Despite pressure from state officials, a citizen advisory board of the Wyoming Department of Environmental Quality refused last week to endorse an agency initiative to charge fees for some public records.
Officials from the DEQ and Wyoming Attorney General’s office implied during a public meeting Friday that the board had no choice but to support the rule, but board members — appointed by the governor — said that mandate conflicted with their role as defenders of the public interest.
Citizen advisory boards for each of the DEQ’s three main divisions — land, water and air quality — must each recommend the adoption of any new agency rule before implementation. That includes a rule being adopted by state government agencies to charge for public records that require significant staff time to compile. While the land and water division advisory boards have lent their support to the rule, the Air Quality Advisory Board declined to do so for the second time on Friday at a meeting in Laramie.
Board members postponed a vote on the rule after first criticizing both the idea of charging for records and the rule-making process, saying they felt pressured to recommend the rule change.
“I feel I’m speaking for the public … in this stack of comments we’ve received from the public there’s not one single comment in support of this,” said Diane Hulme, a board-member and energy research director at the University of Wyoming.
“It is the agency that is in support of it,” she said.
Hulme was referring to public comments gathered by the DEQ about the proposed rule. Commenters, many of whom were associated with environmental groups, opposed the change. The potentially high costs of records requests could be restrictive for the nonprofit environmental groups that often make them, opponents said.
At a meeting in December the advisory board voted 2-1 against the change, according to a report in the Casper Star-Tribune. But two board members were missing from that meeting, and DEQ officials said Friday they would need a majority of the board to vote on recommending or rejecting the rule.
The board’s refusal to support the rule change would put the DEQ in a difficult legal position, agency officials told board members Friday. The Department of Administration & Information, a separate state agency, wrote the rule for all state agencies and they are required to adopt it.
“We have advised DEQ to incorporate this rule … because we do not believe it has the authority to deviate from A&I’s uniform rule,” said Allison Kvien, an AG’s office attorney who represents the Air Quality Division. Officials were unclear what would happen if the advisory board refused to recommend the rule’s adoption — as it would appear to bring the DEQ’s rulemaking statutes into conflict with the government-wide rule from A&I.
Officials asked the board to either recommend the rule’s passage or provide legal justification such as that it violates Wyoming’s Environmental Quality Act.
But Kvien said the AG’s office has already determined the rule does not violate any agency rules.
Board members pushed back on calls to help the DEQ out of its legal quandary.
“When somebody puts me in a corner I kind of bristle my neck a little bit, and that’s what’s being done here is putting us in a corner and saying ‘you will,’” said Douglas Vickery, a rancher from Daniel.
Others asked why the committee was being asked for a vote at all if the department had to enact the rule.
“If my vote doesn’t count why the hell am I voting?” asked Dr. Klaus Hanson, a UW German professor and member of the Laramie City Council.
But despite the suggestion of inevitability from Kvien, it appeared the DEQ was unsure how to proceed without a positive recommendation from the advisory board.
“We are here today because the statute directs us to do rule making in this way and the Legislature did not provide an alternative route for this particular rule,” said Gina Thompson, a DEQ administrator.
Charging the public for public records
The rule would allow DEQ to estimate the amount of time staff would spend completing an electronic records request and to charge the requestor if the total passed $180. Agency officials and rule opponents agreed that only a small percentage of public records requests would reach that number. The most common example used at Friday’s meeting was the time an agency employee might spend reviewing emails for information that was not public before releasing requested communications.
But rule opponents worried that those were exactly the kinds of records that were often the most necessary and enlightening. For a recent dispute over a proposed coal mine the Powder River Basin Resource Council requested hundreds of pages of communications between government officials and coal company Ramaco Carbon, PRBRC attorney Shannon Anderson told board members. Agency officials cited a request from the Sierra Club, for which around 7,000 emails had to be reviewed.
Records requests of that magnitude are rarer than requests for air quality data and compliance reports, which the agency is working to make available online anyway, but they’re often the most telling for the public interest, Anderson said.
Unlike in other state statutes and many federal agency rules, there is no category created for exemption from the fees for public interest organizations, academic research or the media.
“It’s not available to the public except through a records request that we would have to pay for” if the rule passed, Anderson said. “We don’t make [records requests] to make the DEQ busy, to make sure they can’t do other work, we make these requests in the public interest.”
