Stone Walls and Open Records: State DEQ rebuffs Oklahoma Department of Labor request for information on asbestos work

OKLAHOMA CITY – A disagreement over the reach of the state’s Open Records Act has notched up. The matter involves the staff and leadership of the Oklahoma Department of Labor, on the one hand, and the staff and leadership of the state Department of Environmental Quality (DEQ), on the other.

Several months ago, Commissioner of Labor Mark Costello began asking DEQ, on an informal basis through staff and in direct communications, for information concerning possible duplication of services and oversight touching asbestos between the two agencies. After staff for the agencies met, a gathering mutually described as “unproductive,” an exchange of letters and phone calls ensued.

For several weeks, DEQ refused to respond to Costello’s requests, transmitted through his agency’s asbestos unit and Don A. Schooler, Labor’s general counsel. This week, DEQ provided a small portion of the requested records, which did not satisfy ODOL leadership.

DEQ officials did not provide to Labor legal authority for the non-responsiveness, but Schooler and others at Labor interpreted references to “the Governor’s General Counsel” as an indication that DEQ officials believe they are exempt from the inter-agency request under the “executive deliberation privilege” created last year in the case of Vandelay Entertainment, LLC dba The Lost Ogle v. Mary Fallin, ex. Rel., 2014 OK 109.

In Vandelay, the state High Court held that Gov. Fallin possesses, in Schooler’s summation, “a common law privilege to withhold” records that an on-line news and information source (The Lost Ogle), had requested.

However, justices took care to limit the reach of the governor’s “inherent power” to withhold some information from public scrutiny, saying the subject matter must be “so ultimately connected and bound up with a branch’s function that the right to define and regulate the subject matter naturally and logically belongs to the branch of government” (i.e. the Executive Branch).

The Labor (“ODOL”) staff has insisted it has sought “no records that quality for exemption under the executive deliberative privilege.” Schooler, the ODOL lawyer, asked that the records be provided by the close of business on Monday (February 2).

Earlier, in a Jan. 23 letter to the head of DEQ, 36 days after DEQ did not reply to Labor’s “informal” request, Schooler provided citations supporting the Labor Department’s request for the information. He said it appeared that DEQ was “at best, delaying production and, at worst, ignoring the request all together.” Schooler asserted both the delay and DEQ’s silence were “in violation of the Open Records Act” (51 O.S. sec24A.5).

Schooler cited the explicit language in the “OR” act, as it is often referenced, as follows: “All records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction during business hours.” The act provides that “A public body must provide prompt, reasonable access to its records but may establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions.”

The transcript of a telephone message, left the afternoon of Jan. 23 for Schooler by Secretary of Energy & Environment Michael Teague said, in relevant part, “DEQ is not going to respond to your open records request.”

Teague said in his phone message that DEQ officials had consulted with “the Governor’s General Counsel to make sure that we’re on solid ground on that.”

Teague expressed preference for (another) joint meeting with DEQ and DOL. He is a member of Gov. Fallin’s executive Cabinet, responsible for several areas of state government.

In response to this writer’s request, Schooler provided the transcript of Teague’s message to CapitolBeatOK.

After informal steps failed, Diana Jones, director of the OSHA (Occupational Safety and Health) arm at state Labor, had formally requested the documents in a December 17, 2014 letter to Scott Thompson, executive director of DEQ. She wrote that her agency had not received a response to “an informal request for the documents” and, “therefore makes this open records request pursuant to the Oklahoma Open Records Act.”

In sketch form, these events all began on September 17, 2014, when staff from the two agencies met to discuss oversight of asbestos abatement contractors. Agency staffers were, Schooler said, “considering the potential existence of duplicative, regulatory efforts.”

On October 27, Commissioner Costello, accompanied by Jones, met with Secretary Teague and his Deputy, Tyler Powell. In that meeting, Schooler said Teague “recognized the overlap of the agencies’ programs and was open to exploring the efficacy of consolidating the programs under” the Labor Department. Rather than submitting an OR request at that time, at Teague’s request Labor made an informal request for the records in question.

Subsequently, the informal written request went from Labor to DEQ on October 29. On the same day, DEQ submitted a request to Labor for records concernign the OSAGE power plan in Ponca City. Labor’s Asbestos Division responded to that request immediately.

On November 6, DEQ Executive Directir Scott Thompson told Jones that his agency would not respond to the informal request.

Then, on Dec, 17, Labor’s Jones submitted “a formal open records request” for the records from DEQ. After a series of letters and phone calls late last year and in the first four weeks of this year, on Friday (January 30) DEQ General Counsel Martha Peniston provided Schooler with 12 of the 42 requested records.

On the same day, Secretary Teague wrote Costello to ask, among other things, for a meeting. However, the Labor Commissioner believes DEQ should produce all the records as a sign of good faith before further discussions.