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Back to SEJ-speaks-on-FOI-issues page
November 14,
2002
COMMENTS OF THE REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS AND
THE SOCIETY OF ENVIRONMENTAL JOURNALISTS
TO PROPOSED RULES
RE: PUBLIC ACCESS TO
CRITICAL ENERGY INFRASTRUCTURE
INFORMATION
The Reporters Committee for
Freedom of the Press and the Society of
Environmental Journalists submit these
views to the Federal Energy Regulatory
Commission in response to the September
5, 2002, invitation for comments. Our
remarks concern its consideration of
rules revisions regarding public access
to Critical Energy Infrastructure
Information (CEII) that would eliminate
unfettered general public access to that
information.
The Reporters Committee is a
voluntary, unincorporated association
established in 1970 by news editors and
reporters to defend the First Amendment
and freedom of information rights of the
print and broadcast media. The Reporters
Committee publishes a quarterly magazine,
The News Media & The Law, as well as
a bi-weekly newsletter, News Media
Update. We produce several Freedom of
Information publications including guides
to use of the federal Freedom of
Information Act, to use of each of the
open records laws in the 50 states and
the District of Columbia, and a guide to
state laws on access to electronic
records. The Reporters Committee also
sponsors, as a special project, the FOI
Service Center, which advises reporters
on issues of access to governmental
records and proceedings.
The Society of Environmental
Journalists is the oldest and largest
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;
eight email listservs 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
Commission is considering the removal of
blocks of information it labels as CEII
from the public, and that it will overuse
exemptions to the Freedom of Information
Act to block off categories of
information. We oppose the changes
suggested here.
We believe that the proposals
here could interfere with the public's
access to information that will alert it
to the existence of vulnerabilities in
the critical infrastructure. We believe
that by removing access issues from the
Freedom of Information Act function, the
agency will be unable to capture the
expertise of its own access professionals
in judging who should have information;
that separate processing will lead to
delays in response; that existing FOI Act
exemptions suffice to protect against
legitimate harms from disclosure. We are
greatly concerned that the agency will
determine who needs to know information
based solely on business considerations
when there are others who have strong,
legitimate needs to know that will not be
addressed.
We address the concerns more
fully in our comments below. We also
comment specifically on the enumerated
proposals.
The tragic events of September
11, 2001, certainly justify a
reexamination by the federal government
of both the quantity and kind of
information that it makes public. But
decisions to now keep secret the types of
information that have previously been
available to the public should be made
only after conscientious deliberation.
The government should withhold
information only after a careful, case by
case determination that identifiable, not
speculative, harms could occur from
particular disclosures.
Judge Damon Keith of the Sixth
Circuit United States Court of Appeals
pointed out in a recent decision,
"Democracies die behind closed doors." In
his decision prohibiting the government
from holding deportation hearings in
secret, Judge Keith wrote, "When
government begins closing doors, it
selectively controls information
rightfully belonging to the people.
Selective information is misinformation
… a government operating in the
shadow of secrecy stands in complete
opposition to the society envisioned by
the framers of the constitution."
Detroit Free Press v. Ashcroft,
303 F.3d 681(6th Cir. 2002).
The public needs
information on the existence of
vulnerabilities
The threat of terrorism is real, but the
possibility that terrorists will study
government records and take advantage of
perceived weaknesses is speculative. This
is not how they have operated in the
past.
However, there exists a
definite need for the public to be able
to recognize vulnerabilities in order to
avert them. Public demand for reliable
infrastructures is possibly the greatest
assurance that measures will be taken to
strengthen them.
Safety of citizens from
accidents involving the nation's
pipelines and energy facilities is
critical. Between 1985 and 1994, 209
people were killed and 1,056 injured due
to gas pipeline accidents. Given the vast
system of pipelines crisscrossing this
country, such accidents are hardly
surprising. As one study notes, there are
"roughly 1,800,000 miles of gas and
liquid pipelines carry hazardous
products, including crude oil, refined
petroleum, liquefied natural gas, carbon
dioxide, and anhydrous ammonia to urban
areas and through environmentally
sensitive regions across the
country."
In August 2000, twelve people
were killed when a natural gas pipeline
exploded beneath their campsite near the
scenic Pecos River near Carlsbad, N.M.
