Comments on Critical Energy Infrastructure Information rules
The Reporters Committee objected to FERC's proposals to limit public access to such information.
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BEFORE THE
COMMENTS OF The Reporters Committee for Freedom of the Press submits these views to the Federal Energy Regulatory Commission in response to the January 23, 2002, invitation for comments. Our remarks concern its consideration of rules revisions regarding public access to Critical Energy Infrastructure Information (CEII) to 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. We are very concerned that the Commission would consider removing information information it labels as CEII from processing under the Freedom of Information Act and we oppose the changes suggested here. The FOI Act should not be expendable in times of crisis We are mindful that the tragic events of September 11, 2002, aroused the desire of federal officials to batten down the hatches and take whatever measures possible to protect the nation, and we sympathize and empathize with that desire. However, President George W. Bush and his administration's spokespersons have on numerous occasions urged the citizens of this country to combat the forces of evil unleashed by these terrorist acts by getting "back to the business of America." We believe that he intends citizens of this country to continue to exercise the important rights and privileges we enjoy in our system of government, rather than to abandon them and simply live with their loss in a diminished democracy. The Freedom of Information Act is not a summer soldier. It is an active combatant all the time in preserving democracy as we know it. It entitles the public to know what the government is up to. It allows the public to be as fully informed as is possible so that it can be an informed participant in its government. In a war on terrorism we do not need to decommission the Freedom of Information Act. In our thinking, business as usual in this Democracy means government's continued operation with a fully functional Freedom of Information Act. That is the basis for most of our further remarks in response to FERC's questions. III. Implementation of Policy Statement We would like to point out an error in this section regarding the treatment of FOI requests. The commentary states that "Most of these requests are pending, as the time for responding is still running or has been tolled [emphasis added] because the Commission sent letters to the submitters of the information for their views. " We note that the 1987 executive order authorizing business notification of submitters clearly states that the notification will occur "to the extent provided by law," a phrase that was added by President Ronald Reagan after it was pointed out that the FOI Act's time limits could not be affected by executive order. The time limits of the FOI Act are not affected by business notification procedures. IV. Questions for Response A. Is there legal authority to protect CEII? FERC's discussion of this question addresses issues of "balance" as might exist between the public's interest in pipeline location and the public and media interest in accessing information on how the Commission operates with "legitimate concerns about the integrity of the nation's infrastructure." We would suggest that the FOI Act simply does not provide for balancing these interests. The 1974 amendments to the FOI Act made clear that information must be disclosed unless it falls within nine exemptions. 1. Are there statutory impediments to protecting CEII? The commentary here intimates that the Commission's enabling statutes "do not appear to prohibit" FERC from "devising procedures to control public access." We point out that enabling statutes do not disable the FOI Act unless they do so in specific ways as required under the FOI Act's Exemption 3. Because our expertise lies in First Amendment and freedom of information issues rather than in more technical areas, we will not comment on the operation of specific enumerated laws and policies other than to point out that there are delineated standards for invoking Exemption 3 to protect information. Congress set these standards in 1976 to address problems of too liberal an interpretation of other laws requiring confidentiality. The FOI Act now requires that a law requiring confidentiality must either address matters to be "withheld from the public in such a manner as to leave no discretion on the issue" or establish "particular criteria for withholding" or refer "to particular types of matters to be withheld." It is highly unlikely that statutes which are not currently considered to require confidentiality under Exemption 3 would do so under new interpretation. B. Definition of CEII This section discusses the removal of information from Web sites, or "ready public access" and the conceivable need to identify more information that should be removed. We challenge the underlying presumption here that some information is more susceptible to terrorist use if it is easily available than if a requester must go through the more tortuous process of getting the information through an FOI request. 1. What are the primary considerations the Commission should use in protecting information? In the immediate aftermath of September 11, many agencies took Web sites down to determine if information there would make resources particularly vulnerable to terrorists. With passage of time, much of that information is now being returned. There was nothing about the events of September 11 to suggest that terrorists had developed any particular knowledge from the Internet that helped them plan their attacks. They certainly needed no map to the World Trade Center. And while it is possible to imagine enumerable hypothetical scenarios as to what terrorists might do to disable the infrastructure, there should be limits as to how persuasive these should be in making information less freely available to the public. The Commission should continue to make information available electronically as the Electronic Freedom of Information Act of 1996 requires. 2. Should CEII include all information related to location of existing facilities? What if information is otherwise commercially available? Information on the location of facilities is important to the general public, whatever its use to terrorists. If the law allows information to be made inaccessible to the public, only information that is clearly unique in pinpointing vulnerabilities should be removed from government Web sites. 3. Aside from location what additional types of information may warrant protection? i. Vulnerability/risk assessments and the information that may provide insights in vulnerabilities in the infrastructure? The public has a special interest in knowing about the existence of vulnerabilities and the assessment of risks, and any information of this type that hypothetically would be useful to terrorists would seem to us to be especially important to the public, which should demand that risks be eliminated and vulnerabilities dissolved. It is our belief that more eyes on a problem will ultimately help eliminate that problem, possibly through demands by members of the public and possibly by the emergence of new ideas for solving those problems. C. Requester's status and need for the information (11) media The Freedom of Information Act exists to provide the public information and the news media's interests are one with the public's. Furthermore, the Reporters Committee has observed some agency efforts to require news media to prove their credentials by describing uses they will make of particular content, a practice which we believe thwarts the First Amendment rights of the press and also adds considerably to bureaucratic encumbrances on making information available. Any distinction between media and other requesters potentially raises these problems. D. Verification and Access Issues The scenarios proposed in this section exemplify how much access to information can be encumbered when agencies demand credentials and authorization as a condition for making information available. 4. If the Commission eliminated all Internet access to CEII, would that be sufficient protection? We believe that public information should be available on the Internet, and that the Electronic FOI Act of 1996 guarantees that much of it will be. If an agency exempts information from disclosure under a recognized exemption to the FOI Act, then it is properly withheld from the agency's Web site. If the information is not exempt and is not easily available, then it may only be useful to persons who perceive a great need to access it. In the realm of hypothetical situations, we believe that persons who seek information for nefarious purposes might well be insistent in pursuing it, while more benign users will find the same information inaccessible. F. Applicability of FOIA Exemptions The Commission suggests here that there may be persons that it determines have a "legitimate" need for information. We cannot imagine that the government will be able to make these distinctions routinely and still accommodate the public's very strong interest in knowing what its government knows. We strongly object, as we have in the past, to FERC's contention, noted in footnote 13, that "Records that fall under an exclusion are not considered subject to FOIA, enabling an agency to state that there are no documents responsive to the FOIA request." There is a very, very strong distinction in stating to a requester that records fall under one of the exclusions to FOIA added by the 1986 FOI Improvements Act and deliberately lying as to whether those records exist. The FOI Improvements Act did not provide government agencies any license to lie about records they hold.
We greatly appreciate the Commission's consideration of these comments.
Lucy Dalglish, Executive Director March 11, 2002
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