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Katrina Clampdown

In the wake of Hurricane Katrina, the government tightened control on information to the public. From the Fall 2005 issue…

In the wake of Hurricane Katrina, the government tightened control on information to the public.

From the Fall 2005 issue of The News Media & The Law, page 4.

By Corinna Zarek

After the winds died down and the debris began to settle, Katrina’s waters flooded into New Orleans. And soon after, so did the questions.

Among them was what exactly was in the waist-high water that victims, rescue workers and journalists in New Orleans trudged through &#151 a question the Environmental Protection Agency seemed none too eager to answer, but that reporters such as Mark Schleifstein of The (New Orleans) Times-Picayune repeatedly asked. When the EPA failed to respond to his verbal request for specific information about the city’s flood waters, Schleifstein filed a Freedom of Information Act request, asking for expedited review for the request &#151 required by the law in matters of compelling public interest.

“I found out two weeks later that dozens of reports were made by private citizens and businesses saying there was a potential for an ammonia release ‘here’ or an oil spill at Murphy Oil or a broken pipe at Shell Oil. They had all that stuff the first day,” Schleifstein said, noting that they did not post it on the EPA Web site until 10 days later.

“Basically that information I was requesting, while not moot, is extremely stale. It certainly would have been useful for us to know what sort of material was going in there so we could tell first responders who were on the scene exactly what kinds of things were being released. But we did not have that. They’ve been very slow in getting that information up. My concern is that what we’re seeing is the EPA trying to stop the same sort of reaction from the media as what happened after 9/11 &#151 over-control of information being released. That’s my fear,” said Schleifstein, who has covered the environment for the Times-Picayune for 21 years. As of mid-October, he had not received the requested information from the EPA.

Reporters seeking access to government information have met a litany of roadblocks since the terror attacks of Sept. 11, 2001, a trend highlighted when reporters covering disasters and their wake seek information, much of it previously available online or through verbal request. The access threshold was raised in October 2001 &#151 just after the attacks &#151 based on former Attorney General John Ashcroft’s government-wide memo informing agencies that the government would defend agency withholdings under the FOI Act so long as they were within the law. Previously, under former Attorney General Janet Reno, agencies were encouraged to release information using their discretion, even if an exemption to the FOI Act applied. Following that policy shift, information gathering remains a challenge.

After Florida’s 2004 hurricanes, reporters’ attempts to follow the trail of spending by the Federal Emergency Management Association sparked a battle over information that ended with three Florida newspapers taking the government to court.

In the public interest

Shortly after four hurricanes hit Florida in 2004, three Gannett Co. newspapers in the state sought documents related to FEMA’s handling of the disasters, including how it spent nearly $5.3 billion. Amid allegations of improper FEMA spending, the media, Congress and the Department of Homeland Security, FEMA’s parent agency, investigated its expenditures and operations. Citing public interest in who received the aid and why, the papers &#151 the News-Press in Fort Myers, the Pensacola News Journal and Florida Today &#151 filed an FOI Act request in October 2004 for records that would provide answers.

“There have been a lot of questions about FEMA’s efficiency and decisions FEMA made,” said Jim Lake, the newspapers’ attorney. “I think it’s very important that the public be able to see whether its government is operating efficiently, especially when talking about the substantial amounts of money here.”

Homeland Security released some FEMA records but withheld more detailed information, including the names and addresses of aid recipients and the locations of some disaster sites, citing the “privacy” interests of the recipients. The newspapers sued for the release of the remaining information in June 2005 alleging that the agency violated the FOI Act both in its failure to make the records available and to respond under the law’s time limits.

The U.S. District Court in Fort Myers heard arguments in the case in late September, but had not ruled by late October. FEMA cited FOI Act Exemptions 2, 4, 5 and 6 in its withholding of the documents, arguing that it should be allowed to withhold certain documents whose release would violate the deliberative process privilege, release internal personnel information, release contractors’ trade secrets and result in an invasion of privacy.