The explosion created a 50 story high
flame so strong that it melted paint off
firefighting trucks that were only able
to come to within half a mile of
it.
Records unearthed after the
explosion revealed that El Paso Natural
Gas, the company that owned the pipeline,
had not broken any laws but that the
pipeline running under the Pecos River
campsite had not been checked for
corrosion since it was installed in
1950.
The news media have presented
similar tragic stories involving exploded
pipelines and hundreds of deaths over the
past decade. The public's ability to
monitor weaknesses is undoubtedly a
factor in any preventative measures that
are taken to avoid these
accidents.
These proposed guidelines
would inhibit the public's and media's
ability to see pipeline inspection
reports and other information on
infrastructure vulnerabilities.
Media organizations have used
freedom of information laws extensively
to expose defects in pipelines and
pipeline management. For example, records
obtained by the Austin American
Statesman after a 1994 pipeline
explosion near Corpus Christi, Texas,
showed that Koch, a large utility company
entrusted with keeping its pipelines in
proper working order, increased pressure
in its pipeline "after being warned about
corrosion and weaknesses in the steel."
They also showed that the company
underestimated the amount of oil spilled,
"a miscalculation of some 70,000 gallons"
for nine days, an error that probably
hindered cleanup efforts.
It is precisely this kind of
information that would be closed to the
general public under the proposed CEII
rules. Whether that information would be
useful to terrorists is uncertain, but
its usefulness in explaining to the
public what did go or can go wrong is
inestimable.
375.313 Delegations to the
Critical Energy Infrastructure
Information Coordinator
We object to this provision. A two tier
system is not adequate for public
information needs or necessary to protect
information. First, the delegation
removes decisions about information
access from access professionals. Second,
it sets up a structure that can defeat
the legally required time limits imposed
on agencies that process FOI requests.
Third, it misinterprets exemptions
available for withholding information.
Fourth, it rejects the well established
information rule that information in the
public domain is not subject to
exemptions from the FOI Act.
1. FOI staff should be
making information access
decisions
Release of requested information is
presently governed by the time tested
Freedom of Information Act, which has
been regularly amended to address
shortcomings, has been extensively
interpreted by the courts, and has served
as a vehicle for release of information
and protection of information under its
nine exemptions for nearly three
decades.
The FOI Act requires that only
the head of agency or his designated
representative can deny FOI requests.
While there are numerous FOI officials in
agencies who hold denial power, it is
clear that Congress did not intend for
the duty to be lightly assigned.
Trained and experienced FOI
officers and specialists who understand
complex FOI law grant and deny requests.
For instance, they are experienced in
determining what constitutes agency
records subject to disclosure, what
segregable portions of records must be
released and what business notification
procedures are necessary to give
submitters of information full
opportunity to challenge disclosures to
which they object. They have learned to
identify permissible and impermissible
uses of the exemptions under the law.
They are aware of the requirements of the
Electronic FOI Act and the mandate by
Congress to post on the Internet
information that is released to FOI
requesters and that will be of interest
to subsequent FOI requesters. Hopefully
they are also experienced in dealing one
on one with FOI requesters so that both
requester and agency can be satisfied
with the government's responses. Adhering
to the mandates of the FOI Act is not
simple. Duties of FOI staff cannot be
switched to some other agency office or
employee whose first responsibilities are
not the fulfillment of the requirements
of the act but in catering to the
business community's need for assurance
that exempt material will be kept
secret.
Under these rules, the Federal
Energy Regulatory Commission is proposing
to create a two tier system that will
have FERC's newly appointed Critical
Energy Infrastructure Information
Coordinator choose who can have access to
information the agency determines is
CEII. Access by the general public to
certain documents on existing and
proposed energy facilities, as well as
pipeline and electric grid flow
information would probably not be allowed
under the system that FERC
envisions.
FERC's notice states that the
agency has "no intention" of adopting an
approach that would ignore the agency's
obligations under the FOI Act. However,
by removing decisions about access to
information from the professional FOI
staff and placing them with an employee
whose mission is to keep the secrets that
businesses want kept, the agency will
intentionally skew the operation of the
FOI Act.
