Member Pipeline - Legal - February 2002 Legal Perspectives
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February 2002 |
"When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis . . ."
October 12, 2001 Memorandum from U.S. Attorney General John Ashcroft to Federal AgenciesThe September 11, 2001 terrorist attacks have caused public officials at all levels of government - including publicly owned treatment works (POTW) managers - to reflect on the type of information they now should provide to the public in response to federal Freedom of Information Act (FOIA) or state public records requests. Before the attacks, a request for information regarding POTW collection systems or treatment plants might not have raised eyebrows. These requests today are extensively scrutinized, given the POTW community's constant state of alert and heightened sense of duty toward the public, their personnel, and our national infrastructure assets.
This new climate of "information caution" runs somewhat counter to our country's long-established support for the public's right to obtain information held by the government. This issue of Legal Perspectives discusses federal and state open records laws and new FOIA policy, notes how current FOIA law protects critical infrastructure assessments, shows how this federal precedent can help protect POTW vulnerability assessments, reviews Internet posting issues, and finally, comments on federal and state legislative activity in the security arena.
Federal and State Freedom of Information & Open Records Laws
Our national commitment to the public's right to information was most resoundingly affirmed when Congress enacted FOIA in 1966, giving the public broad access to unclassified information held by the federal government. 5 U.S.C. § 552. There are nine standard FOIA exemptions and three exclusions that allow federal agencies to withhold information. The exemptions are for (1) classified national defense and foreign relations information; (2) internal agency rules and practices; (3) information prohibited from disclosure by federal law; (4) trade secrets and confidential business information; (5) inter- or intra-agency communications protected by legal privilege; (6) matters of personal privacy; (7) certain law enforcement information; (8) information on the supervision of financial institutions; and (9) geological information on wells. The three exclusions, which are rarely used, pertain to especially sensitive law enforcement and national security issues.As our country moved into the information age in the 1990s, Congress passed the 1996 Electronic Freedom of Information Act (E-FOIA). E-FOIA requires, among other things, that frequently requested records be made publicly available on the Internet.
Nearly every state has an open records or public access to information law, many of which are more liberal than FOIA or E-FOIA. POTWs are accustomed to operating under such laws. For example, POTW managers regularly make information about their plants, operations, conveyance systems, permits, contracts, bidding, and even management or Board meetings accessible to the public in paper or via the Internet.
New Federal FOIA Policy
The federal government recently clarified that national security concerns have changed the FOIA baseline. On October 12, 2001 Attorney General John Ashcroft announced a new Department of Justice (DOJ) FOIA policy. The policy allows federal officials to withhold information under FOIA on any "sound legal basis." This legal standard gives federal officials greater ability to deny FOIA requests than they had under a prior 1993 Clinton policy, which allowed FOIA withholding only to prevent "forseeable harm." Where federal agencies legitimately turn down FOIA requests, the new policy assures them that DOJ will defend their decisions. The FOIA policy is available at www.usdoj.gov/04foia/011012.htm.The DOJ policy shows that the highest levels of our government acknowledge that September 11 significantly affected the handling of FOIA requests. While addressed to federal agency heads, the DOJ FOIA policy sends strong guidance to all public officials - including POTW managers and their lawyers - on how to handle public requests for information in today's more threatening times. Although POTWs are governed primarily by their own state's open records laws, which may favor broader disclosure than FOIA, DOJ's policy may help POTWs encourage their state legislatures to enact, if needed, increased protections for security related POTW information.
FOIA's Protection of Critical Infrastructure Assessments
Federal agencies have undertaken vulnerability assessments of critical infrastructure for years. DOJ has long asserted that such assessments are protected from disclosure under FOIA Exemption 2. See 10/15/01DOJ FOIA Post (FOIA Post), www.usdoj.gov/oip/foiapost/2001foiapost19.htm. Although the language of Exemption 2 refers to records "related solely to the internal personnel rules and practices of an agency," courts have found that the Exemption extends to those "predominantly internal" agency records where disclosure "significantly risks circumvention of agency regulations or statutes." Crooker v. BATF, 670 F.2d 1051, 1053 (D.C. Cir. 1981) (en banc). A 1989 DOJ FOIA Update notes that this "circumvention provision" is "well suited for application to the sensitive information contained in vulnerability assessments." Courts also extend Exemption 2 protection where the agency's information is effective only when kept confidential or where disclosure would render the information useless. See Kaganove v. EPA, 856 F.2d 884, 889 (7th Cir. 1988), cert. denied, 109 S. Ct. 798 (1989); NTEU v. Customs Service, 802 F.2d 525, 530-31 (D.C. Cir. 1986); see also link in FOIA Post to FOIA Update, Vol. X. No. 3. DOJ urges federal agencies to "avail themselves of the full measure of Exemption 2's protection for their critical infrastructure information as they continue to gather more of it, and assess its heightened sensitivity, in the wake of the September 11 terrorist attacks." See FOIA Post.Applicability of DOJ Policy to AMSA's Vulnerability Assessment Tools
