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Dept of State Parses “all” to Avoid Keystone Disclosure
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In a startling display of regulatory capture, the Department of State (DoS) revealed that its refusal to release data essential to the reading of its Keystone XL environmental reports is based on a bizarre interpretation of a phrase in a 3rd party contract. Their conclusion that the Keystone XL mapping data contained in their reports is not their property and, thus, cannot be shared with the public, comes from its own narrow interpretation of a contract between TransCanada and ERM, the firm tasked with writing the reports, and not from any explicit agreement with TransCanada.
As you may recall, in May of this year, after two years of delay, the DoS denied my Freedom of Information Act (FOIA) request for the Keystone XL mapping data saying that the data was not an “agency record” (read “Dept of State Defers to TransCanada“). I appealed the matter to the Office of Government Information Services (OGIS), the governmental agency tasked with assuring compliance with FOIA. After discussing the matter with DoS, OGIS stated in their letter of denial to me that:
TransCanada made its intention clear that it retained all rights to
that data and placed limitations on its use.The Master Service Agreement entered into between TransCanada and ERM for purposes of the NEPA review contains a provision that reads as follows:
“All original drawings, plans, specifications, calculations, sketches, designs, reports, files (electronic or otherwise), records and other documents regardless of the media or means of storage and access thereto (“Records”) developed by, through or for the Contractor pursuant to this Contract or any Change Order shall be the absolute property of the DOS.”
According to Ms. Manheim, this provision does not establish State Department control over the information in question. The GIS mapping data you seek was developed by TransCanada for its own use. Although the data was made available to ERM for the purpose of ERM’s NEPA review, this data was not “developed by, through or for the Contractor.” As such, it is State’s position that the records you seek do not fall within the ambit of this provision.
In my reply to the OGIS, I felt compelled to define the word “all” before pointing out the self-contradiction in the DoS position:
Clearly, the GIS data were ‘developed by, through or for the Contractor,’ because without the data, the Contractor would have been unable to perform their contracted NEPA review, just as the public has been unable to review the FEIS, SEIS, and FSEIS without the data. It is disingenuous at best for TransCanada and DoS to claim they are going to build, operate, and regulate a pipeline according to federal and state law without telling the public where it is. The only goal achieved by TransCanada, ERM, and DoS in not releasing the GIS data is that evaluation of the project’s FEIS, SEIS, and FSEIS is made impossible. Certainly, such obfuscation is not compliant with FOIA and defeats the whole purpose of the public comment period.
As the third-party agreement between TransCanada and ERM is the only agreement DoS can point to, the determination that “TransCanada made its intention clear…” was made solely through misinterpreting the clause “developed by, through or for the Contractor.” By reading the clause as exclusive instead of inclusive and by parsing “all” to mean something other than all, the DoS effectively absolves itself of any regulatory oversight of anything contained in their reports.
The OGIS letter of denial:
My full response to the OGIS:
Full text:
Dear Ms. Nisbet,
Thank you for your review of the Department of State’s (DoS) denial of my FOIA request F-2012-25735. The DoS response to your inquiry is unsupported and contradictory and suggests that the DoS remains out of compliance with FOIA.
Your letter states that
…TransCanada did make certain Geographic Information Systems (GIS) data available to State while it was conducting a National Environmental Policy Act (NEPA) review, the corporation placed limits on the use of that data; it is State’s position that the records you seek cannot be considered “agency records.
TransCanada and the DoS seem to have an agreement surrounding the proposed Keystone XL Pipeline, yet, the agreement and to what extent it relies on third party agreements between TransCanada and its contractors is unknown. So while the DoS claims the GIS data is not an “agency record” per an agreement with TransCanada, we have not seen this agreement nor, perhaps, other agreements that might define “agency record.” These agreements are the subject of my current FOIA F-2014-16267.
The one agreement we do know of is that between TransCanada and ERM, the firm that produced the Keystone XL Pipeline Final Supplemental Environmental Impact Statement (FSEIS).
TransCanada – ERM Master Services Agreement
The Master Services Agreement (MSA) between TransCanada and ERM states under Section 2g that:
Confidential Information does not include information that is: (ii) generally known to the public, as of the date and to the extent that such information becomes so generally known;
As your letter also cites, the MSA also states under Section 24.1 that:
All original drawings, plans, specifications, calculations, sketches, designs, reports, files (electronic or otherwise), records and other documents regardless of the media or means of storage and access thereto (“Records”) developed by, through or for the Third-Party Contractor pursuant to this Contract or any Change Order shall be the absolute property of the Department.