2. The separate processing
could further delay response to FOI
requests
The FOI Act requires agencies to process
requests within 20 working days except in
certain specific instances such as when
voluminous materials need to be collected
or there is a need to collect records
from many sources or to consult with
other agencies.
The act does not provide
additional time so that another office of
the agency can consult with submitters of
information. The Executive Order on
Business Notification is qualified by the
phrase "to the extent provided by law,"
specifically recognizing that the
Executive Branch cannot set aside a
mandate of Congress. There is no similar
caveat here limiting the procedures of
processing CEII information to the time
limits required by law.
3. FOI Act exemptions do
not justify full closure under these
proposed rules
a. Exemption 7(f) has limited
application
FERC claims that under FOIA it can
choose to deny requests for CEII under
Exemption 7(f) which provides for
exempting records when disclosure could
"reasonably be expected to endanger the
life or physical safety of an
individual." 5 U.S.C. 552(b)(7)(f)
However, agencies generally
invoke 7(f) to avoid the release of names
of law enforcement officers or others
mentioned in criminal investigation
files. The courts have recognized this,
which in turn makes the exemption of
limited relevancy. It is difficult to
imagine that a general fear that
terrorists might exploit weaknesses
revealed in CEII would merit use of the
exemption. It does not give FERC a broad
right to reject the FOI Act requests that
seek CEII information. See Maroscia
v. Levi 569 F. 2d 1000, 1002 (7th
Cir. 1977); Durham v. United States
Dep't of Justice, 829 F. Supp. 428,
433 (D.D.C. 1993).
b. FOI staff can already
invoke Exemption 2 as necessary to
protect CEII
Exemption 2 to the FOI Act allows an
agency to avoid disclosure of information
that would reasonably allow individuals
to "circumvent" agency rules or further
"unlawful actions by outsiders." DOJ
FOIA Update Summer 1989.
The Department of Justice
guidance, written long before the events
of September 11, 2001, advises agencies
that Exemption 2 is "fully available to
protect" vulnerability assessments
wherever it is reasonably determined
that, by disclosing the information,
there is a reasonable risk that the
information may be used to circumvent
"the law or some lawful requirement."
Ibid. Thus information that
would give graphic guidance to terrorists
on points of destruction might well be
exempt while records evaluating the
actual vulnerabilities would be of less
use to terrorists and of great utility to
citizens exercising oversight of their
government.
The Department of Justice
considers this provision to be of primary
importance. "In processing any FOIA
request for such records, agencies should
carefully apply the full measure of
protection afforded by Exemption 2
wherever necessary to prevent
'circumvention' harm." Ibid. The
other side of the coin, of course, is
that where it is unnecessary to withhold
information because "circumvention" is
unlikely, information would be disclosed
under normal FOI Act procedures.
c. Exemption 4 protects
considerable proprietary information
under the FOI Act.
Exemption 4 is discussed below in
regarding "privileged" information in the
proposed language to be incorporated at
18 CFR 388.112.
4. Making information
public to "some" waives FOI Act
exemptions even for CEII
FERC claims that maintaining the current
public access levels that exist under the
Freedom of Information Act (FOIA), while
establishing a parallel 'private' system
for recipients whom FERC finds
trustworthy, would make the system more
"efficient."
The agency rejects use of the
FOI Act because release to some
traditionally has meant release to any
who request the information. But the
concept of "waiver" of exemption would
not be affected by whether information is
released under the FOI Act or under
general disclosures to persons who in
FERC's estimation "need" the information.
Courts have held that when records are in
the public domain, there is a waiver of
FOI Act exemptions.
FERC apparently assumes that
the employee charged with preserving the
secrecy of some FERC records —
except from persons he or she deems as
having a "need" — disposes of
waiver but we suspect that is not the
case. It would certainly not be the case
for records that have already been in the
public domain and now are considered
nondisclosable because of the events of
September 11, 2001. Records that once
were public in the course of an agency's
(or submitter's) business would not now
enjoy the protection. Herrick v.
Garvey, 298 F.3d 1184 (2002).
Records that are routinely released to
groups of people other than an FOI
requester would surely be considered
"waived" and not subject to the
protections of exemptions to the FOI
Act.
