July 30, 2007



TO: Doug Schneider

FROM: Camille S. Jobin-Davis, Assistant Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear Mr. Schneider:

We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request made to the Broome County Legislature for a copy of its Comprehensive Emergency Response Plan.

You wrote that your efforts to obtain a copy of the Plan have been unsuccessful, indicating briefly, as follows: in January of 2007, representatives of the League of Women Voters of Broome and Tioga Counties were ostensibly permitted to inspect a paper copy of the plan, but were directed to file a written request when they asked for an electronic version. Officials in Tioga, Delaware and Ulster Counties released their Plans in January and made them available on their websites. After the League representatives were denied access to a copy of the Broome County Plan for “homeland security reasons”, you emailed a request to the Broome County Records Access Officer, Eric Denk. Having received no response, you appealed, at which point you were informed by the Assistant County Attorney that part of your request “may be denied” pursuant to §87(2)(f). No date was given by which the review would be complete. On March 14, you received further correspondence stating that the Plan would be made available for review, “in part” on March 29, 2007. It is our understanding that you have not yet received a copy of the plan.

In this regard, we believe a copy of the plan should be made available to you and offer the following comments.

First, §89(6) of the Freedom of Information Law states that:

“Nothing in this article shall be construed to limit or abridge any otherwise available right of access at law or in equity of any party to records.”

Stated differently, when records are available under some other provision of law or by means of judicial interpretation, they remain available, notwithstanding the provisions of the Freedom of Information Law. In the context of your inquiry, a federal statute clearly requires that emergency response plans must be disclosed.

As you correctly point out, §11044 of Chapter 116, Title 42 of the United States Code requires that:

“(a) Each emergency response plan, material safety data sheet, list described in section 11021 (1)(2) of this title, inventory form, toxic chemical release form, and followup emergency notice shall be made available to the general public, consistent with section 11042 of this title, during normal working hours at the location or locations designated by the Administrator, Governor, State emergency response commission, or local emergency planning committee, as appropriate. Upon request by an owner or operator of a facility subject to the requirements of section 11022 of this title, the State emergency response commission and the appropriate local emergency planning committee shall withhold from disclosure under this section the location of any specific chemical required by section 11022 (d)(2) of this title to be contained in an inventory form as tier II information.

(b) Each local emergency planning committee shall annually publish a notice in local newspapers that the emergency response plan, material safety data sheets, and inventory forms have been submitted under this section. The notice shall state that followup emergency notices may subsequently be issued. Such notice shall announce that members of the public who wish to review any such plan, sheet, form, or followup notice may do so at the location designated under subsection (a) of this section.”

Based on the foregoing, federal law requires that emergency response plans must be made available to the public. An entity required to submit a plan or one of the designated records that include information pertaining to a hazardous chemical, an extremely hazardous substance, or a toxic chemical, may substitute the generic class or category of the hazardous substance for the specific chemical identity at the time of submission, based on a claim of trade secret, pursuant to §11042 of Title 42 of the United States Code. Section 11042 further requires that the submitting entity show that the specific chemical identity has not been previously disclosed, that it is not required to be disclosed by law, that disclosure is likely to cause substantial harm to the entity’s competitive position and that the chemical identity is not readily discoverable through reverse engineering. A claim under the trade secret exemption is reviewable upon petition to the Administrator of the Environmental Protection Agency.

Accordingly, it is our opinion that a county, at the time of submission of an emergency response plan to the state emergency planning commission or local emergency planning committee, could substitute generic information for specific chemical identification information. The plan itself, including any generic or specific chemical identification information contained therein, however, would be required to be made available in its entirety.

To the extent that an advisory opinion previously rendered by this office indicates otherwise, (Advisory Opinion No. 16090, July 31, 2006), we have rescinded our opinion and removed it from our website.

On behalf of the Committee on Open Government, we hope this is helpful to you.