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    Duly Diligent
    What’s Really “Reasonable”?
    Entry posted March 23, 2011 by Duly DiligentMember, last edited January 19, 2012
    1320 Views, 6 Comments
    Title:
    What’s Really “Reasonable”?
    Entry:

    I recently read a Seattle Times article on the impact the Freedom of Information Act is having on public agencies in the Northwest, including city and county departments, the Department of Ecology, and the regional EPA office.  Due to recurring budget cuts and employee layoffs, these agencies are unable to keep up with the growing demand for public records from both businesses and private parties.  The enormity of the resulting production backlog is impacting the environmental due diligence world.  How?

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    Environmental Professionals are aware that they are required to review “reasonably ascertainable information” about the subject property when conducting a Phase I ESA.  Reasonably ascertainable information falls into three categories.  Information that is:

    1)      Publicly available;

    2)      Obtainable from the source within reasonable time and cost constraints; or

    3)      Practically reviewable.

    Information is considered reasonably ascertainable if it is provided from the source within 20 calendar days of the request at a normal cost to cover the source’s retrieval and duplication costs.  But acquiring information that falls into the second category has become a long shot.  Why?

    It has been reported that 20 percent of the annual budget for several Seattle-area agencies is spent fulfilling requests for information—a substantial amount of money that many agencies can’t afford to divert from business operations during these lean economic times.  Several local agencies have responded to the influx of requests by limiting the number of hours their employees devote to researching, retrieving, and copying records for the public—in some cases setting a cap as low as 6 hours a month.  Since that limit may be reached in fulfilling a single request, what happens to those of us who truly need these records to fulfill ASTM requirements?  According to some agency representatives, the currently out-of-control production backlogs will lead to a waiting-list system of first-come, first-served.  No special privileges.  Because you may not see your requested files for several months, records required for a Phase I ESA are no longer “reasonably ascertainable.”

    I recently requested information from a public agency in Seattle and was surprised to receive a letter stating my requested information would be provided within 90 business days and at the hourly rate of the agency employee researching, retrieving, and copying the file.  I was asked to submit a check for $100 to cover the estimated cost of providing the approximately 25-page file I requested before they would process my request.  Ninety business days?  One hundred dollars?  Seriously?

    Although the ASTM E1527 Task Group has discussed the 20-day limit and the possibility of revising related language in the Standard, such a revision wouldn’t help the Users of Phase I ESA reports.  The majority of Phase I ESAs are completed during property transactions with shortened due diligence periods.  Rarely do we have 20 days to produce the entire report.  So changing the Standard language to allow more time to receive requested information wouldn’t address the real issue.

    I don’t see an easy fix to this problem any time soon.  As long as Grandma continues to request thousands of pages of genealogy files and Mr. Johnson pursues his new hobby of researching every water line in his neighborhood, I remain on the endless waiting list of public requests.  Is this really reasonable?

    Keywords:
    ASTM E1527

    Comment

     

    • jessedphillips
      posted March 23, 2011 by jessedphillipsElite Contributor

      You are exactly right.  Normally, we have a week or so to turn around projects.  Even if agencies comply with the 20 day limit and do so for free, we frequently have to issue the report without responses.  We deal with this by noting that information was requested and if pertinent information is provided, we'll forward it to the client.  Not ideal to say the least.  Not in my opinion anyway. 

      Another part of the second category that is presenting more of a problem is the cost contraint portion.  When firms are undercutting each other's costs in a race to the bottom, a $20 fee could be considered unreasonable.  I too have had fees totalling three digits.  Frustrating when our prices are based on no fees and then still have razor thin margins. 

      The third category is becoming a problem for me personally.  When I request files for a site, I'll frequently get dozens of electronic files (totalling hundreds and sometimes literally thousands of pages) which are not in any order.  Granted, the files are for one site, but for a site which has had two or three issues, this can get difficult.  It's tempting to throw in the towel sometimes and say, "this site has a history of filth, so we recommend some sampling," but. to date, I've reviewed them all, often at a loss. 

