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State OKs sealing of pipeline records

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Posted on May 29, 2014 |
By Zach Despart



MONTPELIER — The Public Service Board has approved a protective agreement between Vermont Gas Systems and the Department of Public Service that will limit the public’s access to documents related to Phase II of the Addison-Rutland Natural Gas Project.

In OK’ing the agreement, however, the Board stripped provisions that some advocates of open government saw as very onerous — ones that would have mandated state agencies to deny records requests by citing the section of the state’s public records act that protects documents that are relevant to ongoing litigation.

The agreement allows Vermont Gas to, under certain criteria, request that documents and communications be shielded from public view. If the Department of Public Service approves such requests, parties to the agreement, which include opponents of the project, would be barred from disclosing exempted documents to the public.

Some three dozen individuals and organizations are party to the agreement, including both proponents and opponents of the project. The list includes Vermont Gas; state’s attorneys; the towns of Middlebury, Cornwall and Shoreham; International Paper Co.; the Addison County Regional Planning Commission; Vermont Public Interest Research Group (VPIRG); IBM; and Rising Tide Vermont.

Phase I of the project, which is already approved, will run a natural gas pipeline from Colchester to Vergennes and Middlebury. Phase II would extend the pipeline to Ticonderoga, N.Y., via Middlebury, Cornwall and Shoreham.

The Public Service Board last year approved a similar protective agreement for Phase I of the pipeline project. In that case, Vermont Gas asked the Board to approve a section that would have obliged state agencies to deny public records requests using the relevant litigation exemption. As was the case for the Phase II protective agreement, the Board rejected that request.

In denying the inclusion of a mandatory public records exemption, the Board cited its denial for the same language in the Phase I protective agreement.

“The board is not the tribunal that would resolve any dispute between a state agency that is party to this docket and any non-party seeking disclosure,” the Board wrote in May 2013. “Such jurisdiction lies with the Superior Court.”

The Vermont Public Interest Group, joined by Solar Haven Farm in Shoreham, asked the Board to amend the agreement to allow parties to disclose exempted information to other state agencies and law enforcement officials for further investigation.

The Board rejected this request, noting, “their arguments reflect a fundamental misunderstanding of the terms and the purpose served by the existing language of the standard protective agreement.”

The Board explained that the purpose of protective agreements is to allow documents to be circulated quickly during the discovery process, and without the Board’s intervention, which strains both time and financial resources.

“These protocols facilitate the parties’ development of evidence in Board proceedings in a manner that promotes judicial economy and administrative efficiency,” the three-member Board wrote in its decision. “VPIRG has proposed modifications to the protective agreement that would likely have the undesirable effect of stifling the free exchange of allegedly confidential information.”

The Board added that disgruntled parties are entitled to challenge information that is declared confidential.

VPIRG also asked the Board to amend the protective agreement to make exempted records available to the public after two years, but the Board denied that request.

“VPIRG’s requested modifications … would potentially and needlessly risk the inappropriate disclosure of allegedly confidential information without any prior board scrutiny,” the Board wrote.

The Board stated that most information related to the pipeline project is not confidential, however some instances warrant the classifying of information.

“At times, there may be some information that is legitimately deserving of confidential treatment,” the Board wrote.

The ruling also details the process Vermont Gas must follow to request that documents be classified. It also mandated that parties must classify information in good faith, or face sanctions, but does not specify what form sanctions could take.

Steve Wark, a spokesman for Vermont Gas, said on April 30 the company had so far supplied 9,000 documents related to the docket, and classified fewer than 10.

The Public Service Board approved Phase I of the Addison-Rutland Natural Gas Project last December. The Board has yet to rule on Phase II. The PSB’s next hearing on the Phase II pipeline is scheduled for Thursday, June 12, at 7 p.m. at Middlebury Union High School. Citizens may comment in person or submit their written comments to the PSB at psbclerk@state.vt.us.

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