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DRN challenged PADEP denial of a Right to Know Law RE: study of TENORM produced by oil and gas extraction

Delaware Riverkeeper Network challenged Pennsylvania Department of Environmental Protection’s (PADEP) denial of a Right to Know Law request filed by the organization for access to PADEP’s study of technologically enhanced radioactive material (TENORM) produced by oil and gas extraction.  We appealed the denial to the Office of Open Records, arguing that the records are purely factual not deliberative, and not part of an inquiry or official probe, simply part of an agency study.
Remarkably, PADEP argued that the premature release of the data would lead to “…erroneous and/or misleading characterizations of the levels and effects of NORM and/or TENORM associated with [Oil and Gas] exploration and production…”   PADEP went on to assert that the release of the information would “likely result in a substantial and demonstrable risk of physical harm” resulting from the public knowing the location and quantity of the radioactive materials.

But the Office of Open Records stated in its determination that “In essence, the Department’s argument attempts to equate the risk of radioactive material itself to the release of information about radioactive material.  The risks associated with exposure to radioactive material is not the same as any risk associated with releasing information about radioactive material”. Decision at 10.

The Office agreed with our arguments related to the other exemptions claimed as well and ordered PADEP to provide all responsive records requested by DRN within 30 days (August 11, 2014).  Under the law, the Order can be appealed by DEP to Commonwealth Court.