,” said David Cuillier, president of the Society of Professional Journalists. “The president pledged to be the most transparent in history. He can start by ending these practices now.”

The letter, posted here, says:

Over the past two decades, public agencies have increasingly prohibited staff from communicating with journalists unless they go through public affairs offices or through political appointees. This trend has been especially pronounced in the federal government. We consider these restrictions a form of censorship — an attempt to control what the public is allowed to see and hear.

The stifling of free expression is happening despite your pledge on your first day in office to bring “a new era of openness” to federal government – and the subsequent executive orders and directives which were supposed to bring such openness about.

It goes on:

Recent research has indicated the problem is getting worse throughout the nation, particularly at the federal level. Journalists are reporting that most federal agencies prohibit their employees from communicating with the press unless the bosses have public relations staffers sitting in on the conversations. Contact is often blocked completely. When public affairs officers speak, even about routine public matters, they often do so confidentially in spite of having the title “spokesperson.” Reporters seeking interviews are expected to seek permission, often providing questions in advance. Delays can stretch for days, longer than most deadlines allow. Public affairs officers might send their own written responses of slick non-answers. Agencies hold on-background press conferences with unnamed officials, on a not-for-attribution basis.

In many cases, this is clearly being done to control what information journalists – and the audience they serve – have access to. A survey found 40 percent of public affairs officers admitted they blocked certain reporters because they did not like what they wrote.

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Chemical Safety Board in turmoil – again

The U.S. Chemical Safety Board is under fire from all sides — again — and it appears that inner turmoil is making it even harder for this small government agency to do its terribly important job.

Yesterday, a House of Representatives committee released a report and heard testimony that detailed problems at the CSB. Headlines were using words like “disarray” to describe the situation.  The Hill described the basic situation this way:

 House Oversight Committee Chairman Darrell Issa (R-Calif.) called Thursday for the chairman of the Chemical Safety Board (CSB) to resign, an opinion shared by a bipartisan group of members on the oversight panel.

Moure FinalThe call came during a hearing on allegations of dysfunctional management by Chairman Rafael Moure-Eraso and accusations that he and his staff sought to silence whistleblowers and others who disagreed with him.

“You really need to ask whether or not in your last year, you can really undo the damage of your first five,” Issa said.

Rep. Gerry Connolly (D-Va.) said he had “serious questions about your fitness to hold your job.”

“It is clear that there are serious management problems that need to be addressed,” said Rep. Elijah Cummings (Ga.), the panel’s top Democrat.

At the center of the hearing were allegations from CSB staff that an employee of the Office of Special Counsel had told top CSB officials the identifies of whistleblowers in 2012. The Environmental Protection Agency’s Office of the Inspector General, which also has authority over the CSB, investigated the issue, but agency staff did not provide requested materials.

The basic allegations are covered in this report, written by the staff of the Republican-controlled committee. There’s also additional testimony from Moure-Eraso here and from board member Mark Griffon here.  Former board member Beth Rosenberg, who resigned in late May over problems inside the agency, testified about what the “chilled atmosphere” at the CSB and about what she said was a “lack of accountability” and a “lack of transparency” at the board. Testimony described a toxic atmosphere among board members and top agency staff. Rosenberg put it this way:

There are no opportunities for staff and board members to discuss issues openly. Those whose opinions differed from senior leadership or the chair are marginalized and vilified. At the CSB, disagreement is seen as disloyalty. Criticism is not welcome and staff fear retaliation.

Testimony and the GOP staff report raise serious issues — things like the potential outing of agency whistle-blowers, major votes and decisions all being made in secret instead of in public meetings, and stonewalling an Inspector General’s investigation.  Issa, the Republican committee chairman, said:

Rather than addressing experienced investigators’ concerns about agency mismanagement, Chemical Safety and Hazard Investigation Board leadership has stifled internal debate and retaliated against agency whistleblowers.  Mismanagement under the current CSB leadership has created a hostile work environment, distracting the Board from fulfilling its core mission to investigate industrial accidents and issue incident safety reports in a timely manner.  Real reform is needed at the CSB to restore collegiality, staff morale, and the integrity of the agency.