Prior to 1966, when the FOI
law was first enacted, agencies had great
discretion in choosing who could receive
government information. In enacting the
FOIA, Congress intended "to curb this
apparently unbridled discretion" by
"clos[ing] the 'loopholes which allow
agencies to deny legitimate information
to the public.'" GTE Sylvania, Inc.
v. Consumers Union, 445 U.S. 375,
385 (1980); EPA v. Mink, 410
U.S. 73, 79 (1973). Toward this end,
"Congress formulated a system of clearly
defined exemptions to the FOIA's
otherwise mandatory disclosure
requirements. An agency must disclose
agency records to any person under §
552(a), 'unless they may be withheld
pursuant to one of the nine enumerated
exemptions listed in § 552(b).'
Department of Justice v. Julian,
486 U.S. 1, 8 (1988).
Thus, the courts have clearly
stated that information requested under
the FOIA must be disclosed to all,
regardless of who requests them. If an
agency chooses to limit information, then
it must do so under the nine enumerated
FOIA exemptions, and it cannot dictate
who receives what.
Should these FERC proposals be
adopted, the CEII alternative to the FOIA
would not only diminish the citizenry's
access to government information, it
would also make information about energy
and energy transport companies, entities
that are regulated by the government,
less accessible to the public.
It is our view that the
current FOI Act with its nine exemptions
is sufficient to keep truly sensitive
information within government vaults.
FERC need not create a second tier that
circumvents the FOI Act and allows it to
hand pick who is entitled to government
information. It is FERC that will decide
who "has a need for the information." We
assert that in the normal course of
agency activity, the FOI Act requires
that information given to some should be
given to all. Information kept from the
public cannot advance the public good,
and ultimately the secrecy itself makes
the government, and the entities it
regulates less accountable.
Proposed rule 18 CFR
388.112: Exemption 4 is adequate
Exemption 4 is designed to protect
"trade secrets," such as customer lists
and secret formulae, and sensitive
internal commercial information about a
company which, if disclosed, would cause
the company substantial competitive harm.
The exemption covers "trade secrets and
commercial or financial information
obtained from a person and privileged or
confidential."
Agencies make frequent and
successful use of Exemption 4's broad
protections. The agency here even
acknowledges that it is the perception
that Exemption 4 might not be invoked
that discourages industry from providing
information, not the experience of
industry in having agencies refuse to
invoke applicable exemptions. However, we
believe FERC's energies are better
directed to educating industry on the
operation of the FOI Act, than on making
broad pronouncements that could lead to
the categorical protection of information
that may clearly not be privileged under
Exemption 4.
FERC argues that the parallel
system needs to be created outside the
FOIA structure in part because this would
make industry more forthcoming with
information released to the commission.
If industry believes information it
provides to FERC would be made publicly
available through the FOI Act, then it
will be less willing to provide
information that may be critical in
protecting the nation's infrastructure,
FERC contends.
Moreover, FERC asserts that
since it has the duty to ensure the
"effectiveness of [its own] programs,"
which include overseeing energy
industries "in the economic and
environmental interest," its mission
would suffer should companies restrict
the flow of information to the agency. If
that happened, FERC could be information
'starved' and the nation's pipeline
system more vulnerable to attack, the
agency says.
It is important to note that
FERC, like other federal agencies,
already has rules requiring business
notification. This regulation provides
companies with assurance that the
information they submit as confidential
will not be routinely disclosed. Under
existing regulations pursuant to
Executive Order 12,600, a FOI Act request
for information submitted by businesses
enjoys great protection, particularly
while the government notifies businesses
that information they provided is
requested and gives them opportunity to
object to disclosure.
The decision to provide or
deny business information under the FOI
Act can be made by the FOI officer with
comprehension of the factors that should
be considered in the decision. The
Department of Transportation gives
companies a checklist of considerations
to help make their case that information
should be withheld. These appear at 49
CFR §§512.4(b)(3):
(i) That the information
claimed to be confidential is a trade
secret, or commercial or financial
information that is privileged or
confidential. (ii) Measures taken by the
submitter of the information to ensure
that the information has not been
disclosed or otherwise made available to
any person, company, or organization
other than the submitter of the
information. (iii) Insofar as is known by
the submitter of the information, the
extent to which the information has been
disclosed, or otherwise becomes
available, to persons other than the
submitter of the information, and why
such disclosure or availability does not
compromise the confidential nature of the
information. (iv) Insofar as is known by
the submitter of the information, the
extent to which the information has
appeared publicly, regardless of whether
the submitter has authorized that
appearance or confirmed the accuracy of
the information. The submitter must
include citations to such public
appearances, and an explanation of why
such appearances do not compromise the
confidential nature of the information.
