O’Malley Administration Continues Its Abuse of Maryland Public Information Act

The administration of Martin O’Malley continues to play politics with the Maryland Public Information Act and abuse the spirit of transparency for political purposes.
This week Norfolk Southern and CSX International, two large rail companies are suing the Maryland Department of the Environment to prevent the agency from releasing—via the Maryland Public Information Act—information of their shipments through the state.

The Maryland suit, triggered by a state Public Information Act request from McClatchy and the Associated Press, appears to be the first time a railroad has gone to court over the issue. 

Norfolk Southern, a major Eastern rail company based in Norfolk, Va., filed the suit in the Circuit Court for Baltimore City to seek a temporary restraining order and a permanent injunction to prevent the release of the information the two news organizations requested. 

The Maryland Department of the Environment had given the railroad until Thursday to challenge its decision to release the information. In a letter to McClatchy, the department wrote that it expected a similar lawsuit from CSX, a rival Eastern rail carrier… 

In May, following a series of derailments that involved crude oil from North Dakota’s Bakken shale region, the USDOT required rail companies to notify state emergency management officials about shipments of 1 million gallons or more of Bakken oil within state borders. 

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The notifications were intended primarily to help fire departments better prepare for potential derailments. Railroads asked state officials to sign confidentiality agreements–citing concerns about security and competition and initially, the USDOT advised states to comply. 

But in response to numerous state open-records requests, the department eventually conceded that no federal law protected the information from public disclosure.
According to the suit filed by Norfolk Southern, Thomas Levering, the director of emergency preparedness and planning for the Maryland Department of the Environment, signed such a confidentiality agreement May 28.

McClatchy filed a Public Information Act request for the information on June 10.
On June 13, the railroad received a letter from the office of Maryland Attorney General Douglas Gansler voiding the confidentiality agreement. It said Levering had “no legal authority” to sign the agreement and that it was in conflict with the state open records law. Gansler’s office declined to comment for this story.

On June 27, Norfolk Southern sent a letter objecting to the attorney general’s claims. The railroad argued that the crude oil shipment information enjoyed “mandatory protection” under state law because it contained “confidential commercial information.” 

The railroad also wrote that state law protects information that could “jeopardize the security of a facility or facilitate the planning of a terrorist attack.”

Contrast the environment department’s willingness to disclose information about crude oil shipments with the O’Malley controlled Public Service Commission’s denial of my request for BG&E and PEPCO’s renewable portfolio standard compliance reports detailing how they complied with O’Malley’s much ballyhooed renewable energy mandate.  The Public Service Commission refused to fulfill my request because it covered, “records that were filed confidentially because they contain confidential financial information.” 
The Maryland Department of the Environment does not have a sterling transparency record either.  The agency will release documents, yet charge exorbitant fees, essentially closing them off from public scrutiny.
It should no surprise that the O’Malley administration—especially friendly toward environmental special interests—would allow public disclosure of documents related to oil. 
However, it is an curious coincidence that this news breaks on the heels of O’Malley going against his environmental allies by voting for a temporary pier permit for Dominion Resources liquefied natural gas export facility at Cove Point in Calvert County.   According to the Washington Post, O’Malley was “brusque” and impatient during the Board of Public Works Meeting, and at one point nodded off to sleep.
Nor is Martin O’Malley above using public documents to punish his enemies, as, Attorney General Doug Gansler found out during the Democratic gubernatorial primary.  Gansler, who challenged O’Malley’s handpicked successor, Lt. Governor Anthony Brown, was the subject of the release of damaging state police records, which painted him in a negative light.  One veteran statehouse reporter wrote of the release, “it had the fingerprints of the O’Malley-Brown administration all over it.”
It you want public records that could damage a politically unflavored industry, or that could damage a political adversary, the O’Malley administration is more than willing to supply them.  If you want public documents that could put him or his policies in a negative light, forget about it.

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