Violation Tracker

The Obscure Companies Threatening the Planet

Hilcorp Energy, a privately held oil and gas producer based in Texas, shows up in Violation Tracker with only $2 million in regulatory penalties, compared to more than $1.5 billion for petroleum giant Exxon Mobil. Yet according to a detailed new report published by Ceres and the Clean Air Task Force, Hilcorp dwarfs Exxon when it comes to climate-ruining emissions of methane gas.

Hilcorp is one of a group of lesser-known energy producers which turn out to be responsible for a remarkable portion of greenhouse gas emissions. The findings of the Ceres report, which outed the companies using data from the EPA’s Greenhouse Gas Reporting Project, were surprising enough to merit a front-page article in the New York Times.

Among the other low-profile/high-emissions companies featured in the report are Terra Energy Partners, Flywheel Energy, Blackbeard Operating and Scout Energy. These firms have few or no listings in Violation Tracker.

One of the reasons these companies fly under the radar is that they are not publicly traded. Some are controlled by private equity firms, making their business even more opaque.

As the Times article points out, some of these producers have purchased operations from larger, publicly traded corporations subject to more scrutiny. For example, Hilcorp acquired gas wells in the San Juan Basin in northwestern New Mexico from ConocoPhillips, reducing that company’s carbon footprint while doing nothing to reduce the burden on the climate.

It is significant that the Ceres report is appearing in the wake of the showdown at Exxon Mobil, where institutional investors concerned about the risks associated with climate change have just succeeded in winning three seats on the corporation’s board of directors.

That is a vitally important development in the effort to bring about change at the company which is still the largest overall emitter of greenhouse gases. The Ceres findings point out the necessity for the climate movement to target not only the corporate giants but also the smaller players which are having an outsized impact.

One difficulty in changing the practices of both larger and smaller corporations is the fact that the U.S. environmental regulatory system does little to punish firms for their greenhouse gas emissions. A producer such as Hilcorp can get away with its massive methane emissions because it does not need to worry about activist institutional investors or the possibility of substantial penalties from the EPA.

The EPA has gone after automobile producers such as Hyundai for their greenhouse gas emissions, but the agency has faced strong legal obstacles in the effort to regulate emissions by power plants and energy producers.

Those obstacles need to be overcome, and corporations of all kinds need to face substantial monetary penalties for their contributions to the climate crisis.

Note: Apart from the Ceres report, good use of the EPA’s greenhouse gas data has been made by the Political Economy Research Institute’s Greenhouse 100 Polluters Index, which ranks parent companies by the total emissions of their subsidiaries. In that index, power plant owners such as Vistra Energy and Duke Energy are at the top. Exxon is number 11 and Hilcorp number 36.

The 200-Year-Old Corporate Criminal

Boston-based State Street Corporation traces its history back to 1792 and now manages more than $3 trillion in assets, yet it has always maintained a lower profile than the goliaths of Wall Street. Recently, the company was in the spotlight, though not in a good way.

The U.S. Attorney’s Office for Massachusetts announced that State Street would pay a $115 million criminal penalty to resolve charges that it engaged in a scheme to defraud a number of its clients by secretly overcharging for expenses related to the bank’s custody of client assets.

“State Street defrauded its own clients of hundreds of millions of dollars over decades in a most pedestrian way,” said Acting U.S. Attorney Nathaniel Mendell. “They tacked on hidden markups to routine charges for out-of-pocket expenses.”

What’s remarkable is this simple fraud went on, according to prosecutors, for 17 years. This suggests that a large number of company executives were in on the scheme. In effect, it became part of State Street’s standard operating procedure.

It is disappointing that, aside from the monetary penalty—which can be easily absorbed by a company of its size–State Street was let off with what amounted to a slap on the wrist. Like numerous large corporate violators before it, State Street was allowed to enter into a deferred prosecution agreement rather than being compelled to enter a guilty plea.

The DPA is all the more controversial because State Street did not have a pristine record prior to this case. As shown in Violation Tracker, it has paid more than $1 billion in penalties in previous cases dating over a decade. These included a 2010 case in which it had to pay $313 million to resolve allegations by the Securities and Exchange Commission and the Massachusetts Attorney General that it misled investors about their exposure to subprime investments while selectively disclosing more complete information to specific investors.

Later, in 2016, State Street paid $382 million to the resolve an SEC case alleging that it misled mutual funds and other custody clients by applying hidden markups to foreign currency exchange trades. Hidden markups seem to be a recurring theme for State Street.