    • DerekShowerman
      posted March 24, 2011 by DerekShowermanElite Contributor

      Federal agencies are required to respond to a FOIA request within 20 working days, excluding Saturdays, Sundays and legal holidays. Unfortunately, and as already pointed out, public record law differs from state to state, and even more so within local municipalities. Case in point, I recently initiated a seemingly simple FOIA request, regarding an EPCRA issue, at a state level that ended up requiring the approval of the county prosecutor.

      From my perspective, and having served as the senior environmental advisor on a corporate acquisition team for many years, the quality and completeness of an ESA will always outweigh the commodity style ESA that hinges upon pennies and dimes. In that regard, prospective purchasers should have their own procedures in place for overseeing an ESA and be intimately involved in the due diligence process, and where and when possible, be willing to contact agencies directly to obtain information. It may not always work, but a phone call to the Division Chief from the Environmental Director of the prospective purchaser usually gets a prompt response
      Posted by Allan "Dusty" Currie

    • Brian Olin, PG
      posted March 31, 2011 by Brian Olin, PGSuper Contributor

      I have found this and have seen fees as high as $75/hour or one municipality that has a special FOIA request for Phase I ESAs, they charge $250 and it takes up to 30 days.  We also indicate that with not receiving records in time by noting that information was requested and if pertinent information is provided, we'll forward it to the client.  Usually we can make conclusions form the other information we obtain.  In regards to the cost, I usually give them a cost limit and ask them to contact me before going over after having several sites requesting fees well over 3 digits.  Once you get to a three digit fee I no longer consider that reasonable and usually discuss that with the client.  especially if it will take them a month or two to respond and the report is done and the deal is closed.

    • HarryC
      posted March 31, 2011 by HarryCContributor
      As a genealogist who is also an Environmental Professional I resent the implication that "Grandma" requesting "thousands of pages of genealogy files" is the cause of the FOIA backlog. There are several reasons why this is not "Grandma's" fault. 1. "Grandma" is every bit as entitled to her genealogical files as any user of this forum. It is elitist to claim otherwise. 2. "Grandma" doesn't request "thousands of pages" of anything. Genealogical files tend to be much smaller than the files of interest for Phase Is. It is true that thousands of genealogists might request thousands of pages, but only from very large local governments. And, see point 1 above--they are just as entitled to those files as you are. 3. The files of interest to a genealogist aren't the files of interest for a Phase I. They aren't generally found in the same office, often not in the same building, and frequently are held by different units of government. When I do a Phase I, I am generally interested in local building departments, local fire departments, and state environmental departments. When I am ancestor hunting I am interested in vital records--births, marriages, deaths. Depending upon the state and jurisdiction, those might be held by county or state health departments or archives. They aren't held by local building departments. It is true that smaller local governments might have a few clerks who handle all department records, but those governments get fewer genealogical AND Phase I requests. Even in these cases, genealogical records are often held by different levels of government than Phase I records. If there is a conflict it is almost certainly a bottleneck created by the government unit itself. I note that governmental legal departments often insist on reviewing all FOIA requests before passing them on to the department that actually has the records. This legal department bottleneck is the fault of the legal department and cannot be blamed on genealogists or any other members of the public. Attempts by anyone to blame members of the public for FOIA backlogs should be viewed as mere attempts to cover up the inefficiency of the government.
    • kevin
      posted April 1, 2011 by kevinSuper Contributor

      Keep calling for lower taxes and less government and this is what you get.  The solution is for public agencies to hire more folks and charge appropriate fee's when public access to records is not feasible.  Users fee's - they suck, but they work.  And, to allow folks to do the research themselves when information is accessable. 

    • Tom Speight
      posted April 18, 2011 by Tom SpeightElite Contributor

      This is one reason Massachusetts is really pushing the online data thing-- by midsummer all the remediation files from the mid-80s up to current should be available for free download off the DEP online database.  Wetlands, solid waste, etc. will be along eventually.