News: CJ Exclusives

State Agency, University Deny Records Requests

Records should be made public, according to NCPA attorney

The North Carolina Climate Action Plan Advisory Group proclaims its commitment to “transparency,” but when asked by Carolina Journal to provide data and analysis by its consultant, the state-appointed panel had little information to offer.

CJ has repeatedly requested data used to inform analysis conducted by the consultant, the Center for Climate Strategies, which produced 56 policy recommendations for the state to reduce emissions of carbon dioxide, a “greenhouse gas” that is believed to contribute to global warming.

CJ has also requested data related to an outside economic analysis being conducted for CAPAG and CCS by Appalachian State University’s Energy Center. Appalachian State has denied access to most of the records that have been requested.

“The processes will be transparent,” says a memorandum from CCS addressed to CAPAG and DAQ, dictating procedures that CAPAG will follow. “Policy options will include clear design parameters (such as levels, timing, coverage and implementation mechanisms) as well as technical analyses with clear data, methods, sources and assumptions. All proceedings will be posted to the project website by CCS after review for accuracy by DAQ.”

After several public records requests by CJ, many of materials that fall under CCS’s, CAPAG’s and the Energy Center’s control are still not available to the public.

DAQ is empty-handed

The state’s Division of Air Quality, which oversees NC CAPAG and handles its public records requests, says it has no background materials to provide about CCS’s economic, scientific, or technical analysis.

A contract between DAQ and CCS requires, among the “deliverables” from CCS as a consultant, “various technical materials, agendas, spreadsheets, etc….” DAQ has stated that all the technical information it possesses is posted on the NC CAPAG Web site. However, only reports that briefly address each carbon dioxide mitigation option, how much they would reduce greenhouse gases and the costs for doing so, are available on the Web site. No specific technical data that informed how they arrived at their conclusions, or that would allow others to replicate their analysis, is posted.

For example, in a proposal for “pay-as-you-drive” insurance, in which companies could charge customers for coverage based upon miles driven, CCS claims that the equivalent of 2.3 million metric tons of carbon dioxide could be reduced by 2010 if the idea is implemented.

But all that CAPAG and CCS cite as evidence for their findings are “pilot studies and empirical evidence,” and the only specific study mentioned was an April 2006 report by the Arizona Public Interest Research Group, which called for a “blueprint for action” to reduce Arizona’s contribution to global warming.

The left-leaning PIRG’s views on environmental issues are well established. In a May 2007 report to push a “clean cars” program in Arizona, the group did not hide its partisan views, writing, “while the Bush administration continues to resist efforts to reduce global warming pollution, many states are taking effective actions to address the threat….”

On July 17, Tom Peterson, executive director for CCS, sent a broadcast e-mail to public officials in several states proclaiming the accomplishments made by CAPAG.

“Recommendations of the CAPAG include a full suite of measures that would cut greenhouse gas emissions below 1990 levels by 2020…,” Peterson wrote, “…potentially at a significant net economic savings to the state.”

In response Carolina Journal requested from DAQ “all data and analysis” that supported Peterson’s claims. DAQ program coordinator James Southerland responded by saying that all technical information was, or would soon be, posted on the CAPAG Web site.

So far, only results, with no data or analysis backing Peterson’s claims, have been posted on the Web site, and DAQ public information officer Tom Mather says the division has no such data or analysis.

“Because CCS and CAPAG refuse to provide data that shows how they reached their conclusions,” said Roy Cordato, vice president for research at the John Locke Foundation and a frequent critic of the CAPAG process, “the public can only assume that such data and analysis either does not exist or that it will embarrass them if revealed.” The John Locke Foundation publishes Carolina Journal.

Energy Center analysis

DAQ officials also said they had no material background data or analysis on the Energy Center’s work even though DAQ Deputy Director Brock Nicholson has promoted their jobs analysis publicly, citing the center’s preliminary findings. When asked for all documentation on the Energy Center’s work, DAQ said it had no records, printed or electronic, because Nicholson had obtained his information via telephone conversations.

“I said that preliminary indications are that many source sectors show a jobs gain; however, there are some that show a loss in jobs,” Nicholson explained in an e-mail to CJ. “This comment was based on verbal comments from our contractor made during a routine project status call.”

On Oct. 4, Southerland wrote in an e-mail to CJ, “We should begin to have some drafts very, very soon as the meeting for which the preliminary results are to be available is only a few days away. Per conversations with [the Energy Center] today, they are drafting the reports at this moment.”

Despite the promise of impending reports, all that was provided at the Oct. 16 meeting of CAPAG, as well as an Oct. 23 meeting of the Legislative Climate Change Commission, were copies of a PowerPoint presentation made by an Appalachian State political science graduate school student, David Ponder.

Asked Nov. 7 via e-mail whether any reports were available yet, Southerland said, “To date, [the PowerPoint] is still all that we have. They are not to complete the main analysis until near or after the end of the month. The report from that will not be available for a few weeks thereafter.”

In response to a similar request from CJ to Appalachian State University for all input data and technical analysis related to its jobs analysis, university lawyer Dayton T. Cole denied access to the materials on the ground that the contract is between the Energy Center and CCS, a private entity, and therefore not public information. Cole referred CJ to a confidentiality clause in the Energy Center’s contract with CCS.

“…The parties agree that any and all knowledge, know-how, practices, process, or other confidential information disclosed or submitted in writing or in other tangible from which is designated as confidential information to either party by the other shall be received and maintained by the receiving party in strict confidence and shall not be disclosed to any third party,” the contract says.

However, CCS obtained approval from DAQ to contract with the Energy Center, and the work conducted by CCS for the state is what provided data for the Energy Center’s study. The contract between DAQ and CCS stipulates that CCS is to provide “organization and presentations to/for stakeholder and technical work groups, including various technical materials, agendas, spreadsheets, etc. as necessary to accomplish consensus building.” Therefore the data and analysis created under contract between DAQ and CCS would appear to be property of the state.

“Information that is created or generated by a public agency is by definition NOT property of a ‘private person,’ and therefore cannot be exempt” under public records law, said Amanda Martin, a lawyer for the N.C. Press Association, in an email response to questions.

Appalachian State did provide a copy of the Energy Center’s contract with CCS and copies of their PowerPoint presentations from the CAPAG and Legislative Commission meetings. Cole said an Oct. 8 request by CJ for records of correspondence between DAQ and the Energy Center was still under review. North Carolina’s public records law requires that copies of requested documents be provided “as promptly as possible.”

Paul Chesser ([email protected]) is associate editor of Carolina Journal.