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June 16, 2003
TO:
Associate General Counsel (General
Law)
Department of Homeland Security
Washington, DC 20528
FROM:
The Society of Environmental
Journalists
P.O. Box 2492, Jenkintown, PA 19046
Telephone: (215) 884-8174 Fax: (215) 884-8175
sej@sej.org
RE: PUBLIC ACCESS TO
CRITICAL INFRASTRUCTURE
INFORMATION
The Society of Environmental
Journalists submits these views to the
Department of Homeland Security in
response to its Notice of Proposed
Rulemaking [Federal Register: April 15,
2003 (Volume 68, Number 72), Pages
18523-18529], "Procedures for Handling
Critical Infrastructure Information;
Proposed Rule."
Our remarks concern the
Department's proposed rule implementing
Section 214 of the Homeland Security Act
(PL 107-296) and broadening provisions of
that law which would restrict public
access not only to Critical
Infrastructure Information (CII), but to
other information needed by the public to
protect their own health and
safety.
The Society of Environmental
Journalists (SEJ) is an organization of
individual working journalists dedicated
to improving the quality, accuracy and
visibility of environmental reporting.
Founded in 1990 and based in Jenkintown,
Penn., SEJ consists of more than 1,200
journalists, educators and students.
SEJ's programs include annual and
regional conferences; a daily
environmental news service; a quarterly
magazine; a biweekly story tip sheet; an
annual journalism contest; a
comprehensive Web site; eight e-mail
listserves; a diversity program and a
mentoring program.
Working through its First
Amendment Task Force, SEJ addresses
freedom of information, right to know and
other news gathering issues of concern to
journalists reporting on environmental
topics.
Purpose of these
comments
We are very concerned that the
Department is proposing to broaden
restrictions on public access to
information beyond those intended or
authorized in the law. We oppose the rule
in its current form and urge the
Department to draw it more narrowly, so
as to prevent possible abuse of CII
secrecy provisions.
We urge the Department to
remember that several important public
purposes are served by giving the public
the broadest feasible access to
information about hazards to
environmental health and safety. While a
new caution is certainly indicated in
light of the September 11, 2001, attacks,
that is not the only lesson to be
remembered. The 1984 Bhopal tragedy
showed that thousands of people were
killed, not merely by industrial hazards,
but actually by their unawareness of the
threat the Bhopal plant presented to
their lives and health. Many major
environmental laws actually require
disclosure of hazard information, and the
important public policy reasons for this
remain valid. Far more people in the
United States have died from dam
failures, fuel explosions, chemical
accidents, pipeline failures, and other
preventable hazards than from terrorism.
But these deaths are only preventable if
the public is aware of the hazards and
urges companies and the government to
provide real safety rather than hide the
hazards.
The press plays a crucial role
in alerting the public to the dangers
they may face. We believe that, without
openness, the press will be hampered in
its vital purpose of giving citizens the
environmental, health and safety
information that individuals need to
function effectively in a democracy and
make good decisions about their lives,
personal and civic.
We enumerate our concerns more
fully in the specific comments
below.
Specific Comments
1. The proposed rule clearly exceeds
both legal authority and the intent of
Congress by extending the CII program to
include all federal agencies instead of
just the Department of Homeland Security
(DHS). An amendment proposing to do this
was decisively defeated in a House
roll-call vote. The CII program must be
limited to information submitted directly
to DHS.
2. The definition of "Critical
Infrastructure Information" remains so
vague as to invite abuse by submitters.
The statement in the Background section
that "the Department relies on the
discretion of the submitter as to whether
the volunteered information meets the
definition" of CII suggests that the DHS
intends to give submitters wide latitude
and the difficulty of properly validating
information. Submitters should not be
permitted to determine whether the
information they submit meets the
definition.
a. The term "not customarily
in the public domain" is insufficiently
precise. It could be interpreted to
mean information the public currently
has a right to, but for some practical
reason has not actually accessed. This
interpretation could be ruled out by
omitting the word "customarily."
b. The term "related to" is
also troubling in its vagueness
["related to the security of critical
infrastructure or protected systems"].
The rule should very clearly specify
precisely what relation is meant to
qualify.
c. Sec. 29.2 (b) (3), which
refers to "any planned or past
operational problem or solution
regarding CII or protected systems,
including repair, recovery,
reconstruction, insurance, or
continuity ..." is so broad as to
seemingly forbid any government
discussion of dam safety, pipeline
safety, chemical plant safety, etc., or
efforts to regulate or improve the
safety of those facilities.
3. The meaning of "voluntary"
or "voluntarily" submitted information
remains confused despite efforts to
define it. If such information excludes
only information "submitted in the
absence of DHS's exercise of legal
authority to compel" — then it appears
to include information which other
agencies do have the authority to compel
submission of in the course of regulating
facilities under law for public health
and safety. For example, it might allow
removal of a chemical plant's five-year
safety record, currently required to be
disclosed by law, from the public record.
This is a critical failing.
4. The program and procedures
for reviewing and validating whether
claims of CII protection are justified
appears to be aimed primarily at
protecting the interests of the
submitters rather than protecting the
interests of the public.
a. Submitted information is
treated as protected unless and until
determination is made otherwise. The
burden of proof remains entirely on a
single party (the Program Manager) to
determine that information does not
qualify for protection. Nothing in the
regulation spells out criteria for
determining whether the Program Manager
has resources sufficient to
accomplishing this vast job. The
default of protection may be made
inevitable by underfunding and
understaffing the program. This must be
changed.
b. There are no procedures
for any outside parties to challenge
the classification of claimed CII as
protected. There should be.
c. There are no procedures
clearly spelled out for any appeal of
the Program Manager's decisions in
validating claimed CII. There should
be.
d. There are no deadlines
for the Program Manager to make
validation decisions. There should
be.
e. Provisions must be made
for additional review and challenge of
information's protected status whenever
a request is made for it through the
Freedom of Information Act.
f. There must be procedures
for allowing release of
portions of a record in
accordance with FOIA in cases where
protection of those portions is not
justified as CII.
We are grateful for the
opportunity to comment on this proposed
rule.
Respectfully submitted,
Ken Ward Jr.
First Amendment Task Force Chair
James Bruggers
SEJ Board Liaison
Joseph A. Davis
SEJ Watchdog TipSheet
Editor
Dan Fagin
President
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The Society of
Environmental Journalists
P.O. Box 2492 Jenkintown, PA 19046
Telephone: (215) 884-8174 Fax: (215)
884-8175
sej@sej.org
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Society of Environmental Journalists
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