Since 2010 the company has paid out another $400 million in cases brought by the SEC and state regulators as well as class action lawsuits involving its management of pensions and benefit plans.

Yet perhaps the most disturbing entry on the Violation Tracker list is a 2017 case in which State Street paid a $32 million penalty to the Justice Department to resolve charges that it engaged in a scheme to defraud a number of the bank’s clients by secretly applying commissions to billions of dollars of securities trades.

As in this year’s criminal case, State Street was allowed to wriggle out of those charges by signing a deferred prosecution agreement. That puts the company in the dubious group of corporations that, as a 2019 Public Citizen report showed, have been offered multiple DPAs or non-prosecution agreements.

The ability of a corporation to obtain multiple leniency agreements makes a mockery of DPAs and NPAs. These arrangements are justified as a way to encourage a wayward company to change it practices, yet the ability to obtain multiple get-out-of-jail-free agreements does nothing more than incentivize more misconduct.

SCOTUS Boosts Crooked Corporations

The U.S. Supreme Court has given a boost to crooked corporations in a ruling that restricts the powers of one of the federal government’s oldest regulatory agencies, the Federal Trade Commission, which has been operating since 1914. The Justices ruled unanimously that the FTC does not have the authority to go to court and win redress for unfair and deceptive business conduct. It must first go through a cumbersome administrative process.

Since the 1970s the FTC has been obtaining court injunctions against rogue companies and compelling them to provide monetary relief to consumers. In Violation Tracker we document nearly 500 cases brought by the agency since 2000, with total fines and payouts of more than $14 billion. More than a dozen of those cost companies more than $100 million.

Just the other day, the FTC announced it was sending more than $59 million collected on behalf of consumers who were victims of an allegedly deceptive scheme by Reckitt Benckiser Group and Indivior Inc. to thwart lower-priced generic competition with the branded drug Suboxone. Many of these enforcement actions may no longer be possible.

The high court ruling may prompt Congress to revise the law to allow the FTC to go back to using court injunctions. Yet for now the regulatory landscape is in flux. Corporations embroiled in disputes with the FTC, such as Facebook, are claiming that the agency lacks the authority to proceed. Facebook is still smarting from a previous FTC case from 2019 in which it paid a $5 billion penalty for privacy violations.

Given the similarities between the FTC Act and the law governing the Food and Drug Administration, there may be challenges to the FDA’s use of injunctions. The ruling is even being cited in disputes not involving federal agencies. A group of generic drug manufacturers being sued by state attorneys general for price-fixing is claiming that the ruling should also bar actions seeking injunctive relief under Section 16 of the Clayton Act.

On the other hand, there are indications that the FTC may choose to partner with state AGs on consumer protection actions in areas other than antitrust, relying on their power to seek relief from corporations over issues such as unlawful debt collection and privacy violations.

Legal observers also believe that the Consumer Financial Protection Bureau may help fill the gap created by SCOTUS, as least in financial sector cases, given that its authorizing legislation, the Dodd-Frank Act, explicitly allows it to sue for restitution and other relief without first going through lengthy administrative proceedings. It can also do so against a broader range of misconduct.

Nonetheless, it is disappointing to see the FTC and possibly other agencies lose the ability to bring prompt action against corporate miscreants. Business misconduct shows no signs of abating, so regulators need as many tools as possible to end the abuses and force corporations to compensate those who have been adversely affected.

Ending Corporate Impunity

Corporate America’s embrace of voting rights, racial justice and other social causes is laudable, but it is also designed to make us forget how much the private sector profited from the retrograde policies of the Trump Administration. This was not just a matter of the business tax cuts.

Thanks to deregulation and weakened enforcement, big business was able to operate with a much higher level of impunity. The latest evidence of this comes in a new report from Public Citizen documenting the declining volume of prosecutions of corporate crime during the Trump years.

Using data from the U.S. Sentencing Commission, Public Citizen finds that the number of federal prosecutions of corporate criminals fell to a new low of just 94 in fiscal year 2020. This was a drop of 20 percent from the year before, a plunge of two-thirds from the peak of 296 in 2000, and the lowest on record since the Commission started releasing corporate prosecution statistics in 1996.

While adopting a lackluster approach to prosecutions, the Justice Department was more inclined to offer rogue corporations leniency agreements. Employing data from the Corporate Prosecution Registry, Public Citizen points out that DOJ substantially increased its use of deferred prosecution and non-prosecution agreements in FY2020.