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Secrecy in the W.Va. spill bill

Coal Water Pollution

Listening last night to the House of Delegates discuss the latest version of SB 373 — the legislative response to the Jan. 9 Elk River chemical spill — I was struck by House Judiciary Chairman Tim Manchin’s mention of the importance of citizen involvement in protecting our state’s drinking water supplies:

That’s one of the things we felt was critical, was to get the citizenry involved in this.

Of course, Chairman Manchin is right. The problem is, the way the bill is currently written, lawmakers are making it far harder than necessary for members of the public to actually get the sort of information they need to be part of the discussion.

The latest version of the bill contains three different and new exemptions to the state’s Freedom of Information Act. The stated purpose of those provisions, according to lawmakers, is to protect against hypothetical terrorist attacks aimed at tanks of dangerous chemicals located near our water supplies.

In one place, the current bill requires the state Department of Environmental Protection to provide each water system a compiled list of contaminants in each of the zone of critical concern near drinking water intakes. The bill explains that this “will enable those entities [the water companies] to possess a compiled list of the types, quantities, characteristics, and locations of all of the known potential contaminants within the zone of critical concern for each public water supply.” But, the language also says:

If any of the submitted information is requested to be kept confidential and good cause is found to grant the request, for reasons of security or other legitimate public interest concern, the protected information shall be redacted from public view and kept confidential, and it shall not be subject to public release in response to a Freedom of Information Act request under made under chapter twenty-nine-b of this code.

One problem there is that part about “good cause is found … for reasons of security or other legitimate public concern.”

That is a much weaker standard to meet to allow this secrecy than the one established under our state’s FOIA and many, many state Supreme Court rulings interpreting that Act.

The other problem is that line that says “any of the submitted information” can be found to deserve confidential protection. Lawmakers are making out as if they’re only trying to protect the exactly location of chemical storage tanks. This bill goes much further than that. And besides, exact locations of tanks can already be protected. We’ll get to how that works in a minute.

Another FOIA exemption created by the spill bill comes in a section that would required water utilities to consider that DEP list of contaminants when they are updating their source water protection plants. It reads like this:

The completed or updated plan for each affected plant, at a minimum, shall include the following … A list of the potential sources of significant contamination contained within the zone of critical concern as provided by the Department of Environmental Protection, the Bureau for Public Health and the Division of Homeland Security and Emergency Management. The exact location of the contaminants within the zone of critical concern is not subject to public disclosure in response to a Freedom of Information Act request under article one, chapter twenty-nine-b of this code. However, the location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility. In the event of a chemical spill, release or related emergency, information pertaining to any spill or release of contaminant shall be immediately disseminated to any emergency responders responding to the site of a spill or release, and the general public shall be promptly notified in the event of a chemical spill, release or related emergency.

And the third FOIA exemption is contained in a section that is, ironically, titled “Public access to information.”  It starts out just fine, with this language:

The public shall have access to all documents and information submitted to the agency, subject to the limitations contained in the state Freedom of Information Act, article one, chapter twenty-nine-b of this code.

But then it says:

A list of the potential sources of significant contamination contained within the zone of critical concern as provided by the Department of Environmental Protection, the Bureau for Public Health and the Division of Homeland Security and Emergency Management may be disclosed. The exact location of the contaminants within the zone of critical concern is not subject to public disclosure in response to a Freedom of Information Act request under article one, chapter twenty-nine-b of this code. However, the location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility. In the event of a chemical spill, release or related emergency, information pertaining to any spill or release of contaminant shall be immediately disseminated to any emergency responders responding to the site of a spill or release, and the general public shall be promptly notified in the event of a chemical spill, release or related emergency.

