www.ire.org Search IRE  Member sign-in History How we started, Bylaws, The Arizona Project, Endowment Membership Benefits, How to Join, Find an Investigative Journalist, Listservs, Update Your Address Training Conferences, Seminars, Fellowships, Training Materials Resource Center 20,000-plus investigative stories, 2,000 Tipsheets, Reporting Guides, Beat Sources Broadcast Center Videostreamed clips, IRE feeds, IRE videos Database Library Government database collection, Data analysis Campaign Finance Information Center Campaign Finance Database, Stories FOI Center Columns, Awards, FOIA Database, Tipsheets The IRE Store Books, Audio tapes, Databases, Periodicals, IRE Logo Goods Job Center Hot jobs in journalism, latest fellowships and grants IRE Awards Latest contest, Past winners, How to enter Educators IRE Journalism Educators' Center IRE Board Elected members, Committees IRE Staff Staff members, Contacting us Privacy Policy

---

FOI Columns
Return to The FOI Center


January-February 2003

Federal commission changing access rules to avoid FOIA guidelines
by Charles Davis

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 rule making 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 informati n 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." In other words, FERC decides who gets it and what they do with it.

A brief history lesson: the federal FOIA was enacted, in large part, to repudiate the widely hated Administrative Procedures Act of 1946, a deferential piece of legislation that gave agencies broad discretion in deciding what information to disclose, including the ability to make information available on a preferential basis. The FOIA was enacted to limit agency discretion regarding disclosure and to close the loopholes used to deny legitimate information to the public.

Potential spread
This sneaky maneuver by FERC will be repeated by other agencies, largely because it works by camouflaging the fact that FOIA states clearly all federal agencies have but a single tool for determining which information should be protected: FOIA 's nine exemptions.

Only one exemption pertains to critical energy infrastructure information - Exemption 4,which allows federal agencies to withhold "trade secrets and commercial or financial information obtained from a person and privileged or confidential."

It is worth noting, though, that nothing in the exemption would permit the agency to withhold information that the submitter already discloses to the public or makes available to competitors.

The other great sleight of hand here is FERC 's straight-faced contention that it will evenhandedly determine who merits access by divining those with a "legitimate " need for information. In other words, government officials purport to make value-neutral distinctions between requesters while accommodating the public 's very strong interest in knowing what its government knows.

It's not clear how FERC's regulations will affect the FOIA process on Capitol Hill, where Senate and House lawmakers will have to reconcile competing critical infrastructure exemptions in a conference committee on homeland security. In July, the Senate Governmental Affairs Committee reached a bipartisan compromise that creates a new exemption allowing for the transfer of sensitive materials to a new homeland security agency, while the House bill,H.R.5005, includes a radical approach allowing for critical infrastructure materials "voluntarily submitted " to the government by individuals or businesses to be exempt from FOIA.

The bureaucrats who prefer secrecy like to make policy in a vacuum, where few are paying attention.

They 're getting their wish so far in the post-Sept.11 rush to protect critical infrastructure, as newsrooms seem fixated on Congress while FERC simply makes its own rules.


Charles Davis is executive director of the Freedom of Information Center, an associate professor at the Missouri School of Journalism and a member of IRE 's First Amendment task force.