Jim Boyle May 6, 2014, 6:20am


The Commonwealth Court of Pennsylvania reversed a determination made by the Office of Open Records (OOR) and denied a Pittsburgh-based website's "Right to Know" request for access to hazardous chemical information.

In an opinion authored by Commonwealth Judge Robert Simpson and published May 5, the court ruled that the request did not meet the criteria for public access and that the OOR failed to apply the proper exceptions to the Right to Know law.

According to court documents, William Heltzel, an investigative reporter with PublicSource, filed a request for access to Pennsylvania's Tier II hazardous chemical inventory database. The Department of Labor & Industry, which manages the records, initially denied the request based on the Right to Know law's exceptions for public safety and physical security.

The OOR reversed the decision on appeal, stating that the Emergency Planning and Community Right-to-Know Act (EPCRA) deemed the information public record. During arguments, lawyers for the Department of Labor & Industry offered affidavits from public safety experts who said that allowing open public access to the Tier II database would create an opportunity for potential criminals to take advantage of the information.

Under EPCRA, the court documents say, companies managing hazardous chemicals disclose the "precise location of the facility, the amount of chemicals and hazard potential, the storage mechanisms and conditions, the chemical status and particulars about security and contact information."

Heltzel countered that nondisclosure of the hazardous chemical information also constituted a health risk because the public would otherwise be unaware of potential dangers in their communities.

The Commonwealth Court affirmed the Department of Labor & Industry's argument, adding that EPCRA's ruling that the Tier II chemical database as public record carried some provisions with it. The information is available to the public, but with several conditions. Requests for access must pertain to inspection reports for specific sites that are accessible during normal business hours. Heltzel seeks access to the full database, constituting more than 11,000 chemical facilities in the state.

In any case, those conditions are moot, according to the opinion published by Simpson, because Heltzel filed his request through the Right to Know law, and not the EPCRA. By using the Right to Know law's mechanisms, the request is ultimately superceded by the security exceptions.

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