|Pure Waters Taking State Dept. of Health to Court
Seneca Lake Pure Waters Association Sues New York State Department of Health to Disclose Information Used to Prepare Its Assessment of Health Impacts
“You are entitled to your opinion. But you are not entitled to your own facts.”
― Daniel Patrick Moynihan
On September 13, 2013, the Seneca Lake Pure Waters Association (SLPWA) filed an action, pursuant to Article 78, to compel disclosure by the New York State Department of Health of documents related to Department’s review of the health impacts of high volume hydraulic fracturing (HVHF). SLPWA seeks the documents pursuant to a Freedom of Information Law request which was denied earlier this yearand also on appeal by the Department of Health (DOH).
The Freedom of Information Law (FOIL) allows persons who have received a denial of document access to commence a proceeding pursuant to Article 78 of the Civil Practice Law and Rules (CPLR). Article 78 is the section of the CPLR that establishes the procedure for challenging the determinations of government administrative agencies, public bodies or officers.
This health impact assessment has great public significance and relates to the impending decision Governor Cuomo will make on whether to allow HVHF in New York State. SLPWA seeks more information about the factual materials being reviewed by DOH than has been made publicly available.
SLPWA filed a FOIL request with the DOH on November 25, 2012, seeking records relating the public health impacts of hydraulic fracturing of the Marcellus and Utica shales. SLPWA sought these records to ascertain what factual information was being collected and reviewed by DOH and the instructions given to DOH staff regarding the DOH health impact study of hydraulic fracturing announced by the Commissioner of Environmental Conservation.
SLPWA’s request was denied in full by DOH on April 4, 2013, on the ground that the records sought constituted “exempt intra-agency or inter-agency records.” SLPWA appealed the DOH decision to deny access to relevant records to the DOH Records Access Officer on May 2, 2013. SLPWA’s appeal was denied in full by the DOH Records Access Officer on May 16, 2013 on the same ground.
SLPWA’s appeal letter to the Department stated, “Frankly, it is simply not credible that the on-going DOH study of health impacts for the RDSGEIS does not include any statistical or factual tabulations or data, instructions to staff that affect the public, or final DOH policy or determinations. Quite simply, scientists deal with factual information. If DOH is in actuality conducting a scientific review, the factual information they are considering and the instructions to staff regarding that consideration should be released to the public.”
“The Department of Health is conducting a review of the health impacts of HVHF, upon which the Department of Environmental Conservation will base its determination about going forward with hydraulic fracturing in New York. The underlying facts being used to conduct this review should be released to the public,” said Mary Anne Kowalski, SLPWA President. “Without having this information, there is no way to evaluate the Department’s review.”
Ed Przybylowicz, said, “In letters to Governor Cuomo SLPWA has urged that a comprehensive Health Impact Assessment (HIA), as recommended (in such situations) by the National Research Council be carried out before any decision on allowing HVHF in New York State is made. This is a very public process, strongly supported by the Concerned Health Professionals of NY. The State has chosen not to do this but is carrying out a health review which is being held from public view. SLPWA’s FOIL request which has now led to this court action is our demand on behalf of the members of our association and in fact, the public at large, that the public be part of the process that reviews the health impact of this heavy industrialized process on the residents of our region and state.”
SLPWA is being represented in this action by Rachel Treichler, Hammondsport, New York 14840. Ms. Treichler publishes a blog, “New York Water Law” covering legal developments relating to water in New York , http://nywaterlaw.com/