Homeland security and the critical infrastructure

In the creation of the Department of Homeland Security, a new statute was developed that would allow the department to withhold "critical infrastructure information." The Homeland Security Act criminalizes leaks of unclassified critical infrastructure information provided to the government by businesses who, in turn, are promised secrecy and immunity from prosecution for sharing the information.

Sen. Patrick Leahy (D-Vt.) called the move "the most severe weakening of the Freedom of Information act in its 36-year history."

The actual impact of the act has yet to be seen, but if current trends hold true, it could mean that important stories won't get done. Information about security vulnerabilities journalists obtained through FOI requests has led to significant stories that have informed the public about their communities. Journalists regularly report about problems in industry that pose threats to local communities and the safety of infrastructure.

But access to information about industrial vulnerabilities and preparedness was not the only area where security butted heads with the public's right to know what's going on in their communities. Access to information about dams, nuclear power plants, pipelines and chemical plants has become much more guarded under new restrictions designed to keep our "homeland" safe.

Shortly after Sept. 11, data about dam safety was temporarily unavailable from the Army Corps of Engineers. The data has since been made available, but could be at risk under the Homeland Security Act.

In June 1995, Dateline NBC analyzed national data on dams, showing that thousands of dams were precariously close to collapse.

In November 1997, a group of University of Missouri students reported for KOMU-TV in Columbia, Mo., that, although more than 1,200 dams in Missouri should have had Emergency Action Plans in case of a break, only 33 did.

New Federal Energy Regulatory Commission guidelines protect "critical energy infrastructure information" from disclosure. FERC regulates the interstate transmission of oil, natural gas and electricity, as well as the construction of natural gas pipeline facilities. Under the changes, FERC can now limit access to information that "could be useful to persons in planning an attack on critical infrastructure" and are "exempt from mandatory disclosure under the FOI Act."

The agency's distribution system creates a parallel information distribution system based on its own determinations of "need-to-know." Requesters who the agency decides need to know information would be required to sign nondisclosure agreements limiting their ability to share the information.

Such regulations would have prevented , for example, a 1996 Time magazine story about the Nuclear Regulatory Commission's failure to enforce its own safety regulations — and the dangerous consequences that failure had caused at least one power plant.

In addition to regulations, other new laws have been passed. In June 2002, for example, Sen. Christopher "Kit" Bond (R-Mo.) introduced the "Community Protection from Chemical Terrorism Act," legislation that was designed to restrict access to chemical plant's risk management plans. Environmental reporters and citizen groups have used that information to assess the risk of chemical plants in their areas. Although the information is no longer online, it remains available in EPA reading rooms around the country.

However, when a chlorine gas cloud spewed from a railcar near Festus, Mo. — Bond's home state — reporters did not have at hand the risk management plan for the company where the spill occurred.

Sean Moulton, senior information policy analyst with OMBWatch, a federal watchdog organization, says withholding the information makes little sense, as risk management plans do not provide overly detailed information about a plant.

"It doesn't say where [the chemical supply] is stored, nor indicate what it is stored in," Moulton said.

"There is a risk when industry is not under the watchful eye of the public," he added. "When you get information, you can create pressure to get something fixed or changed."