THE BLOG
09/12/2014 05:14 pm ET Updated Nov 12, 2014

A Bill to Regulate Oil Refineries Also Threatens Public Access Rights

All legislators support government transparency in the abstract. But when it comes to the specifics of lawmaking, public access rights are the first casualty of the political process. Case in point: SB 1300, which has been approved by the California Legislature and is now on Governor Jerry Brown's desk, awaiting his signature.

Ostensibly a bill to strengthen safety regulation of oil refineries, SB 1300 would eviscerate the state's freedom of information law, the "Public Records Act."

The original version of this legislation required oil companies to file reports on scheduled shutdowns, typically for maintenance, of their refinery facilities. So far, no problem. Then came last-minute amendments, backed by organized labor as well as oil companies, that give oil companies de facto control over all decisions about what information the public can see. (Hint: not much).

The final version of SB 1300, as sent to Governor Brown, will establish a toxic precedent for other regulated industries and interest groups to keep the public permanently in the dark about their activities. Hopefully, Brown will veto the bill.

Some specifics... Current law allows government agencies in California to deny PRA requests for records submitted by corporations that contain  "trade secrets": basically, confidential business information that gives a corporation a competitive advantage over its rivals.

But SB 1300 allows refinery owners to designate virtually any information at all a "trade secret," regardless of whether it qualifies legally as a trade secret. SB 1300 then requires state agencies to deny PRA requests for that information, even if the agency thinks the requested records are not trade secrets.

It gets worse. Under SB 1300, if I file a PRA request for information submitted to the state by a refinery, the refinery will have the option of filing suit to block disclosure (irrespective of whether the agency wishes to disclose the records), in which case the refinery must file its suit against me, the requester, not just the state agency. This forces me -- and bear in mind that I may have had no intention (and no financial resources) to engage in litigation -- to hire my own lawyer and defend the PRA request in court.

I think it's safe to say that no one will ever file a PRA request for refinery information, once it becomes known that a mere request may thrust the requester involuntarily into a costly legal battle against oil companies. But just to be sure no one even contemplates filing a PRA request, the last-minute amendments to SB 1300 also provide that the requester, if she loses the PRA suit, will have to pay, in addition to her own legal fees, the fees of the oil company's lawyers.

Under current law, a PRA requester may be liable for an agency's legal fees only if the requester's suit is "clearly frivolous," a standard that, by design, provides substantial protection to requesters acting in good faith. But under SB 1300 that protection is taken away. A requester would be on the hook for the oil company's legal fees merely for losing her PRA case.

This double-whammy will bankrupt any PRA requester, except, perhaps, another oil company willing to risk hundreds of thousands of dollars in legal fees to get access to a competitor's information. Ordinary citizens certainly won't be able take this risk. News media certainly won't take this risk. The PRA will simply be a dead letter so far as oil company records on refineries are concerned.

Some may say these changes to existing law, while terrible, are not such a big deal since they only curtail public access to information about oil refineries. (This presumably is the view of organized labor, which cynically backs SB 1300 after getting a special carve-out for refineries' employment and financial data that unions want).

Try telling that to the families who live downwind of refineries. But more than that, SB 1300 establishes a template for how to gut the PRA one economic and political sector at a time. First it's information from oil companies; next it will be information about schools or about law enforcement or about water supplies.

SB 1300 creates a dangerous precedent for other industries and special interests to follow. Brown should veto the bill.

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Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.