Transparency in Enforcement Transparency in Enforcement and Inspectionsand Inspections

Carol M. Parker, AttorneyCarol M. Parker, Attorney

Restoring Trust in Pipeline SafetyRestoring Trust in Pipeline SafetyNew Orleans, LANew Orleans, LANov. 2 & 3, 2006Nov. 2 & 3, 2006

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PHMSA’s Enforcement Is ClosedPHMSA’s Enforcement Is Closed

• PHMSA “Standard Policy”—NO records released about pending enforcement cases

• PHMSA denies Freedom of Information Act (FOIA) requests while enforcement is pending (may be more than a decade)

“Would interfere with law enforcement”

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PHMSA’s Policy Leaves Us In PHMSA’s Policy Leaves Us In the Dark for Yearsthe Dark for Years

• Carlsbad Pipeline Accident– PHMSA issued Notice of Probable Violation alleging that

El Paso broke the law and those violations caused the August 2000 accident in which 12 people died

– Proposed $2.5 million dollar fine– El Paso denies PHMSA’s allegations and alleges that

PHMSA approved its plan and oversaw inspections and that the accident was the fault of PHMSA’s inadequate inspections

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What If El Paso Is Right?What If El Paso Is Right?

• Wouldn’t the public want to be assured that changes have been made at PHMSA?

• How would the public know that those changes had been made?

• Is it possible that withholding of information is due to agency embarrassment rather than interference with law enforcement?

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What If PHMSA Is Right?What If PHMSA Is Right?

• Wouldn’t the public want to be assured that El Paso had been punished?

• “Punished” ≠ Micromanaged after the accident; sending a message to other operators

• PSIA 2002

• Penalties aren’t effective if they’re not collected

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Since 2000, What Has Happened?Since 2000, What Has Happened?• December 2003, PHMSA referred case to DOJ

– Recently DOJ told Senator Jeff Bingaman, “If negotiations fail, DOJ will file a case.”

– DOJ has had this case for three years—how long do you have to negotiate to conclude that negotiations have failed?

– After six years, it’s fair to ask, what’s wrong?

PHMSA won’t say because…

…it would “interfere with law enforcement.”

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Could Open Enforcement Could Open Enforcement Proceedings Reasonably Proceedings Reasonably

“Interfere with Law “Interfere with Law Enforcement?”Enforcement?”

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Openness in Law EnforcementOpenness in Law Enforcement

• Investigatory vs. Adjudicatory Phases

• Investigatory phase is usually secret to prevent:– Unwarranted accusations– Witness tampering– Revealing enforcement and litigation strategies– Wrongdoer fleeing the jurisdiction

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Openness in EnforcementOpenness in Enforcement

• Adjudication phase (trial) answers the question “Who is at fault?”

• Accused has a right to respond and offer his own evidence

• Adjudication is almost always open

Because of the distinction between investigatory information and adjudicatory information I limited my

FOIA request to only materials comprising the adjudicatory docket

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““Almost” Always Open?Almost” Always Open?• Open adjudication began before the

Norman Conquest (1066 A.D.)

• Criminal trials (6th Amd)

• Civil trials (1st Amd)

• State adjudicatory proceedings (14th Amd)

• Federal adjudicatory proceedings (5th Amd)

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Take Home LessonsTake Home Lessons

• Our government has a long history of open adjudicatory processes

• When the proceedings are open, the documents associated with those proceedings are generally freely available

• Openness doesn’t seem to interfere with law enforcement in all of those other contexts

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Openness and TrustOpenness and Trust

• 1000 years of history

• “The favorable judgment of experience…”

• Dominant theme—openness builds trust and confidence in the process

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Rationales for Public AdjudicationRationales for Public Adjudication

• Fosters an appearance of fairness and heightens public respect for the judicial process Globe Newspaper Co. v. Superior Court, 457 U.S. 596,

606 (1982).

Would fostering an appearance of fairness and heightening public respect

for PHMSA help restore trust in pipeline safety?

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Rationales for Public AdjudicationRationales for Public Adjudication

• A right of access to information ensures that the constitutionally protected discussion of government affairs is an informed one Globe Newspapers, 457 U.S. at 604.

Why wouldn’t PHMSA want debate about pipeline safety to be informed by the facts?

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Rationales for Public AdjudicationRationales for Public Adjudication• “People in an open society do not demand

infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.” Richmond Newspapers, 448 U.S. at 572.

Openness would promote acceptance of PHMSA’s decisions—isn’t that part of trust?

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Restoring Trust in Pipeline SafetyRestoring Trust in Pipeline Safety

• Openness– Enhances public confidence– Provides a community therapeutic value– Assures informed public debate– Promotes public acceptance of fallibility

Justice Delayed is Justice Denied