FERC proposes need-to-know information policy

From the Fall 2002 issue of The News Media & The Law, page 42.

The Federal Energy Regulatory Commission is proposing radical changes to the way it handles Freedom of Information Act requests.

FERC regulates the interstate transmission of oil, natural gas and electricity as well as the construction of natural gas pipeline facilities. Under the proposed changes, FERC would 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 proposals would not allow FERC to actually withhold information that is not exempt under the FOI Act, but would allow it to choose to release information that is technically exempt to some but not all persons or groups who might want it.

FERC asserts in its proposed rules that, in light of the September 11 attacks, it has the right to curtail the type and quantity of information that it releases under the FOI Act. It wants to create a parallel information distribution system, deciding who receives what information on a “need-to-know” basis. It wants to choose which requesters receive information, based on how the agency determines their need for it. Requesters it determines “need to know” information would be required to sign non-disclosure agreements limiting their ability to share the information.

FERC claims these changes are necessary to “protect the well being of American citizens from attacks on our nation’s energy infrastructure.”

News media and various government watchdog groups oppose the proposal. The Reporters Committee for Freedom of the Press, The Society of Environmental Journalists, Public Citizen and OMB Watch are all writing comments opposing the changes.

“What FERC is trying to do is totally unacceptable. The FOIA is one of the most crucial acts that has helped strengthen America’s democracy,” said Tyson Slocum, research director for Public Citizen’s Critical Mass Energy and Environment Program. “We have a long strong history in this country of active citizen participation and FERC is trying to shut that down.”

“It is unacceptable for FERC to ask citizens to sign a gag order which would limit them from sharing information with the public,” Slocum added.

“It’s all smoke and mirrors,” said Sean Moulton, of OMB Watch, a Washington-based government watchdog group. “FERC is trying to justify what it has been trying to do since day one, even before 9-11, which is to restrict a tremendous amount of information from the public.”

Several groups say that the FOI Act is sufficient for withholding sensitive information from terrorists. Under Exemption 2 of the act, for example, FERC has the right to avoid disclosure of “sensitive information contained in vulnerability assessments.” This would allow FERC to avoid public disclosure of documents relating to internal weaknesses that the so-called critical energy infrastructure may contain.

“FERC is jumping the gun by changing the rules on FOIA,” Moulton said. It should be “doing this through Congress.”

Access to such “sensitive information” has revealed serious problems in energy systems. Media organizations have used freedom of information laws to expose defects in pipelines and pipeline management.

Records obtained by the Austin American-Statesman after a 1994 pipeline explosion near Corpus Christi, Texas, showed that Koch Industries Inc., 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.” It also “underestimated for nine days the amount of oil spilled — a miscalculation of some 70,000 gallons that may have hindered cleanup efforts,” according to a 2001 report in the American-Statesman.

If FERC adopts the changes the courts will likely be the next battleground. “Public Citizen will file a suit challenging this radical move by FERC,” Slocom said. — Gil Shochat