Bureaucrats have been known to hide important information from the public, but every once and a while an agency does something so outrageous it blows your mind. The most recent example comes courtesy of the Bay Area Air Quality Management District, which is supposed to protect us from air pollution. By law, the district must make its records about gross polluters available to the public. But in a recent decision, air district officials actually asked a longtime polluter to sue them so that they could withhold vital information from the City of Berkeley and a group of environmental activists.
The bewildering decision came in the case of Pacific Steel Casting, a large steel foundry in West Berkeley that for decades has been repeatedly sued, fined, and criticized for spewing toxic chemicals over nearby residential neighborhoods and schools. In December 2005, Pacific Steel Casting agreed to submit an "Odor-Management Plan" to the air district as part of a settlement in a legal case. The management plan was supposed to detail the foundry's proposal to curtail toxic emissions. It took Pacific Steel Casting nearly three years to complete the plan, and the company didn't submit the final draft to the district until last October. Disclosure of the plan became even more urgent after a USA Today report, based on data from the US Environmental Protection Agency, said last fall that three schools not far from the foundry had some of the worst air quality in the nation. The report cited Pacific Steel Casting as one of the reasons.
About three weeks after the foundry submitted its plan to the air district, Berkeley Mayor Tom Bates officially requested a copy through the California Public Records Act, court filings show. The law requires public agencies to make their records available to the public, unless there is a specific exemption. The most common exemption is employee personnel records, which are protected by law.
But after getting Bates' request, district officials made a strange move. They contacted Pacific Steel Casting and asked whether the company viewed its plan as a "trade secret." Under the Public Records Act, a government agency can withhold trade secrets from disclosure. Not surprisingly, Pacific Steel Casting, which has long been defensive about its business practices, responded that its plan was indeed a trade secret, court filings show. "In fact, the company claimed the whole document was a trade secret," said James Wheaton, an Oakland-based attorney who is one of the foremost experts on open records laws in California.
Air district officials then told Bates about the foundry's trade secrets claim, records show. After the mayor said the city still wanted a copy of the plan, air district officials went back to the foundry and invited the steel company to sue them to stop them from releasing it. It was an unusual move. Wheaton said he could find no other precedent in case law in which a public agency had asked to be sued so that it wouldn't have to release public records. However, he told Eco Watch last week that he learned in the past few months that an increasing number of public agencies around the state are now using this same tactic. And indeed, Pacific Steel Casting promptly sued the air district to prevent disclosure of the odor-management plan.
Bates' involvement in the case is also a bit odd. Bates, you see, sits on the air district's board of directors, and is currently the board secretary. That begs the question: Was Bates in on the air district's attempts to thwart the Public Records Act? Did he ask for the steel foundry's plan knowing that the air district would then invite the steel company to sue, thereby allowing the air district to keep the plan secret? Those questions will have to remain unanswered for now because Bates did not return two phone calls seeking comment for this story. The air district's chief counsel, Susan Adams, also did not return a phone call.
As for Wheaton, he became involved in the case when a Berkeley grassroots group, Healthy Air Coalition, asked for a copy of the foundry's emissions plan early last month. The air district responded that it couldn't release the document because it had been sued, adding that its hands were tied as long as the litigation was pending. By all indications, that may be a very long time, because neither the steel company nor the air district has displayed any urgency in getting the suit resolved. As a result, Healthy Air Coalition turned to Wheaton and his First Amendment Project for help. Wheaton agreed to take the case and promptly sued the air district for allegedly violating the state public records law.
Wheaton says that under the law, the air district should have made its own decision as to whether it can keep the foundry's emissions plan under wraps. It's improper, he said, for the district to invite a court to intervene. He pointed to a 1986 appellate ruling in which the Santa Rosa Press Democrat requested public records from the City of Santa Rosa, and instead of handing the documents over, the city sued the newspaper, effectively asking the court to make a decision as to whether the records should be disclosed. The court promptly sided with the newspaper, saying the city had to decide on its own whether the requested documents were exempt. "A public agency simply can't delegate it's decision to a court," Wheaton explained.
It's entirely possible that parts of the foundry's emissions plan constitute trade secrets and thus are not public records. But it's hard to believe that the entire thing is one big trade secret. In Pacific Steel Casting's own court filings, for example, the company admits that the plan includes a list of odor complaints from neighbors. Obviously, those should be made public. But it's even more important that we find out what steps the foundry is taking to curb emissions, and whether the air district is living up to its responsibilities, especially in light of Pacific Steel Casting's troubled history.
Clearly, the air district should have reviewed the plan in its entirety and decided on its own which parts of it are legitimate trade secrets and which aren't. In fact, the Public Records Act requires public agencies to redact portions of documents that are not subject to disclosure so that the rest of the document can be released.
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