Federal Commission Changing Access Rules to Avoid FOIA Guidelines

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FEATURES

FOI REPORT

A regulatory battle with huge implications for federal freedom of information is playing out in Washington, D.C., and - but for the energy trade press - no one is paying much attention. This bodes poorly for the Freedom of Information Act, as many access battles swirling around homeland security will take place not on the floor of Congress, but in dimly lit administrative proceedings where the mainstream press rarely treads.

In September, the Federal Energy Regulatory Commission unveiled a notice of proposed rulemaking restricting access to "critical energy infrastructure information" (CEII). In what would be the first such permanent action by a government agency, the commission said it makes little sense to continue handling document requests on pipelines, electric transmission networks and power plants through the FOIA. But rather than turn to Congress for a legislative solution, it unilaterally changed the rules to suit itself.

The new FERC rule departs from previous access policy in two significant ways. No. 1: it drops limits imposed on access to maps and other information revealing the location and routing of energy facilities, but extends other information restrictions still applicable to existing energy facilities to proposed facilities as well. No. 2: it designates a "CEII coordinator" to make decisions on information requests pursued outside the FOIA.

Tiered access

The proposal marks the first public manifestation of the post-Sept. 11 inquiries into what should and should not be available after the terrorist attacks. In effect, FERC has moved to a tiered system of public access. While anyone can request anything under the FOIA, the commission would withhold certain previously public information that it says is exempt from mandatory disclosure and would only make such information available to requesters who are deemed to have a "legitimate need" for it.

FERC stressed that the new category of selectively available information would consist only of information already exempt from disclosure under the FOIA, but the trend toward tiered access is hard to miss.

FERC argued that the act is not well-suited for requests about sensitive documents, because under FOIA the commission is not permitted to restrict what parties do with documents after they're released. The new guidelines allow FERC staff to limit what happens to energy project information after it is made available. For example, the commission could now demand a nondisclosure agreement to be signed by landowners, environmentalists or other likely recipients that would restrict how information is handled or shared following its release.

Cut through the regulatory language, and you have rules that essentially clear the way for the commission to override FOIA for certain document requests on pipelines, power plants and electric transmission networks.

The rules indicate that FERC now imposes access restrictions "to those who have a legitimate need for the information," and it intends to place the recipients "under an obligation to protect the information from disclosure. …