Connecting the two trends, Public Citizen finds that the leniency agreements amounted to 32 percent of the total of all cases against corporations, a record amount.

The report dispels any suggestion that declining prosecutions and increasing leniency agreements are signs that Corporate America has become better at obeying the law: “On the contrary, they are signs that, despite Trump’s ‘law and order’ rhetoric and his administration’s brutal crackdowns on immigrants, racial justice protestors and low-level offenders, the administration went out of its way to avoid prosecuting corporate criminals. The result is the creation of an environment of corporate impunity.”

The Public Citizen report focuses on criminal cases, but there were similar trends in civil enforcement. For example, the data in Violation Tracker shows that the DOJ’s civil division, which handles matters such as False Claims Act cases against rogue federal contractors, announced only 44 corporate pleas and settlements in 2019, down from 137 announced by the Obama DOJ in 2015.

Fortunately, these findings are now mainly a matter of historical interest. The current question is how things will change under the Biden Administration. Since Merrick Garland has been attorney general for a short time, it is too soon to reach any clear conclusions.

It is widely expected that DOJ will be taking a more aggressive stance. One major law firm advised its clients that white collar enforcement activity will “substantially increase,” adding: “Not only will the government take a more aggressive posture, but the proliferation of whistleblower programs and the creation of new enforcement tools means that prosecutors will be armed with more information and resources than ever. Companies should remain vigilant as risks shift and consider taking steps to ensure they adapt their compliance programs and controls accordingly.”

When corporations are made to feel they need to be more careful, we humans can breathe a bit easier.

Exercising Enforcement

It is not surprising that Peloton Interactive Inc. thought it could refuse to tell the Consumer Product Safety Commission the identity of a child who was killed in an accident involving one of the company’s treadmills. And it was not surprising that Peloton was shocked when the CPSC unilaterally issued a press release urging owners of the Tread+ to stop using the machine in homes with small children or pets.

The reason is that the CPSC has long been one of the more toothless of the federal regulatory agencies. As shown in Violation Tracker, over the past decade it has brought only about 50 enforcement actions involving monetary penalties. During the Trump Administration, the agency almost faded away, bringing only seven actions. There were none at all during the final two years of Trump’s tenure.

Instead, the CPSC has relied on the willingness of manufacturers to reveal safety problems on their own and voluntarily recall defective products. Peloton did disclose the fatal accident on its website and to the CPSC, but by withholding key details it thwarted the agency’s ability to investigate the matter. It also softened the negative impact of the announcement by making the disingenuous claim that it was protecting the privacy of the family involved.

Peloton also applied more of its own spin in the announcement by suggesting it was enough for users to “make sure” that the space around the equipment is clear. By contrast, the CPSC press release, which the company denounced as “inaccurate and misleading,” noted that it was aware of 39 incidents involving the Tread+, including at least one that occurred while a parent was running on the treadmill. The agency said this indicated that the risks were not limited to situations in which a child has unsupervised access to the treadmills, which cost more than $4,000.

Issuing the release without the company’s consent was a remarkable step for the CPSC, given that a provision of the Consumer Product Safety Act known as Section 6(b) restricts the ability of the agency to reveal company-specific information.

The agency is also limited in its ability to impose mandatory recalls. To do so, the CPSC would need a court order, meaning that a recalcitrant manufacturer could tie up the matter in protracted litigation, all while continuing to sell the dangerous product.

All of this is to say that the less than dazzling enforcement record of the CPSC is to some extent the result of structural impediments. Past attempts to remove those restrictions were not successful, but the Peloton dispute has prompted a renewal of those efforts. U.S. Senator Richard Blumenthal (D-CT) and U.S. Representatives Jan Schakowsky (D-IL) and Bobby L. Rush (D-IL) recently introduced legislation that would repeal Section 6(b).

Corporate lobbyists have worked so hard to promote the idea of over-regulation that many people will be surprised to hear the extent to which an agency such as the CPSC is prevented from taking strong action. The Peloton case is a reminder that the real problem is often not too much regulation but too little.

Public Money and Public Health

When a company is the subject of front-page stories about serious misconduct, the firm would normally have a track record of regulatory infractions documented in Violation Tracker. Yet Emergent BioSolutions, which has had to throw out millions of doses of Covid-19 vaccine because of serious production flaws, does not have a single entry in the database.

