SB 373′s secrecy provision

SB 373 reads like it hasn’t quite made up its mind about how involved it really wants the public to be in protecting our water. The final version of SB 373 still contains a problematic confidentiality provision:

The Department of Environmental Protection shall provide a copy of the compiled list of contaminants in each zone of critical concern to the affected public water system, the Bureau for Public Health, the Department of Environmental Protection and the Division of Homeland Security and Emergency Management. This will enable those entities 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. 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

In other words, as long as the DEP finds “good cause” to keep information about potential contaminants upstream of drinking water intakes confidential, then that information does not have to be disclosed to the public. As Ken Ward has pointed out, the state Freedom of Information Act (FOIA) mandates “maximum possible disclosure.” Several exemptions were introduced into the state FOIA after 9/11, which should be sufficient to keep sensitive information confidential. It is unclear why SB 373 was amended to give the DEP broad authority to determine that information is confidential based only on a showing of “public interest concern.”

This provision seems contradictory to an earlier section of SB 373, which mandates that all water utilities file Source Water Protection Plans by July 2016. The bill specifically states that, “Every effort shall be made to inform and engage the public, local governments, local emergency planners, local health departments and affected residents at all levels of the development of the protection plan.” How can the public make meaningful input into a source water protection plan if the DEP decides to exercise its authority to make information about potential contaminants confidential?

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