Noncriminal Investigation Exception Blocks access to DEP Radioactive Material Study of Gas and Oil drilling Materials.

The Commonwealth Court has again emphasized the breadth of the noncriminal investigation exception of the Right-to-Know Law (RTKL), 65 P.S. §67.708(b)(17). The Court held that the exception applied to a request for data collected by DEP. Dep’t of Envtl. Prot. v. Delaware Riverkeeper Network, 1373 C.D. 2014, 2015 WL 1587897, at *8 (Pa.Cmwlth. Apr. 10, 2015).

The case arose when the Delaware Riverkeeper Network (DRN) made a RTKL request for the sample data underlying the DEP’s Technologically-Enhanced Naturally-Occurring Radioactive Material (TENORM) Study. The data collected was evaluated by DEP to determine the potential radiation exposure resulting from materials generated in Pennsylvania’s oil and gas production. The records requested would have totaled 57,308 pages.

The Court invoked prior precedent, beginning with Dep’t of Health v. OOR, 4 A.3d 803 (Pa. Cmwlth. 2010), to conclude that any data collected during a detailed study resulting from the official powers of an agency cannot be disclosed under the RTKL. Under the Radiation Protection Act, the DEP was given the expressed authority to conduct the TENORM study. Given the mandate to monitor, control, and regulate radiation sources, DEP’s TENORM study constituted a noncriminal investigation. Thus, the data was exempt from disclosure and not a public record.

This decision, once again, shows the breadth of the noncriminal investigation exception. One wonders if the General Assembly envisioned such far-reaching effects and the types of records that would be forever shielded from public view.

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