The newspapers argued that the Department of Homeland Security had an inadequate factual basis to support its exemption claims, and that even if applied, the exemptions are not applicable in their case. In making their case, the newspapers cited a 1996 case in which The Washington Post successfully sued under the FOI Act for U.S. Department of Agriculture records on recipients and amounts of government subsidy payments to cotton growers. In that case, the U.S. District Court in Washington, D.C., ordered the records released, holding that their release did not violate the subsidy recipients’ privacy interests.

But for all the FOI battles fought in court, many requests are for timely information that, like Schleifstein’s, either become moot or stale if not quickly released. And many battles over information do not end up in the courts. “The way FOIA works is that a lot of times a request is made and denied and that’s the end of it,” Lake said.

And even if FEMA will eventually have to give up its spending records on the 2004 Florida hurricanes, unless parties interested in tracing spending in other situations actively pursue the release of that information, the public may never see where its tax dollars go. “FEMA well may be doing this to other folks, but I don’t know,” Lake said. “I would guess that FEMA has similar records for Katrina.”

Following the money

Already, Congress has approved $62 billion for cleaning up after Katrina. With the breakdown in communication at the different levels of government during the catastrophe and immediately afterward, it is no wonder that the public wants to know who will control the purse strings on this payout &#151 the largest in U.S. history.

“I’m sympathetic to the fact that you have to act quickly in a time of emergency,” said Danielle Brian, executive director for the Project on Government Oversight, but, she added, there needs to be accountability on where the money goes. “The government generally has a failing grade, pre-Katrina,” Brian said, citing a report by OpenTheGovernment.org, a group that advocates transparency in government activity and prepares an annual “Secrecy Report Card” tracking government openness.

After Sept. 11, 2001, the Small Business Administration was allotted more than $5 billion to disburse in loans to businesses claiming lost revenue as a result of the terror attacks. Recent reports by The Associated Press show that among the recipients of funds intended for persons whose businesses were victimized were a South Dakota country music radio station, a Virgin Islands perfume shop and a Utah specialty dog boutique.

The government also funded the Supplementary Terrorism Activity Relief fund which gave banks the authority to grant low-risk loans. The same AP investigation revealed banks that said the government encouraged them to be “liberal” with their loan grants, resulting in hundreds of unaffected businesses receiving loans out of the funds earmarked for Sept. 11-related loans. Many of the recipients were unaware that their loans came from those funds, expressing regret that their businesses received funds when victimized businesses went without.

Following hurricanes Katrina and Rita, FEMA has already awarded hundreds of no-bid contracts to move projects forward, raising concern in Congress as well as by government watchdog groups. Sens. Susan Collins (R-Maine) and Joe Lieberman (D-Conn.) have introduced legislation to require a special inspector general to monitor spending of funds on the rebuilding efforts, a position that would be similar to the inspector general of spending in Iraq. The measure, S. 1738, has been placed on the Senate calendar for a vote this session.

“The fact that Congress is interested in oversight is exciting,” Brian said, adding that she especially expects to see kinks in the awarding of government contracts. “There are likely to be improprieties in the short-term, but I think Congress is working on the problems.” POGO does not traditionally monitor FEMA, according to Brian, but she said it is important to keep an eye on the agency. “FEMA has such poor leadership. There are political appointees creeping down and contracting out even policy decisions, and that’s where there is a failure in leadership of the agency.”

If FEMA’s history in disaster situations is any indicator, a watchful eye cannot hurt. Despite the government’s initial refusal to release certain records on FEMA spending to the Florida newspapers, government investigations into FEMA’s disbursements following those storms showed the agency footing the bill for more than 300 funerals in Florida, despite hurricane-related death tolls of only 125; duplicate aid payments totaling $22 million to 5,150 recipients; and disbursements of $31 million to residents of Miami-Dade County, a traditionally wealthy part of the state that saw relatively little damage since the closest storm hit more than100 miles away.