This is not because Emergent has had a perfect track record until the present. On the contrary, investigations by the New York Times, the Washington Post and the Associated Press have reported that probes by two federal agencies and by Johnson & Johnson, which contracted with Emergent to manufacture the vaccine, had found serious deficiencies, especially with regard to its efforts to prevent contamination.

If you read those articles carefully, you will see that the findings come from unpublished documents obtained through Freedom of Information Act requests or that were leaked to reporters. In other words, the public was unaware of the deficiencies being found by inspectors from the Food and Drug Administration and J&J auditors. There were no public enforcement actions against the company that would have shown up in the regulatory data collected for Violation Tracker. There are also no substantive references to regulatory issues in the publicly traded company’s 10-K filing.

I also searched the Nexis news archive for articles or press releases about Emergent. Prior to the recent revelations, almost all the coverage about the company focused on the numerous government contracts it has received. Two decades ago, it was the nation’s sole producer of the anthrax vaccine, as a result of which it received many millions of dollars in federal contracts. It also received funding to work on drugs for Ebola and Zika prior to getting on the Covid-19 gravy train.

Among the agencies providing this backing has been the Biomedical Advanced Research and Development Authority, an office within the Department of Health and Human Services. BARDA was apparently aware of shortcomings at Emergent but did little about them. The Times investigation found that in dealing with the company the agency “acted more as a partner than a policeman.”

Along with the federal largesse, Emergent has received millions of dollars in state economic development incentives. In 2004, Maryland provided up to $10 million in assistance for the facility that was producing the anthrax vaccine. The state provided a $2 million loan when Emergent built a new headquarters in 2013, with Montgomery County and the city of Gaithersburg kicking in another $1 million. More public money was provided to the company’s Baltimore operations, where the Covid-19 work has been performed pursuant to an estimated $1.5 billion in manufacturing contracts.

While the production problems were kept quiet, Emergent was able to pretend that all was well at the company. Its CEO Robert Kramer’s total compensation jumped to $5.6 million last year. The company’s stock price at one point last summer soared to $135.

Now all that is over. The stock price is at less than half that level. The company is facing multiple investigations whose results are likely to be made public. Kramer should not expect a big boost in pay.

It is unclear how much Emergent’s practices have set back the country’s campaign to defeat the coronavirus. Yet it seems clear this was an egregious case of a corporation living high on public money without paying adequate attention to public health.

The Infrastructure of Workplace Protection

Republicans are having limited success turning the public against the Biden Administration’s $2 trillion infrastructure plan by claiming the proposal is too wide-ranging. A new NPR poll shows solid support not only for the provisions relating to roads and bridges but also for spending on modernizing the electric grid, achieving universal broadband coverage and even expanding long-term healthcare.

Given the sweeping scope of the proposal, it is not possible for pollsters to ask about every component. I suspect there would also be high numbers for a portion of the plan that has received little attention. That is the provision that would strengthen the capacity of federal departments responsible for enforcing workplace protections.

Biden is proposing that $10 billion be spent to beef up agencies such as the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission and the Wage and Hour Division. The plan states: “President Biden is calling on Congress to provide the federal government with the tools it needs to ensure employers are providing workers with good jobs – including jobs with fair and equal pay, safe and healthy workplaces, and workplaces free from racial, gender, and other forms of discrimination and harassment.”

It makes sense to push for improvements in job quality at the same time the country is striving to bring the quantity of jobs back to the levels seen before the arrival of Covid-19. Workplace abuses predated the pandemic, in some ways got worse during the past year—especially with regard to job safety in industries such as meatpacking—and will be with us long after the health crisis abates.

Congress has perennially failed to fund these agencies adequately, leaving them with insufficient numbers of inspectors and investigators. For example, the most recent edition of the AFL-CIO’s Death on the Job report notes that the number of workplace safety inspectors declined steadily during the Trump years both at the federal and state levels. These staffing shortages create a form of de factor deregulation as many workplace abuses go undetected and unprosecuted.

Biden’s plan also briefly addresses another problem with workplace enforcement: artificially low penalty structures, especially at OSHA. The Administration calls for increasing these penalties but does not provide specifics.

The penalty situation at OSHA is not as bad as it used to be. Changes made during the Obama Administration, including 2015 legislation that extended inflation adjustments to workplace safety fines, helped raise penalty rates. The maximum for a serious violation is now $13,653 and the maximum for a willful or repeated violation is $136,532.

