Attorney General: DNREC violated FOIA law

The state's environmental regulatory agency violated Delaware's open records law in an ongoing saga over crude oil shipments made by the Delaware City Refinery.

Attorney General Matt Denn's office ruled that DNREC violated the Freedom of Information Act by failing to properly respond to the Delaware Audubon Society's 2016 request for records pertaining to shipments that potentially violated state rules.

Delaware's FOIA law gives state agencies 15 days to either provide access to the records sought, deny the request or advise that additional time is needed. 

But it took the Delaware Department of Natural Resources and Environmental Control nearly a year to answer the Delaware Audubon Society. And even then, the state agency turned over only three of 1,300 documents.

"What they did send was such garbage that I almost laughed at it," said Mark Martell, who filed the FOIA request on the Audubon's behalf. "It was basically non-responsive."

Martell said the environmental group is now debating whether to file a lawsuit seeking damages.

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The ruling handed down by Chief Deputy Attorney General LaKresha S. Roberts last week is the latest chapter in a convoluted tale that began in late 2015. That's when Martell, the Audubon's secretary and conservation chair, filed a FOIA request with DNREC seeking records pertaining to the Delaware City Refinery's pollution discharge permit.

The agency released those documents about six months later – along with a cache of emails between officials with DNREC, the Delaware Department of Justice and former Gov. Jack Markell's office that were inadvertently sent to Martell.

Those emails – sent between the agencies in September and November 2015 –publically revealed for the first time that refinery owner PBF Energy had violated a 2013 state order barring the shipment of crude oil by barge beyond an approved site in New Jersey.

After receiving those documents last summer, Martell sought to have his initial FOIA request extended to include additional emails between the state agencies sent from December 2015 through June 2016.

DNREC initially said it lost that request and asked Martell to submit a new one. DNREC then billed the Audubon $75 in November 2016 but turned over no additional documents, leading to the environmental group sharing its findings with The News Journal.

A story published by The News Journal in December detailed how the state ultimately took no action against the refinery for making what PBF Energy at that time claimed was a "one-time" shipment that reportedly arrived at the Philadelphia Energy Solutions Refinery in the fall of 2013.

Just days before that article was published, the refinery informed DNREC and the Delaware Department of Justice that it actually had made multiple shipments to third-parties in 2014. DNREC later discovered those shipments totaled 17 barges that were sent to three destinations.

DNREC issued a $150,000 fine to the Delaware City Refinery in March for making those shipments, concealing them from the state and misrepresenting how many had occurred once confronted by state regulators.

In April, the refinery filed an appeal of that penalty that is still pending before the state Environmental Appeals Board.

Yet it was not until June – after the Audubon filed a complaint with the Attorney General's office – that DNREC released additional records sought by Martell's FOIA request. The agency ultimately handed over just three documents, claiming exemptions related to attorney-client privilege and the agency's ongoing legal fight with the refinery prevented the release of any further records.

DNREC officials did not immediately respond to a request for comment on Monday.

But in a June 30 email to both Roberts and the Audubon, Deputy Attorney General Dirk Durnstein, who represents DNREC, claimed the lengthy delay was created by Martell's "overly broad" FOIA request, which required the agency and the state justice department to review documents page by page.

"This case exemplifies serious flaws in the current FOIA process," Durnstein wrote, adding that DNREC and DOJ "lack the resources to respond to requests of this magnitude."

DNREC officials claimed they told Martell that additional time would be needed.

But Roberts noted in her opinion that the state agency failed to produce any evidence that such communication had occurred, that DNREC ever gave Martell an adequate reason for the delay or provided him with a "good faith estimate" of how much additional time would be needed.

"DNREC bears the burden of proof," she wrote. "Based upon this record, DNREC has failed to satisfy its burden."

Contact business reporter Scott Goss at (302) 324-2281, sgoss@delawareonline.com or on Twitter @ScottGossDel.