If you’re thinking this is a bit of overkill, and that these provisions are confusing and perhaps even contradictory, you’re right. That’s why it’s important to remember, first of all, that our current FOIA already has 8 exemptions that cover homeland security information. They were added to the FOIA after the 2001 terrorist attacks in New York and Washington, D.C.

The other thing is this: Current federal and state law already allows companies to ensure confidential treatment of the exact locations of their chemical storage tanks. That provision is part of the federal Emergency Planning and Community Right to Know Act. Section 324 of that law clearly says that, when chemical inventories are being reported to regulators and emergency responders:

Upon request by an owner or operator of a facility subject to the requirements of section 312, the State emergency response commission and the appropriate local emergency planning committee shall withhold from disclosure under this section the location of any specific chemical required by section 312(d)(2) to be continued in an inventory form as tier II information.

So if the point here is to protect the exact location of chemical inventories, that’s already in federal law. The language in the bill adds needless secrecy provisions, weakens the standard for keeping information confidential, and broadens — beyond just specific tank location — the sorts of information that companies like Freedom Industry would be able to hide from the public. The bill passed the House last night, and now goes back to the Senate.

Thornsbury, troopers, and government transparency

Judge Michael Thornsbury

In this July 2004 file photo, Mingo County Circuit Court Judge Michael Thornsbury  stands in a stairwell of the Mingo County Courthouse, in Williamson, W.Va. Federal prosecutors on Thursday, Aug 15, 2013, charged Judge Thornsbury with abusing his power and commandeering a southern West Virginia grand jury in a failed attempt to frame a romantic rival for crimes he didn’t commit. (AP Photo via Charleston Gazette, by Chris Dorst)

Among the more troubling details alleged in the new federal grand jury indictment of Mingo Circuit Judge Michael Thornsbury is the accusation that a West Virginia State Trooper was essentially part of the judge’s plot to frame the husband of a secretary who had broken off an affair with Judge Thornsbury.

As the Gazette’s Kate White described in this story:

The indictment also alleges Thornsbury enlisted State Police Trooper Brandon Moore, who worked in the Williamson detachment, to file a criminal complaint against Robert Woodruff, accusing him of stealing scrap metal from his employer.

Woodruff worked at a coal preparation plant, where mined coal was processed before being shipped. There, he removed scrap metal that had fallen in with the coal.

When Thornsbury found that Woodruff’s supervisors allowed him to salvage drill bits, among other scraps that could be repurposed, he allegedly persuaded Moore to file a criminal complaint against him.

Moore — who was named West Virginia State Police “Trooper of the Year” in 2010 — resisted at first because he knew Woodruff’s bosses allowed him to take the metal, according to prosecutors. But the trooper eventually gave in to the judge and filed the complaint, the indictment alleges.

The indictment also alleges that Trooper Moore lied to a grand jury that Judge Thornsbury had put together as a tool in his effort to go after Woodruff.

Continue reading…

Fixing West Virginia’s FOIA

It appears likely that efforts are  may be dead to fix the huge hole the state Supreme Court has punched into our state’s Freedom of Information Act in the name of disgraced former Justice Spike Maynard and his buddy, former Massey Energy CEO Don Blankenship.

Yesterday afternoon, the House Judiciary Committee pulled from its agenda HB3114, a bipartisan bill that aimed — at least in part — to rewrite the state’s definition of “public record” so that it wasn’t narrowed by the November 2009 ruling in the case of Associated Press v. Canterbury.  Committee Chairman Tim Miley, D-Harrison, acted at least in part in response to concerns raised by the West Virginia Press Association about other parts of the bill.

It’s too bad, because there is consensus among leadership in both parties that the FOIA needs fixed. There’s a Democratic leadership bill, HB 2172, and a Republican leadership bill,  HB 2884, that contain similar language, to ensure that whether or not a document is a “public record” subject to release under FOIA considers “the content or context” of whether it relates to the public’s business.

