It recently struck me that open government advocates are a pretty weird group. Last week was a big week for our community. Eight countries, including the United States, made formal written commitments to pursue the National Action Plans they each unveiled in the days leading up to the United Nations General Assembly in New York. Since then, 38 other countries have agreed to join them. But when I returned to D.C. from the NYC fanfare, it struck me that really only supernerds (like me) get excited about the abstract concept of open government. It isn't tangible and evocative like a baby seal or a pink shirt-wearing woman with a bald head. It struck me that maybe I should take some time to try and tie that abstract concept to our everyday lives.
One recent compelling example of the power and importance of access to government records is the "Drilling Down" series by The New York Times. That series has raised new questions about natural gas drilling, which is expanding across the country and, specifically about hydraulic fracturing, or "fracking," which is driving this drilling boom. Fracking has taken the mid-Atlantic states by storm -- covering Pennsylvania, West Virginia and soon New York with drills creating natural gas wells that pock the states in numbers normally seen only in Louisiana and offshore.
The series has provided, among other things, new evidence that there may be a greater impact to underground aquifers and drinking water from fracking than had previously been acknowledged. Last year, ExxonMobil's CEO asserted in congressional testimony that "There have been over a million wells hydraulically fractured in the history of the industry and there is not one, not one, reported case of a freshwater aquifer having ever been contaminated from hydraulic fracturing. Not one." Without access to government information, and the serious investigative journalism of The New York Times, that might have been the end of the story.
It should come as no surprise that once the series started -- the oil and gas industry wasn't happy and began to fight back. Lobbyists were all over Capitol Hill (our friends on the Hill were telling us all about it) trying to challenge the paper's motivations, sourcing and anything else they could think of to undermine series.
The Keystone of the Investigation
Here's where the open government part comes in. Not only did the reporter, Ian Urbina, develop sources both inside and outside the federal and state government agencies regulating fracking, he also relied heavily on documents, often obtained through open record laws, to prove what he was learning and disprove that definitive congressional testimony. We at POGO understand the necessity of having those inside sources -- or whistleblowers -- to help guide investigators through the arcana of government regulation. However, it is the documentary evidence, especially when working with anonymous sources (and we believe they should almost always remain anonymous else they risk suffering the wrath of an unforgiving bureaucracy) that makes for a compelling and irrefutable investigation.
So, even though the series quoted various people challenging the Exxon CEO's statement to Congress, it was the documents that overcame industry's efforts to discredit criticism of fracking. For instance, Urbina used the Freedom of Information Act (FOIA) to uncover a 1987 Environmental Protection Agency (EPA) report that documented a case where "...fractures were created allowing migration of fracture fluid from the gas well to Mr. Parson's water well... This fracture fluid, along with natural gas was present in Mr. Parson's water, rendering it unusable."
Perhaps even more significant was that there were other incidents that were not available for review by government reviewers because they were sealed in legal settlements -- an enormous impediment to conducting oversight. This information could have helped EPA officials determine whether the incident at the Parsons well represented an anomaly or was part of a pattern.
"Very often damage claims against oil and gas operators are settled out of court, and information on known damage cases has often been sealed through agreements between landowners and oil companies," the EPA wrote. "This is typical practice, for instance, in Texas. In some cases, the records of well-publicized damage incidents are almost entirely unavailable for review. In addition to concealing the nature and size of any settlement entered into by the parties, impoundment curtails access to scientific and administrative documentation of the incident."
One of the strengths of the NYT's series was not only the journalism itself, but also the fact that the paper provided an online "document reader." Readers could go through thousands of pages of documents for themselves and see that the documents were collected through a variety of means: FOIA, press releases, state open records laws, good old-fashioned gumshoe searching through local government records, and leaks from insiders. Together, this mosaic of documents revealed a different story from what was being said publicly by industry and its largely weak-kneed government regulators.
Public Policy Impact
Despite the industry's best efforts to derail the momentum for public policy change because of the series, those documents were like kryptonite. This use of open government tools had a real impact: The EPA stepped up scrutiny of Pennsylvania rivers for radioactivity (happily their first results were "at or below" safe levels -- but as the NYT emphasized, ongoing monitoring is the key).
The EPA also joined the state of Pennsylvania to push drinking water facilities and waste treatment plants to more aggressively monitor for radioactivity the wastewater and biosolid sludge they were processing from fracking operations.
Internal emails leaked from the Energy Information Administration (EIA) proved to be perhaps the most controversial part of the series. Those emails revealed that a number of industry and government officials raised serious concerns about the "irrational exuberance" with which the oil and gas industry was suggesting how long gas wells can continue producing and how much money investors could make on these types of wells. One insider predicted an "Enron moment."
Industry and its defenders argued that because the original stories used redacted versions of those emails in order to protect sources, they were unfairly misrepresenting the whole story.
However, once the NYT's FOIA request for the emails was honored and the paper put the unredacted versions online, readers could judge for themselves. I agree with the NYT Public Editor that an intern probably should not have been described as "one official" as the NYT article did in one reference. However, as the NYT later explained, to protect anonymity of one of their sources, it was necessary to avoid any mention of that source having been a former intern. That decision in no way undermined the legitimacy of the story, and in the end, the NYT's publishing of the unredacted documents effectively silenced doubts about the validity of the paper's findings. Again, public policy was affected by the power of the information revealed in the series.
And that is the whole point of open government. Access to information is what allows us to ensure the government is doing its job protecting public health and safety -- from our drinking water to our investments. Maybe fracking is worth the risk. And if that's true, shouldn't the oil and gas industry want all records to be released to prove that point and defend themselves against unfair accusations? Whatever public policy issues are important to you, being able to access the information contained inside our government bodies is an essential part of our democracy.
Danielle Brian is POGO's Executive Director.
 This is a practice that should never occur. Government investigators should always be able to look at these sealed records to determine if there is a pattern of misconduct or a threat to public health and safety that is being shielded by legal settlements. This is an area where open government advocates still have our work cut out for us. (back up to the piece)