These maximum amounts do not tell the full story. As Death on the Job points out, the average penalty for a serious violation in fiscal year 2019 was only $3,717. The average for willful violations was $59,373 and for repeat violations it was $14,109. Even in cases involving fatalities, the median penalty was just $9,282.

The cumulative effect of low OSHA penalties can be seen in the data in Violation Tracker, which only includes fines of $5,000 or more. OSHA accounts for 37 percent of the cases in the database but less than 1 percent of the total penalty dollars. Numbers such as these cause too many employers to conclude that their bottom line is best served by skimping on workplace safety and paying the meager fines that may or may not be imposed by OSHA.

The Biden infrastructure plan could begin to change that.

The Violation Tracker Origin Story

The article and dazzling infographics on Violation Tracker just published by Fortune are not only great publicity for the database. They also provide an opportunity to recall how the idea for a resource on corporate misconduct came about in the first place.

As the Fortune piece mentions, the origin story dates back to 1980, when I was a young researcher on the staff of that same magazine. Yet there is more to be said about what occurred behind the scenes during that project and its aftermath.

Back then, Irwin Ross, a contributor to the magazine, had seen a news article about small-business corruption in Chicago and thought it would be interesting to explore similar behavior among large companies. His assumption—and that of Fortune’s editors—was that illegality was rare in big business.

After being assigned to the project, I set out to disprove that premise by gathering as many cases as I could involving our sample universe of just over 1,000 companies that had appeared on the Fortune 500 and related lists at any point during the previous ten years. The editors decided to limit the scope of the research to five categories: bribery, criminal fraud, illegal political contributions, tax evasion, and criminal antitrust violations.

To the dismay of the editors, I found that quite a few of the corporations – 117 to be precise – had been the subject of a successful federal prosecution during the specified time period. Among these was Fortune’s then-parent, Time Inc., whose subsidiary Eastex Packaging had pleaded no contest to a price-fixing charge.

After much hand-wringing, Fortune’s editors decided to publish the list of the cases, along with an article by Ross, in the December 1, 1980 issue with the headline “How Lawless Are Big Companies?” and the subhead “A look at the record since 1970 shows that a surprising number of them have been involved in blatant illegalities.” The story was featured on the cover with a photograph depicting an executive being fingerprinted by a U.S. Marshal.

As one might expect, the companies included in the list were quite displeased. To their credit, Fortune’s editors did not retract or disown the article, but they did agree to give one of the corporations an opportunity to respond.

The December 29, 1980 issue contained a piece by William Lurie, general counsel of International Paper, headlined “How Justice Loads the Scales Against Big Corporations.” Calling my list “simplistic and misleading,” he tried to explain why IP had felt compelled to plead nolo contendere to price fixing charges. His argument was essentially that it was simply too risky for a company to fight such charges in court, given that a guilty verdict would open the door to crushing damages in a follow-on civil suit.

This was not exactly a profession of innocence. In fact, as the Fortune article noted and Lurie acknowledged, no contest is tantamount to a guilty plea. Lurie’s argument, like nolo itself, served as a way for corporations to save face after being labeled corporate criminals. His piece also took the pressure off Fortune editors for diverging from what was then their unvarying defense of corporate behavior.

For me, the experience created a life-long fascination with documenting corporate misconduct. I later learned that this kind of research had begun much earlier, especially through the work of the sociologist Edwin Sutherland. When his book White Collar Crime was published in 1949, the company names were removed. It was only in 1983 that an unexpurgated version was published by Yale University Press.

Following in the tradition of Sutherland’s book and other work such as the Project On Government Oversight’s Federal Contractor Misconduct Database, Violation Tracker is designed to show that lawlessness among large corporations is a problem that persists.

Note: drop me a line at pmattera@goodjobsfirst.org if you can’t get behind the Fortune paywall and want to see the whole story.

The State of Environmental Enforcement

Climate change is the most pressing environmental issue of our time, but we still have to contend with plenty of air pollution, water contamination and hazardous waste proliferation. That task will be easier now that the EPA is abandoning the lax practices of the Trump Administration and is once again getting serious about enforcement.

Yet the federal agency will not be taking on the challenge by itself. Enforcement of laws such as the Clean Air Act and the Clean Water Act is a function shared by the EPA and state environmental agencies. Not all states are equally enthusiastic about this responsibility.

Evidence of this can be found in the latest expansion of Violation Tracker consisting of more than 50,000 penalty cases my colleagues and I at the Corporate Research Project collected from state environmental regulators and attorneys general and just posted in the database. An analysis of the data is contained in a report titled The Other Environmental Regulators.

