The Louisiana Department of Environmental Quality (“LDEQ”) recently instituted a pilot program of making its Electronic Document Management System (“EDMS”) available on the internet for a six-month trial period. The EDMS is the electronic repository of official records that have been created or received by LDEQ. All documents that are defined as “public records,” including e-mail, either created or received by any LDEQ personnel are placed in the EDMS and can be searched on the internet through LDEQ’s website. All public documents that have not been labeled as confidential pursuant to LDEQ’s confidentiality statute, La. R.S. 30:2030, and that are dated July 1, 2005 or later are part of the pilot. The only exception is documents concerning radiation media as LDEQ has asserted confidentiality of these pursuant to its authority to keep potentially sensitive national security information as confidential.
Thus, the short answer to the question above is – yes, any documents relating to settlement negotiations with LDEQ on an enforcement action will be placed in the EDMS for viewing via the internet unless they have been given confidential status. Going forward, regulated entities should request confidentiality for any settlement documents, but it is uncertain as to whether confidentiality can be retroactively claimed for documents already posted on the EDMS pilot program.
LDEQ’s duties concerning public records derive from the Louisiana Constitution which provides that “[n]o person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” La Const. Art. XII, Sec 3. Further, the Louisiana Public Records Act, La.R.S. 44:1 et seq., requires the custodian of public documents for any administrative agency, board, commission and certain other public governmental entities to provide a copy of any public document to any member of the public upon request. La. R.S. 44:32. If the custodian believes it is not a public record, he has three days within which to withhold the document for review and to provide the requestor with the determination. Id. If the record is in active use, a three day period to produce it is also allowed: La. R.S. 44:33. The term “public records” is defined extremely broadly to include all data used by the agency in its official functions. The term encompasses electronic data as well as more traditional forms of written data. See definitions in La. R.S. 44:1.
The Louisiana Public Records Act provides that the only exceptions to the public status of documents are those set forth in that Act, although that Act incorporates by reference some other confidentiality provisions contained in other statutes, including LDEQ’s confidentiality statute, La. R.S. 30:2030. There is no direct exemption for settlement documents under either La.R.S. 30:2030 or La. R.S. 44:1 et seq. However, La. R.S. 30:2030 does contain an exemption for documents where maintaining confidentiality is deemed necessary by LDEQ “to prevent impairment of an ongoing investigation or prejudice to the final decision regarding a violation.” Because settlement negotiations are certainly a part of the process leading to a final decision regarding a violation, they would fit within this category. LDEQ should be urged to make a policy determination that all such settlement negotiations, in principle, fit this category and should be urged to exclude any settlement documents from the EDMS regardless of whether confidentiality has been specifically requested or not. Many people have traditionally believed that settlement negotiations are entitled to such confidentiality without the need to say so and may not have requested confidentiality in the past. To be certain that future submittals of settlement offers or documents remain confidential, a submitter should specifically request confidentiality under this exemption of La. R.S. 30:2030.
LDEQ has adopted rules in LAC 33:I.Ch. 5 and Ch. 6 for requesting confidentiality for trade secret or other business proprietary information and for security sensitive information. Such rules require that confidentiality be asserted at the time of submittal and that the documents be labeled as confidential. The rules set forth a procedure for LDEQ to make determinations on confidentiality requests and for appeals to such decisions. However, these rules do not seem to fit well with respect to a specific procedure for requesting that LDEQ make a confidentiality determination for documents “to prevent impairment of an ongoing investigation or prejudice to the final decision regarding a violation.” It is recommended that unless and until LDEQ makes a determination that all enforcement settlement negotiations related materials fall within the La. R.S. 30:2030 exemption, the procedure in LAC 33:I.Ch. 5 be followed as closely as possible when making requests for confidentiality for settlement related materials even though the information required is geared more toward confidential trade secret type information.