The FEMA attorney working on the Florida newspapers case, Kristen Shedd, has recognized in press reports the current public interest in the agency. Neither Shedd nor FEMA would discuss how the agency will handle information in Katrina’s aftermath. FEMA will be responsible for doling out the majority of the $62 billion in Hurricane Katrina relief funds.

Information on the whereabouts of Katrina evacuees also is being controlled by FEMA, which has declined Texas officials’ request for access to its database of evacuees. FEMA is also prohibiting shelter workers from discussing evacuees &#151 even with family members &#151 unless the evacuees had provided signed releases allowing it. But in the havoc surrounding Katrina’s aftermath, some evacuees’ releases have been lost, or, worse, they were never given a chance to sign them in the first place, according to news reports.

Communication breakdown

After the Sept. 11 attacks, rescue workers spent weeks sifting through wreckage and cleaning up debris at Ground Zero. Most wore flimsy paper masks, subjecting their lungs to then unknown chemical dangers &#151 now known to include benzene from burning jet fuel, asbestos and dioxin &#151 that would lead to respiratory problems and stress-related illness in more than half of the 11,000-plus rescue workers, a Mount Sinai Medical Center study later found. But in the days immediately following the attacks, the EPA’s then-administrator, Christine Todd Whitman, announced that the air in lower Manhattan was safe to breathe &#151 a statement underscored by then-Mayor Rudolph Giuliani &#151 when in fact the EPA had insufficient evidence to back that up.

It follows that some of the first questions in the Katrina aftermath were related to the safety of the conditions at the most devastated sites. What does not follow is why, after experiencing the breakdown in communication following Sept. 11 and its perhaps unnecessary health consequences, the EPA did not immediately release all it could to avoid similar potential hazards &#151 a point Schleifstein raised regarding his newsgathering efforts.

“I understand only too well the problems that the EPA had in gathering information in its first few days of being on the ground. All of their inspectors who were trying to go places to find out what was going on were pressed into duties saving people &#151 I have nothing but respect for those decisions,” Schleifstein said. “However, they did have information that was provided to them. My concern is more about the initial reports that might have guided people to figure out what the heck was going on there a bit better. All during that time was when we had people sheltering at the Superdome, rescue workers going around in boats and emergency responders &#151 all who might have been exposed to things. We don’t know.”

As a seasoned environmental reporter, Schleifstein was at the forefront of examining the potential danger New Orleans faced in the wake of a storm such as Katrina. He’d even predicted the leak of dangerous chemicals and septic leaks in his 2002 series “Washing Away.”

In his FOI Act request, Schleifstein specifically asked the EPA for “reports of spills, releases, accidents, fires, flooding . . . or any other communications concerning EPA’s response to Hurricane Katrina,” noting that he considered it an ongoing request. Although the EPA eventually sent a form letter acknowledging receipt of his request, he has yet to receive an actual reply. And extra time for following up on his FOI requests is hard to come by since he now covers the levees rather than the disaster and recovery efforts.

Shift toward secrecy

This reluctance to release information &#151 some of it arguably critical to human life &#151 is illustrative of the government’s overall trend toward secrecy following the Sept. 11 terrorist attacks.

Citing privacy and national security concerns, the government discloses less to the public, raising questions of government accountability not only in times of disaster, but in their aftermath. Where exemptions to the FOI Act were once intended to be used sparingly with a strong presumption of government openness, they are now strongly defended unless they violate the law.

“There has been an overall shift toward secrecy as a result of 9/11 that is misguided,” Schleifstein said. “The reality is that a lot of information that is needed by the public for making decisions in everyday lives is much more difficult to obtain as a result of 9/11. It’s becoming more problematic.”

But despite the shift, the fact that the public has started to take notice and speak up could potentially turn the tide, Brian said. “Because of the outcry, we’re starting to see slightly more transparency,” she said. Her Washington-based oversight group continues to press the government for transparency in its spending on the hurricane disaster. “The only silver lining to Katrina is that it’s made people realize we don’t know what’s going on in government, ” she said.