Pennsylvania must release crude oil train data, open records office rules

BNSF crude oil trains meet at Galesburg, Ill., on Aug. 31, 2014.
BNSF crude oil trains meet at Galesburg, Ill., on Aug. 31, 2014. McClatchy

Pennsylvania must publicly release information about Bakken crude oil shipments, the state’s Office of Open Records ruled Friday, reports two rail companies had pushed to keep confidential.

The decision reversed a July refusal by the Pennsylvania Emergency Management Agency to release the reports after McClatchy and other news organizations filed requests for them under the Pennsylvania Right to Know Law.

The state agency, Norfolk Southern and CSX argued that making the information public would compromise security, as well as harm the companies’ business. McClatchy, the Pittsburgh Post-Gazette and the Pittsburgh Tribune-Review appealed the agency’s denial.

The Open Records office rejected all the railroads’ claims Friday in a blistering 14-page decision, calling the lengthy affidavits the companies submitted in support of their position “conclusory” and “self-serving,” and said they “may not be relied upon as competent evidence to withhold records.”

The reports, the decision said, “contain information that is neither commercial nor financial” and the companies’ affidavits “do not address the issue of competitive harm in any meaningful way.”

The reports also didn’t meet the burden for security sensitivity, the decision said.

“The release of innocuous statistical and safety information does not, in and of itself, create a reasonable likelihood of endangering public safety,” the Open Records office said.

Like other open records laws, the Pennsylvania Right to Know Law places the burden of proof on government agencies to demonstrate that records should be withheld. Records are presumed to be public unless the state can prove that they are exempt.

The state emergency management agency has 30 days to release the records to the news organizations that requested it. The railroads also have 30 days to appeal the decision to Commonwealth Court.

Dave Pidgeon, a spokesman for Norfolk Southern, said the company is reviewing the decision “and will respond in the appropriate time.”

Rob Doolittle, a spokesman for CSX, said that the railroad “maintains the confidentiality of this information for both competitive and security reasons.”

Pennsylvania is in the minority of states that have declined to release the information about the frequency and routing of shipments of 1 million gallons or more of Bakken crude oil, required by a May 7 emergency order from the U.S. Department of Transportation.

DOT issued the order after a series of derailments involving crude oil trains starting more than a year ago with a deadly accident in Quebec that killed 47 people. Subsequent accidents in Alabama, North Dakota and Virginia, though none fatal, raised concerns in communities throughout North America about the safety of the shipments.

Crude by rail has increased exponentially in the past few years amid surging oil production in North Dakota, Texas and other states. But many state and local officials had no warning of the increase and no time to assess their emergency response capability.

The Pennsylvania Open Records decision Friday alluded to those concerns, citing “the general public’s interest in knowing whether these trains are operating in close proximity to their homes or businesses.”