Keystone XL Pipeline Route Data is Public Information
The proposed Keystone XL Pipeline route is not confidential and qualifies under the MSA as generally known to the public. Basic route information has been made public by the Montana Department of Environmental Quality (MDEQ), the South Dakota Public Utility Commission (SDPUC), the Nebraska Department of Environmental Quality (NDEQ), and the Railroad Commission of Texas (TxRRC). The Federal Energy Regulatory Commission (FERC) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) both consider pipeline routing data to be in the public domain. Once constructed, the route will be marked in the ground with stakes and will be visible everywhere in the world via Google Earth. The United States Army Corps of Engineers and the United States Fish and Wildlife Service have both released Keystone GIS data to the public. Clearly, the Keystone route is generally known to the public and is not intended, by either state or federal regulators, to be kept secret from the public.
Essential Data, by definition, is an Agency Record
The MSA is very clear when it states that “All original drawings, plans, specifications…” are agency records. “All” means all – everything used by the contractor to create the report. The phrase “developed by, through or for the Third-Party Contractor,” augments “all” and is intending to include documents, not exclude them. If the data is integral to the creation of the report, referenced throughout the report, included in the report, and essential to the reading of the report, it is part of the report and, as such, an agency record.
The GIS mapping and route data is intended to be included directly in the environmental reports issued by the DoS, including the Final Environmental Impact Statement (FEIS), the Supplemental Environmental Impact Statement (SEIS), and Final Supplemental Environmental Impact Statement (FSEIS). For example, in the 2008 Keystone XL FEIS:
- Volume 1, Environmental Reports. Section 3: Affected Environments: This section contains 23 tables referencing thousands of milepost markers and/or waterbodies and distances based upon them, yet no where in the report are the actual longitude and latitude of the milepost markers given.
- Volume 2, Pipeline Aerial Route Sheets: This section contains over 1,000 maps, yet all have had their geolocation information removed, including longitude and latitude, rendering them meaningless as maps.
- Volume 3, Powerline USGS and Aerial Route Sheets: This section contains approximately 120 USGS topographic maps containing references to Keystone XL milepost markers. The maps have had their geolocation information removed, including longitude and latitude, rendering them meaningless.
- Volume 4, USGS Location Pipeline Route Sheets: This section contains approximately 400 USGS topographic maps containing references to Keystone XL milepost markers. The maps have had their geolocation information removed, including longitude and latitude, rendering them meaningless.
- Volume 5, Waterbody Crossings: This section contains hundreds of tables listing nearly 10,000 waterbody crossings, none of which are geolocated.
By no means is this a complete list of the documents containing incomplete and missing GIS references. The cited volumes appear to be incomplete and most of the volumes (Vol 6-18?) appear to be missing altogether. The subsequent Draft SEIS, SEIS, and FSEIS reports published by the DoS suffer similar data gaps.
It is obvious that without GIS mapping data the Keystone XL Pipeline reports published by the DoS are meaningless and unreviewable by the public, which is supposed to be allowed to comment on them. DoS’ position is nonsensical. In your letter you state:
The GIS mapping data you seek was developed by TransCanada for its own use. Although the data was made available to ERM for the purpose of ERM’s NEPA review, this data was not ‘developed by, through or for the Contractor.’ As such, it is State’s position that the records you seek do not fall within the ambit of this provision.
This statement is self-contradictory. Clearly, the GIS data were ‘developed by, through or for the Contractor,’ because without the data, the Contractor would have been unable to perform their contracted NEPA review, just as the public has been unable to review the FEIS, SEIS, and FSEIS without the data. It is disingenuous at best for TransCanada and DoS to claim they are going to build, operate, and regulate a pipeline according to federal and state law without telling the public where it is. The only goal achieved by TransCanada, ERM, and DoS in not releasing the GIS data is that evaluation of the project’s FEIS, SEIS, and FSEIS is made impossible. Certainly, such obfuscation is not compliant with FOIA and defeats the whole purpose of the public comment period.
Unsupported and Contradictory Claims by DoS and OGIS
The facts do not support the DoS’ claim that “TransCanada made its intention clear that it retained all rights to that data and placed limitation on its use.”
- The DoS Keystone XL Pipeline documents do not contain any record of TransCanada stating this intention.
- The DoS Keystone XL Pipeline documents do not contain any document or agreement between the DoS, TransCanada and/or other third parties directly addressing the use of GIS data.
- The DoS relies on a convoluted and nonsensical reading of the MSA between TransCanada and ERM to exclude otherwise public records from review.
The DoS has obfuscated the facts and has not been forthcoming in its response. My concern is that if this matter cannot be resolved administratively, litigation may become necessary. I urge you to reconsider your denial of my case and make every effort to clarify these matters with DoS, bring them into compliance with FOIA, and ensure the integrity of the public review process.
Sincerely,
Thomas Bachand
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