It is often within such lengthy records requests of electronic communications that watchdog agencies and public interest groups find evidence of agency wrongdoing or neglect, said board member Hulme.
“The dirt is mostly in the emails,” she said.
DEQ officials distributed a list of 39 other state agencies and boards that have adopted or proposed the rules, ranging from the Governor’s office to the Board of Acupuncture and Board of Chiropractic Examiners. But Anderson argued the DEQ’s mission to protect the public by regulating environmental quality makes it distinct.
“It’s different than any other state agency,” Anderson said. “The public is your stakeholders, that is who you’re responsible to, that is who you have to provide this information to.”
Conversely, Anderson noted that although the rule is designed to reimburse the salary of employees who spend time reviewing electronic records, the money from the fees goes into the state’s general fund, not the DEQ’s budget.
DEQ officials say A&I wrote the rule in response to a law passed by the Wyoming Legislature in 2014. “The Legislature has said this is the way to do it,” said Nancy Vehr, the Air Quality Division Director.
But the Legislature’s directive was far from prescriptive. The bill cited by the DEQ in its response to public comments is 2014’s Senate File 67. The bill was sponsored by the Legislature’s management council and covered various aspects of rulemaking under the title “Administrative rules-streamlining.”
Only the bill’s last paragraph deals with public records requests, directing A&I to adopt “uniform rules” for state agencies establishing “fees, costs and charges for inspection, copies and production of public records.” The bill does not dictate the rates A&I should use to charge a fee for public records, whether some requestors should get waivers, which if any types of records should be exempted or any of the other questions raised by rule objectors and the board.
Those decisions were made by A&I through the rules making process, DEQ wrote in its response to public comments. The DEQ response noted A&I could have charged for all records and not just those that agencies reached a certain cost threshold compiling.
“After receiving public comment, A&I ultimately settled on creating an accommodating $180 cost threshold,” the response to comments said.
Bill opponents argued A&I had largely ignored the public’s wishes in crafting the rule, however. “The public was definitely against the A&I rule,” said Mary Flanderka with the Wyoming Outdoor Council. “The folks for it were all the administrators or the directors of the agencies.”
“I don’t believe that A&I listened to those comments” from dissenters, Flanderka said. She suggested the Air Quality Division Board should vote not to recommend the rules, and force them to be sent back to A&I for more consideration.
But Kvien, with the Wyoming AG’s office, told board members their vote didn’t carry that authority. “A&I will not be forced to rewrite its rule because one state agency is having trouble adopting it,” she said.
DEQ spokesman Keith Guille said on Monday the Air Quality Advisory Board had not yet scheduled its vote on the matter.
If the board does vote to recommend passage, the rule will then go before another governor-appointed board — the Environmental Quality Council.
Officials said it was unclear what would happen if either board voted against the rule. “I don’t know if I have an answer for that,” Guille said.
On other rules, Guille said, the citizen boards have been able to recommend changes to rules. “Sometimes they will come back to us and recommend those changes and we make those but in this case it’s a little different,” he said, again citing lawmakers’ backing. “It’s a legislative mandate.”
Kvien, the AG’s office attorney, said the boards wouldn’t be able to vote no without legal backing.
“If anybody votes against it hopefully they’ll provide a legal reason for doing so,” Kvien told WyoFile following Friday’s meeting.
But reached on Monday, Hanson, the German professor and city councilman, continued to reject the idea that the board had such narrow choices. “I don’t vote on things that I don’t have a choice on,” he said. “That’s not the way Democracy works quite frankly.”
Hanson said he hadn’t decided on his vote yet, but was tired of the perceived strong-arming. “If they don’t come up with some kind of a compromise on this matter I’ll keep voting against it I guess,” he said. “Until they override us on it.”
As DEQ attempts to push the new rules through, the Legislature’s Corporations, Elections and Political Subdivisions Committee is gearing up for a broad review of Wyoming’s public records’ statutes. The propriety of charging fees are among the questions they intend to ask, said Senate committee chairman Cale Case (R-Lander).
“My guess is no one is setting fees to be obstinate,” Case said, “but we will still look at the reasonableness of them.”
Case was skeptical about the idea that a fee could be used to cover a public employee’s salary.
“I don’t know if you can recover their salary from a public records request,” he said, “like if it wasn’t for the records request you wouldn’t have to pay the salary [anyways].”