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Federal agency pushes for prepublication review

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  1. Prior Restraint

    News Media Update         WASHINGTON, D.C.         Prior Restraints    

Federal agency pushes for prepublication review

  • A Federal Energy Regulatory Commission policy requiring reporters using certain information about the nation’s energy infrastructure to submit articles for agency review before publication has been modified.

Sep. 24, 2004 — The Federal Energy Regulatory Commission is encouraging reporters writing about the nation’s energy infrastructure to have their work vetted by its officials before publication, a change from a previous policy requiring reporters to submit their work before publication.

The change came after reporters requesting Critical Energy Infrastructure Information refused to sign a non-disclosure agreement requiring them to submit their articles before publication, said Bryan Lee, a former reporter who this month became acting director of FERC’s press office.

CEII includes information relating to the production, generation, transportation, transmission or distribution of energy beyond the location of the facility that could be useful to an individual planning an attack, and is exempt from mandatory disclosure under the Freedom of Information Act, the Dow Jones News Service reported.

“After 9/11, there was an executive order from the White House that all CEII be taken off Web sites so not to give terrorists information they can use to attack,” Lee said. “The problem for FERC is that we have procedures that the public has the right to know information about such as the certification of a pipeline route or the authorization of liquid natural gas import terminal.”

In order to make material that is not exempt under the FOI Act available to the public but not to terrorists, the commission wrote rules for providing information to the public through a “non-disclosure agreement,” Lee said.”[The agreement] states that this is CEII and you can use it to inform yourself but you cannot pass it on to anyone and you must destroy it when you are done.”

Everyone from homeowners to journalists requesting CEII are required to sign the agreement, which allows journalists to look at maps, documents and other information for general background reporting.

The rules also required reporters to run stories by FERC before publication.

“The staff didn’t have understanding of how onorous the provision would be to a member of the press,” Lee said. “As soon as I learned of the provision, I began lobbying to change it. When I became acting director, I made sure it was changed.”

FERC is the only federal agency to have written disclosure rules for CEII, Lee said.

“Most agencies simply took the information off of their Web sites and out of public libraries,” he said. “This is not a process designed to hide information from the public. It’s designed to make information available but to not get into the hands of groups trying to kill our citizens.”


Editor’s note: After publication of this article, FERC’s Bryan Lee said he would like to clarify that the change was not made in response to reporters’ refusal to sign a non-disclosure agreement requiring them to submit their articles before publication. In addition, the critical infrastructure information that is the subject of the story is covered by a FOI Act exemption, but FERC has opted to release the information under non-disclsure agreements with the public and journalists who use it only for general background, not as a direct source.

© 2004 The Reporters Committee for Freedom of the Press

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