On July 24, 2019 the Ohio Environmental Protection Agency adopted a rule for making public records requests to the Ohio State Emergency Response Commission (“SERC”) and Local Emergency Planning Committees (“LEPCs”) that will hamper the ability of individuals to ask for public information anonymously. This new rule (available here) targets Ohio residents and environmental stewards seeking answers for their community by stripping protections that give them security from personal retaliation. Furthermore, we believe this new rule may be in violation of Ohio’s Sunshine Laws and therefore illegal.
But first, some background…
The Ohio SERC grew out of the Emergency Planning and Community Right-to-Know Act of 1986 (“EPCRA”), a federal law designed to help communities plan for chemical emergencies. The EPCRA requires each state to appoint a SERC, which in turn establish LEPCs throughout the state. The SERC and LEPCs are required to gather inventory information from facilities handling hazardous chemicals, document instances of toxic releases from facilities, develop plans for emergency response, and disseminate information for the public. In order to fulfill its obligations under the EPCRA, Ohio enacted SB 367 of 1988, which established the Ohio SERC and required the SERC to make rules governing a variety of areas, including the manner in which to access records maintained by the Ohio SERC and its LEPCs.
More than 30 years later, the Ohio SERC’s adoption of O.A.C. § 3750-90-01, “Applying for access to information,” represents the first attempt to fulfill this mandate. In passing this rule, however, the SERC may have contravened Ohio’s broader Sunshine Law when it states:
“Any person who seeks access to information in the files of the commission or a committee shall submit a written application on a form provided by the commission or committee. The person also shall provide the person’s name and current mailing address on the application and may be requested by the commission or committee to provide basic demographic information on the form to assist in the evaluation of the information access provisions of this chapter.”
This requirement contradicts the mandates of the Ohio Sunshine Law:
“A public office or person responsible for public records may ask a requester to make the request in writing, may ask for the requester's identity, and may inquire about the intended use of the information requested, but may do so only after disclosing to the requester that a written request is not mandatory , that the requester may decline to reveal the requester’s identity or the intended use, and when a written request or disclosure of the identity or intended use would benefit the requester by enhancing the ability of the public office or person responsible for public records to identify, locate, or deliver the public records sought by the requester.”
While the rule does purport to contain protective measures to ensure anonymity of requesters to the public, it explicitly does not allow an individual to shield their name SERC employees, members, or employees of the Ohio environmental protection agency.
There are a number of good reasons why an individual requesting information would want their identity withheld from SERC’s membership, which includes representatives from petroleum refiners and marketers, chemical manufacturers, and other industry representatives. Fair Shake often hears from individuals desiring to request information anonymously for fear of retribution from these powerful industrial influences. For instance, those employed by a facility subject to SERC oversight might want to request information anonymously for fear of workplace retaliation. By its very terms, SERC’s new sunshine rule allows industry actors to uncover the identities of those who are reviewing public information about them. Given the danger posed to some community members, the new regulation may well have the effect of discouraging certain classes of individuals from requesting such information altogether.
The issuance of the new rule may be appealed to the Environmental Review Appeals Commission on or before August 23, 2019. If you have questions about sunshine laws as they relate to your environmental rights, contact Fair Shake for a consultation.