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The state Department of Environmental Protection is facing a Freedom of Information Act lawsuit over its refusal to provide a public interest law firm with a slice of agency data that shows recent water pollution levels at coal-mining operations across West Virginia.

Lawyers from Appalachian Mountain Advocates sued DEP in Kanawha Circuit Court after the agency turned down their request for “discharge monitoring report,” or DMR, data that mine operators are required to file with the agency to disclose pollution levels under state and federal clean water laws.

Last year, the group had asked DEP to provide the most recent quarterly DMR data for all coal mines statewide. Agency officials had previously provided similar data in an easy-to-use Microsoft Excel spreadsheet format, Appalachian Mountain Advocates said in its legal filings.

This time, though, DEP said that to provide the requested data, the agency “would have to research its databases and create a new record.” DEP said the state FOIA “does not require an agency to create or produce a record that does not exist at the time the request is made.”

Appalachian Mountain Advocates responds that providing one slice of data from a larger database doesn’t constitute creating a new record. The group says what it’s asking for is the digital equivalent of asking DEP to provide a small number of files stored in a large filing cabinet.

“Although it is true that a public body is not required to create a new public record, neither the computer program used to search an electronic database, nor the results of a search of an electronic database constitute the creation of a new public record,” wrote Derek Teaney, senior attorney at Appalachian Mountain Advocates, in a legal brief filed in late July.

DEP spokeswoman Kelley Gillenwater declined to comment specifically on the case or explain DEP’s policy change on providing the data, but said that the agency “continues to be as open and transparent with information as possible.”

Kanawha Circuit Judge Charles King held hearings in the case last week and again on Monday, but has not yet issued a ruling.

Under West Virginia law, if public records exist in “magnetic, electronic or computer form” they must be provided in that format, if so requested.

In 1997, the state Supreme Court ruled that agencies are not required to create new records in response to FOIA requests. But West Virginia courts have apparently not ruled on whether searching an electronic database and providing a portion of that database constitutes creating a new record. Appalachian Mountain Advocates cited several federal court rulings that concluded database searches do not amount to creating new records.

Lewisburg-based Appalachian Mountain Advocates is the public interest law firm and policy organization run by attorney Joe Lovett. The group has litigated most of the major cases in recent years over mountaintop removal coal mining, and has also been focusing on federal court lawsuits against coal companies to compel compliance with Clean Water Act permit limits and water quality standards. Such suits have relied on DMR data that mine operators filed with DEP to show violations of pollution rules.

In their legal filings, Appalachian Mountain Advocates lawyers note that the DEP is currently in the midst of changing its coal-mine permitting rules to remove language -- often used in suits against mine operators -- that prohibits pollution discharges that cause violations of state water quality standards. The rule change is pending legislative review.

“The information in the public records requested would allow Plaintiff to contribute to that debate by demonstrating to the public and the relevant decision makers that mining operations are currently causing widespread violations of the state’s water quality standards, and that the permit condition is necessary to allow proper enforcement of the law and protection of the environment,” the group said in one court filing.

In a response filed with the court, DEP said that Appalachian Mountain Advocates could obtain DMR data from an agency website that DEP staffers maintain to avoid “the burden of individualized requests” that are “overly burdensome.” DEP says it is following “recent mandates” by the Obama administration that agencies “use modern technology” and “harness new technologies” in putting information online.

“The WVDEP proactively fulfills its FOIA obligations both in the instant case and with all other requests and is not obligated to do requesters’ work for them,” wrote DEP lawyer Scott Driver. “As long as the public records are freely accessible to the public, it is immaterial that many such records exist, or that work is required to analyze them.”

But during Monday’s hearing, Evan Hansen, an environmental consultant with a computer science degree from the Massachusetts Institute of Technology, explained that the current DEP website does not allow users to filter discharge monitoring reports for particular periods of time. The website requires users to examine one pollution report at a time, rather than downloading hundreds or even thousands of such reports in bulk for later analysis with a computer program, Hansen said.

Hansen testified that, using the current report-by-report DEP website, it would take him nearly 300 hours of work to put together a list of all pollution reports for one quarter. That compares to the one hour it previously took a DEP programmer to provide search the database to provide the same sort of data in response to a previous FOIA request, Hansen said. DEP charged Appalachian Mountain Advocates $37 for the programmer’s time responding to that request, Hansen said.

“WVDEP should not be permitted to obstruct public access to DMRs by maintaining them in such an inaccessible fashion,” Appalachian Mountain Advocates said. “Defendants are obligated to provide reasonable access to public records.”

At the end of the hearing, King noted that if a member of the public or the media wanted a list of the criminal cases he handled in the last year, the circuit clerk’s office would query its case database and provide the list of those cases.

Reach Ken Ward Jr. at, 304-348-1702 or follow @kenwardjr on Twitter.

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