Last year, similar legislation was killed by the Senate Judiciary Committee, after passing the House. But even in the House, there was some controversy. House Minority Leader Tim Armstead, R-Kanawha, dared to try to expand state government transparency by narrowing the exemption for internal government records and by requiring requiring public reports of the results of criminal investigations. Both of those amendments were successfully blocked by the House’s Democratic leadership.

In his bill this year, Armstead essentially moved to get rid of Exemption 8 altogether.  He told me yesterday:

I’d rather take out that exemption all the way. I just think that, truthfully, when you’re talking about taxpayers’ money being spent related to public questions and issues the public has a right to know.

By way of background, Exemption 8 covers “internal memoranda or letters received or prepared by any public body.”  For many years, state agencies tried to use this as a catch-all exemption to keep from releasing  variety of records — until the Gazette went to court and won a favorable Supreme Court ruling that narrowed the exemption. Here’s what the court said:

W.Va. Code, 29B-1-4(8) [1977], which exempts from disclosure “internal memoranda or letters received or prepared by any public body” specifically exempts from disclosure only those written internal government communications consisting of advice, opinions and recommendations which reflect a public body’s deliberative, decision-making process; written advice, opinions and recommendations from one public body to another; and written advice, opinions and recommendations to a public body from outside consultants or experts obtained during the public body’s deliberative, decision-making process. W. Va. Code, 29B-1-4(8) [1977] does not exempt from disclosure written communications between a public body and private persons or entities where such communications do not consist of advice, opinions or recommendations to the public body from outside consultants or experts obtained during the public body’s deliberative, decision-making process.

In the last few years, the Tomblin administration has tried to revive the use of this exemption. For example, the governor’s office refused to release correspondence with the oil and gas industry about pending rules and legislation, arguing that industry lobbyists had essentially acted as the state’s consultants in crafting such policies. More recently, the Tomblin administration cited this exemption in its efforts to keep secret an embarrassing report about the state’s broadband expansion efforts.

So there’s obviously a need to address problems with Exemption 8. The Republican House leader’s answer is to get rid of the exemption altogether — and open up more of our government’s activities to public scrutiny. But when a bipartisan bill was drawn up, in an effort to get the legislation moving somehow, this was the resulting language for Exemption 8 in HB 3114:

Internal or external communications received by any member or employee of the public body expressing opinions and mental impressions intended to facilitate deliberation of a matter pending before the public body’s deliberative decision-making process: Provided, That those communications received after a public body’s decision shall be disclosed.

That’s far broader than what is currently on the books, and certainly a much broader exemption than allowed under the Supreme Court’s Daily Gazette Co. v. Development Office ruling. Basically, any communications received by a government agency could be withheld.

So the Press Association understandably objected, and the legislation was pulled from the Judiciary Committee’s agenda. I’m told it’s likely dead for the session. Maybe that’s for the best. If lawmakers are intent on crafting FOIA legislation that makes government more secretive — rather than more transparent — then the public is probably better off with no FOIA bills coming out of the statehouse.

But it’s also true that lawmakers on both sides agree that the definition of “public record” needs to be fixed following the Maynard-Blankenship ruling. So there is consensus on that, and it’s not too late for lawmakers to do something with that consensus.

UPDATED: In floor speeches early this afternoon, lawmakers indicated that they continue to work on some sort of legislation … stay tuned …

Secret meetings, Sept. 14, 2012

This week’s issue of The State Register contains two meetings that violate the public notice requirements of West Virginia’s open meetings law.

The agencies involved? The Division of Natural Resources’ Whitewater Commission and the State Board of Sanitarians.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Secret meetings, Aug. 10, 2012

Today’s issue of The State Register contains one meeting that violated the public notice requirements of West Virginia’s open meetings law. The agency involved? The Board of Respiratory Care.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Secret meetings, Aug. 3, 2012

Three different agencies have meetings listed in this week’s State Register that violate the public notice requirement of West Virginia’s open meetings law. The agencies are: The Monongalia County Solid Waste Authority, the Division of Motor Vehicles Dealer Advisory Board, and the Pierpont Community College Finance/Audit Committee.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.