(v) Prior determinations of NHTSA or
other Federal agencies or Federal courts
relating to the confidentiality of the
submitted information, or similar
information possessed by the submitter
including class determinations under this
part. The submitter must include any
written notice or decision connected with
any such prior determination, or a
citation to any such notice or decision,
if published in the Federal Register.
(vi) Whether the submitter of the
information asserts that disclosure would
be likely to result in substantial
competitive harm, what the harmful
effects of disclosure would be, why the
effects should be viewed as substantial,
and the causal relationship between the
effects and disclosure. (vii) If
information is voluntarily submitted, why
disclosure by NHTSA would be likely to
impair NHTSA's ability to obtain similar
information in the future.
Under the current
administration's government openness
policy, if companies submitted at the
above stated information, it seems more
than likely that sensitive information
would be kept secret. Under the FOI Act
Memorandum of October 12 from U.S.
Attorney General John Ashcroft, the
Department of Justice promised to back
any government agency in denials of FOIA
requests if there was any "sound legal
basis" to do so. Read together with the
March 19 memorandum to federal agencies
from Andrew Card Jr., the White House
chief of staff, seeking protection of
"sensitive but unclassified information,"
agencies seem to have been given a
greater latitude to deny information they
consider sensitive under Exemption
4.
CEII under proposed rule 18
CFR 388.113 provides no real
definition.
FERC defines information on critical
infrastructure as information that (1)
relates to the production, generation,
transportation, transmission, or
distribution of energy, (2) could be
useful to persons in planning an attack
on critical infrastructure, (3) is exempt
from mandatory disclosure under the FOIA,
and (4) does not simply give the location
of the critical infrastructure. The term
"critical infrastructure" is defined as
"systems and assets, whether physical or
virtual, that are so vital to the United
States that the incapacity or destruction
of such systems or assets would have a
debilitating impact on the security,
national economic security, national
public health or safety, or any
combination of those matters." 18 CFR
388.113
FERC proposes to limit
precisely the kind of critical
information that the public needs in
order to hold large energy and energy
transport companies accountable. Under
the proposed rules the condition of the
Corpus Christi and Carlsbad pipelines
would probably be kept secret. As such,
it would be impossible for the media,
environmentalists or other citizens to
know of the dangers that might
exist.
Unfortunately, by defining
CEII in an ambiguous manner, FERC wants
to maintain maximum discretion in
defining what critical infrastructure is.
It would then have great discretion in
keeping large amounts of information
secret. By defining CEII in a way that
can have all major energy infrastructure
fall under the CEII rubric, FERC
maximizes the control it maintains over
information.
It also gives special
privileges on access to information to
the business community when it is clear
that other kinds of requesters may have
legitimate needs for information. Under
these proposed rules we suspect that
those needs would never be recognized by
FERC.
Conclusion
As organizations representing
journalists who cover government
activities on behalf of the public, we
urge FERC to abandon or significantly
revise these rules so that existing
freedom of information principles can
continue to govern public disclosure of
information. We firmly believe that
exemptions to the FOI Act that exist
already provide government agencies with
the authority to protect information
that, if disclosed, would cause harm. We
also believe that by transferring
decisions on access to information to an
employee charged with maintaining secrecy
rather than with effecting disclosure,
FERC will set up a system that will deny
requesters information guaranteed them by
the FOI Act.
We are grateful for the
opportunity to comment on these
proposals.
Respectfully submitted,
Rebecca Daugherty
FOI Service Center Director
Reporters Committee for Freedom of the
Press
Gil Shochat
Jack Nelson Legal Fellow
Reporters Committee for Freedom of the
Press
Dan Fagin
President
Society of Environmental
Journalists
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