These cases include $21 billion in fines and settlements (limited to those of $5,000 or more) imposed against companies of all sizes, with the largest amounts coming in actions brought against BP in connection with the 2010 Deepwater Horizon disaster in the Gulf of Mexico.

It should come as no surprise that the oil and gas industry accounts for much more in aggregate penalties — $8.2 billion – than any other sector of the economy. Utilities come in second with $6 billion. The worst repeat offender is Exxon Mobil, which was involved in 272 different cases with $576 million in total penalties. Those cases were spread across 24 different states.

That last number might have been even higher if all states were diligent about their enforcement duties. Instead, we found disparities that go beyond what might be expected from differences in size. There were unexpected results at both ends of the spectrum.

Given its reputation for being hostile to regulations, we were surprised that Texas turned out to have far more enforcement actions than any other state—over 9,500 since 2000. The Texas Commission on Environmental Quality and the Railroad Commission of Texas (which oversees pipelines and surface mining) may be cozy with industry when it comes to rulemaking and permitting, but they seem to be serious about enforcing regulations that are on the books.

At the bottom of the list are states such as Oklahoma and Kansas that appear to have brought only a tiny number of enforcement actions over the past 20 years. That is the conclusion we reached because the states post no significant enforcement case information on their websites and denied our open records requests for lists of cases. Little also turned up in news archive searches. It is difficult to believe that the many oil and gas operators in Oklahoma, for instance, hardly ever committed infractions.

Given that state environmental agencies are, to a great extent, enforcing federal laws, there should be much greater consistency in their oversight activities and their disclosure of those efforts.

Note: When using Violation Tracker you can locate state environmental cases by choosing one of the environmental listings in the Option 1 state agency dropdown, or you can do an Option 2 search that includes State as the Level of Government and Environmental Violation as the Offense Type.

Inconsistencies in State Environmental Disclosure

We all know that state governments vary greatly in their policies on a variety of issues. I just discovered the degree to which they also diverge in their willingness to disclose data on their implementation of those policies.

I learned this lesson in the course of gathering data from state environmental regulators across the country for a major expansion of the Violation Tracker database. Next week, my colleagues and I will post 50,000 new entries from those agencies along with a report analyzing the data.

This is the culmination of months of effort to collect data on state environmental enforcement actions over the past two decades. A few state agencies made the process easy by putting the case data on their websites in a form that could be downloaded or scraped.

Others post large archives of individual case documents, sometimes numbering in the thousands. Many agencies put no enforcement information at all on their sites.

This meant we needed to file open records requests—lots of them—for lists of cases with information such as company name, penalty amount, date, category and facility location. Given that some states have more than one environmental agency and some required that separate requests be sent to different divisions (air, water, hazardous waste, etc.), we ended up filing about 90 requests.

The good news is that nearly all states ultimately came through with some information. This was not always in our requested format (a spreadsheet) or time period (back to 2000), but we made the best of what was sent.

There were half a dozen denials, which fell into two main categories. Agencies such as CalRecycle and the New York Department of Environmental Conservation declined to provide lists of case details contained in documents posted on the site. In other words, they felt no obligation to make our data collection more convenient. We thus had to sift through hundreds of documents and create our own lists.

More troubling was the situation with agencies such as the Kansas Department of Health and Environment and the Oklahoma Department of Environmental Quality, which turned down our requests even though they provide no significant enforcement information on their websites. For these agencies, we checked non-official sources such as the Lexis-Nexis news archive and found references to a small number of cases.

Nearly all of the agencies that denied our open records requests based their rejection on the claim that providing the lists we were seeking would, in effect, require the creation of a new record, whereas their state transparency laws only obligated them to supply existing records.

This position is antithetical to the spirit of open records laws. It is especially troubling when it comes to information on environment enforcement, an area in which states are carrying out a function delegated to them by the federal government under laws such as the Clean Air Act.

Just as the U.S. Environmental Protection Agency posts data (through ECHO) on the enforcement actions it carries out on its own, so should the state agencies partnering with EPA be fully transparent about their activities. That would mean not just responding favorably to open records requests for comprehensive data but also posting their enforcement data on the web, ideally in a standardized format.

Accessibility is an essential part of meaningful transparency. It should not be necessary to file 90 open records requests to discover how a key government function is being carried out.

Happy Sunshine Week.