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NY Commissioner Upholds the Right to Freedom of Information - Should Virginia Take Note?

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New York State Division of Homeland Security and Emergency Services Commissioner Jerry Hauer

The U.S. Department of Transportation requires all railroads operating trains containing large amounts of Bakken crude oil to notify local first emergency responders about the operation of these trains through their locales.

BNSF Railway and Union Pacific Railroad are reported to have asked state officials to sign a non-disclosure agreement (NDA) before they agreed to disclose the required information. Now, it’s not just BNSF and Union Pacific that are seeking to shield information from public view.

CSX Transportation and Canadian Pacific Railroad have insisted upon an NDA with New York State. Earlier, CSX stated that states which do not comply with their demand for an NDA will not receive the information.

But New York State Division of Homeland Security and Emergency Services Commissioner Jerry Hauer is doing what Virginia has not. Hauer has made a public decision about NDAs for companies like CSX Transportation and the Canadian Pacific Railroad Company, stating that they are not exempt from New York’s Freedom of Information Law (FOIL).

He says it is not in the interest of “protecting public safety” to withhold information about routes for trains transporting hazardous materials.  Therefore, New York will not agree to an NDA, whether expressly requested or implicit. Route information will be distributed to local emergency planners and made available to the public through the FOIL process.

The decision is a stark contrast to Virginia’s decision to sign an NDA with CSX regarding oil transportation. Jeffrey Stern, Virginia Emergency Management Coordinator, signed the agreement.

CSX notifies local emergency responders of the estimated number of oil units that move on a weekly basis, train routing information with maps, and emergency response information. Though city officials will have information regarding what is moving through and when, in Virginia, it is not information available to the public.

In the interest of Virginia residents’ public safety, it is a worthwhile effort to reevaluate the decision to sign an NDA. What really is at stake is balancing public safety against arming or educating criminals or potential terrorists. But certainly, safeguards can be  created so that the public is adequately protected while criminals or potential terrorists won't know the time or dates that dangerous oil shipments are moving through a town.
Richard N. Shapiro
Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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