Editor’s note: This article is by Zach Despart of the Addison Independent, in which it was first published on May 1, 2014.
BURLINGTON — Vermont Gas Systems has asked the Public Service Board to approve a protective agreement the company brokered with the Public Service Department, which would limit the public’s access to documents related to Phase II of the Addison-Rutland Natural Gas Project.
The agreement would allow Vermont Gas to, under specified criteria, request that certain documents and communications be exempted from public examination. If the Public Service Department approves such a request, parties to the agreement, which include opponents of the pipeline project, would be prohibited from sharing exempted materials with the public, or citing them in future litigation.
“If we learn something important in this case, I don’t want to sign an agreement saying we won’t use it in another case involving the same utility,” said James Dumont, a Bristol attorney who is representing the Vermont Public Interest Research Group.
VPIRG has also said the organization believes the proposed agreement could potentially prohibit criminal acts from being reported to law enforcement. The Vermont Press Association has raised concerns about the merits of withholding information from the public.
Vermont Gas and the Public Service Department filed the draft agreement with the Public Service Board March 24. Public Service Board Clerk Susan Hudson said she did not know when the board will decide to approve or reject the agreement.
If the Public Service Board approves the agreement, Vermont Gas will be permitted to exempt from public review information that “could result in financial and/or competitive harm or might threaten the security of local, regional or national energy infrastructure if it is required to disclose such information to the public.”
The utility company would also be empowered to classify information it feels is proprietary, privileged or “in the nature of a trade secret.”
Information, documents and communication the Public Service Department agrees meets any of these criteria would be disclosed only to parties of the agreement, and in some cases, only to the Public Service Department or other relevant agency.
Some three-dozen persons and organizations would be party to the agreement, including both proponents and opponents of the project. The list includes attorneys, Vermont Gas, the towns of Middlebury, Cornwall and Shoreham, International Paper, the Addison County Regional Planning Commission, VPIRG, IBM and Rising Tide Vermont.
Under the agreement, if the Public Service Department denies a request by Vermont Gas to classify documents, the company is entitled to a hearing before the Public Service Board within five days. The records in question would be kept secret during this interim period.
The agreement would also mandate that parties deny public records requests, citing a section of Vermont’s public records act that exempts documents from public examination if they are relevant to ongoing litigation.
The protective agreement further stipulates that after litigation related to the project is over, those public records requests would be granted.
The Public Service Board a year ago approved a similar protective agreement between Vermont Gas and the department for Phase I of the pipeline project.
In its approval, the Board stripped from the agreement a section that would have obliged state agencies to deny public records request using the relevant litigation exemption.
In its reasoning, the Board said only the Superior Courts had jurisdiction to rule on public records requests.
Louise Porter, special counsel for the Department of Public Service, urged the Public Service Board to approve the protective agreement.
“The protective agreement will serve to expedite the production of information among VGS, the Department, and any other party to the agreement,” Porter wrote in an April 24 letter to PSB’s Hudson. “The Department supports VGS’s request that the Board approve the protective agreement.”
Vermont Gas spokesman Steve Wark said the company believes the protective agreement is necessary, and that thus far, it has withheld few documents.
“With respect to the current docket, Vermont Gas has provided 9,000 documents in response to requests,” Wark wrote in an email. “Fewer than 10 documents were claimed as confidential or highly confidential.”
Wark added that the documents under seal protected the names of customers, sensitive contract figures with International Paper, and budget information.
Dumont, on behalf of VPIRG, shared with the Public Service Board concerns the organization has about the proposed agreement.
“VPIRG sees no justification for this restriction on the ability of parties to bring potentially relevant information to the board’s attention,” Dumont wrote to Hudson on April 25.
Dumont argued that the agreement, in its current form, would prevent parties from reporting criminal activity.
“Paragraph 5 as written also prohibits the department or VPIRG or any other parties from disclosing this information to the Attorney General of Vermont, the U.S. Attorney’s Office or any other law enforcement officials,” Dumont wrote.
Dumont argued that if information protected under the agreement included evidence of illegal drug use by Vermont Gas contractors, neither the Department of Public Service nor any party to the agreement would be permitted to contact police.
Dumont referenced the case of two men working under a Vermont Gas contract in Franklin County who were arrested for allegedly manufacturing methamphetamine. Vermont Gas later halted work on the pipeline in St. Albans and Georgia to re-inspect the work the men had performed.
The Vermont Press Association, which represents more than 50 newspapers across the state, is looking into the effect such an order would have on transparency in government.
“The VPA has just learned about the proposed protective order, and we have board members investigating the issue,” VPA Executive Director Michael Donoghue said. “The Vermont Press Association is always concerned in any governmental proceeding when there are proposed gag orders or attempts to withhold information from Vermonters.”
Phase II of the Addison-Rutland Natural Gas Project, which is proposed to run from Middlebury to Ticonderoga, N.Y., has not yet been approved by the Public Service Board.
Editor’s note: The president of the Vermont Press Association is John Flowers, a senior reporter for the Addison Independent.