Terrorism Fears Thwart Journalists' Reporting: Is the Public Being Well-Served by the Government's Protection of Information?
Davis, Joseph A., Nieman Reports
A new federal rule aimed at keeping terrorists from learning about vulnerabilities in the nation's energy infrastructure might he resulting in the neglected safety of dams and pipelines and in less monitoring of an electric grid whose operators are unaccountable for its reliability--all of which will spare powerful, politically appointed regulators embarrassment. The reason: This rule--prompted by worries about homeland security--blocks journalists from reporting certain information about pipelines, transmission lines, hydroelectric dams, and other energy facilities. Whether this protection of information is resulting in the public being safer remains an open question and a difficult one to assess with reporters unable to obtain critical information.
FERC's New Rule
The Federal Energy Regulatory Commission (FERC) has jurisdiction over dams and hydropower, oil and gas pipelines, electric power plants and the grid connecting them, and many other aspects of the nation's energy infrastructure. For years it had issued licenses and enforced regulations in formal, quasi-judicial proceedings. As part of these proceedings, documents were filed in a public docket, and everything was supposed to be on the record.
Within a month after the September 11th attacks, FERC started to remove previously public information from its Web site. By January 2002, it began regulatory proceedings to excise entirely from the public record a whole class of information it called "Critical Energy Infrastructure Information" (CEII). On February 20, 2003, the CEII rule was finalized, and it defined CEII as information about "proposed or existing" critical energy infrastructure that "could be useful to a person in planning an attack on critical infrastructure." In response to protests from open-government groups, FERC amended its definition to include only information already "exempt from mandatory disclosure under the Freedom of Information Act (FOIA)" and that "does not simply give the location of the critical infrastructure."
But FERC's limitation to FOIA-exempt information might provide little consolation to journalists. By using an expansive FOIA interpretation, FERC exempted a great deal of the safety and environmental information it had previously disclosed having to do with internal personnel matters, trade secrets, and "certain law enforcement information, including information the disclosure of which might jeopardize a person's life or safety." So far, these interpretations are untested in court.
The final rule also allowed companies and utilities to claim protection for disclosure of information when they initially submit it to FERC. Such information would then remain undisclosed unless FERC's CEII coordinator decides otherwise. The rule applies not merely to information about existing facilities, but to proposed facilities that might be built if FERC licenses them.
FERC's system departs from FOIA in several important ways. First, it allows companies to shift the presumption to nondisclosure. Second, it requires that anyone requesting information prove their identity and "need to know." Third, people receiving CEII must sign nondisclosure agreements--a provision that reporters would balk at.
Milltown Dam: In December 2002 FERC removed from its Web site information on foot-wide gaps near the foundation of the aging Milltown Dam, five miles upstream of Missoula, Montana. The headline on The Associated Press story on December 28th said it all: "FERC Hides Dam Safety Flaws, Citing 'National Security.'"
Terrorists have shown little interest in Milltown Dam. But the Milltown Reservoir holds 6.6 million cubic yards of sediment laced with lead, arsenic, cadmium and other heavy metals washed from the Anaconda Smelter Superfund hazardous waste site (the "nation's largest") now owned by ARCO, who will have to pay for the cleanup. Arguably, hiding the flaws does more to help ARCO than it does to thwart terrorists. …