The DOJ guidance and extensive body of case law protecting the disclosure of vulnerability assessments provide helpful precedent to POTWs that soon may decide to undertake post-September 11 vulnerability analyses, especially where the state's open records law mirrors, or is based on, FOIA. AMSA is providing POTWs with tools to conduct vulnerability assessments under a grant from the U.S. Environmental Protection Agency (EPA). The first phase of this project was AMSA's release in February 2002 of an Asset Based Vulnerability Checklist for Wastewater Utilities. AMSA now is proceeding to complete a companion Vulnerability Self-Assessment Software Tool (VSAT) for POTWs by this summer. AMSA's Legal Issues in a Time of Crisis Checklist, also released in February, provides POTWs with a comprehensive overview of legal issues to be considered as POTWs evaluate whether and how they will conduct vulnerability assessments, and how they will manage the information generated and decisions made in the VSAT process. POTWS can obtain these documents from AMSA's web site at http://www.amsa-cleanwater.org/pubs/publist.cfm.In addition to the precedent POTWs can find in federal FOIA law to protect vulnerability assessments, many state open records laws contain exemptions from disclosure if the information would cause substantial harm to the public, life, or safety. If a POTW believes, however, that the state open records law would require disclosure of sensitive information, DOJ's statements on the unique nature of vulnerability assessments can help POTWs advance possible changes in state policy or law. In addition, several techniques outlined in AMSA's Legal Issues Checklist - such as the use of legal privilege doctrines - may help protect POTW security information from disclosure. Further, when in doubt, POTWs should consider marking items relating to vulnerability assessments "confidential," as suggested by Steve Chabinsky, Principal Legal Advisor to the Federal Bureau of Investigation's National Infrastructure Protection Center during AMSA's Winter Conference.
Internet Information Post-September 11
Also worthy of review in the wake of the terrorist attacks is the type of information publicly available via the Internet. In recent months, more than 15 federal agencies, including those that regulate or inform POTWs such as EPA and the U.S. Geological Survey, have removed sensitive information from the Internet and deleted entire web sites. The Government Printing Office recently directed all libraries to destroy a CD-ROM of U.S. reservoir and dam information. "The tragic events of September 11 have compelled us to carefully review all of the information we make available over the Internet in a new light," testified Elaine Stanley, Director of EPA's Office of Environmental Information, in November before the House Subcommittee on Water Resources and Environment.State and local agencies are following the federal government's lead and assessing their Internet-posted information. California, for example, has removed Internet information on dams and aqueducts. In January 2002, New York security officials, noting the "disconcerting amount of potentially compromising information still publicly accessible," instructed state agency heads to exempt from public disclosure, and remove from the state web site, a variety of information, including material relating to water infrastructure, security audits, and physical asset inventories.
POTWs may want to ascertain whether their state officials have issued similar directives. They also may consider reviewing the sensitivity and nature of information available on POTW and other web sites.
Federal & State Records Legislation
The extensive concern regarding public access to sensitive information has prompted more than 30 bills in the U.S. Congress to redefine the types of information the government must release under FOIA. Several bills focus on the protection of critical infrastructure assets including wastewater treatment plants and collection systems. One AMSA-supported bill, S. 1456, introduced by Senator Robert Bennett (R-UT), would prevent disclosure of critical infrastructure information voluntarily shared with a federal agency for "analysis, warning, interdependency study, recovery, reconstitution, or other informational purpose." If made law, the Bennett bill would allow POTWs to share vulnerability assessments with EPA and other federal agencies without concern that the information would become public under FOIA.State legislatures are seeing a similar influx of bills to modify their public records laws. A Virginia bill would allow public officials to withhold information that could aid terrorists, such as building architectural plans. In Maryland, a bill would allow public officials to deny requests for records where the release would "constitute a risk to the public or public safety." Florida cities are pursuing public records exemptions in the legislature for building plans for publicly owned facilities, maps of water, sewer, or reclaimed water lines, and the emergency operations plans of local governments.
Again, POTWs may want to evaluate any such bills introduced in their state legislatures to determine whether they encompass and adequately protect water and wastewater security interests.
The Future of Information Disclosure
The "scales of justice" symbol represents the balance that laws are meant to achieve between the various interests and rights on any particular issue. In the case of FOIA and open records, the balance to be achieved lies between continued support for our nation's core belief in the public's access to governmental information, and our need to ensure our homeland's security. Protecting information relating to the security and vulnerabilities of vital infrastructure assets like water and wastewater systems is a part of the balancing act. It is clear that federal and state law will change to reflect the continuing movement and pressures in this arena. POTW officials and their lawyers have a valuable role to play in these deliberations - by ensuring that the voices and needs of the wastewater treatment community are heard.© 2002 Association of Metropolitan Sewerage Agencies
Legal Perspectives is a monthly publication of the Association of Metropolitan Sewerage Agencies (AMSA).
Founded in 1970, AMSA represents the interests of over 270 of the nation's POTWs. AMSA members serve the majority of the sewered population in the United States and collectively treat and reclaim over 18 billion gallons of wastewater everyday.
We welcome your comments or questions on Legal Perspectives. Please contact Alexandra Dapolito Dunn, General Counsel, AMSA at adunn@amsa-cleanwater.org or 202/533-1803.