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FOI Columns
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January-February 2004

More daunting tests ahead pitting 'right to know' against 'need to know'

by Charles Davis

A pair of recent discussions with lawmakers, policy analysts and industry experts has me deeply concerned about the balance between openness and secrecy in a society still reeling from the terrorist attacks of Sept.11, 2001.

As an invited presenter at an energy security summit sponsored by the National Conference of State Legislatures, and two days later on a teleconference with the Council of State Governments, I was asked to provide the "access perspective" regarding energy security and related homeland security issues. In a pair of freewheeling exchanges of ideas, I was reminded of the complexity of these issues, and heartened by the lawmakers' earnest attempts to balance the interests of safety and security with public access to information.

State lawmakers gathered at both meetings clearly are wrestling with these issues, and are searching for answers from all parties - hence the invitations. Determining what is - and what should not be - public information under federal and state public records laws requires a nearly impossible culling of documents, and a fair amount of predictive policymaking. Who could use what against us, and for what devious purposes?

The fundamental questions I posed led to a lively discussion: Can we assume that greater secrecy leads to greater safety? Does diminished accountability lead to increased efficiency? Historical evidence leads me to the opposite conclusion, yet history offers nothing remotely like the events of 9/11. Clearly, secrecy surrounding some information on critical infrastructure makes sense. I am not, nor have I ever been, an FOI absolutist. Arguing that all governmental information, regardless of its nature, should be released to us all would put us all at great risk. I've been shown plenty of documents that meet what I call the "Yikes!" test - records I don 't even want to know about!

Protecting public interest
Those documents represent but a tiny fragment of the FOI universe. In fact, the category of "sensitive" records is only a tad bit larger. The calculus gets much more difficult when the analysis turns to the vast majority of sensitive records, however, because these records offer benefits as well as potential costs.

Documents valuable for their ability to warn the public of looming environmental risks, of vulnerabilities in our infrastructure and of potential corruption in our emerging homeland security apparatus cannot simply exist in a closed loop of private sector-government regulatory "information sharing," I argued. Agreed, said the lawmakers, but look at how these records could be misused!

One important area of consensus emerged from at least the majority of the attendees. Any exemptions relating to such "sensitive" documents should contain a provision protecting the public interest. I prefer an ad hoc approach, given the relative rarity of these documents in the broader FOI context: the exemptions, like Michigan 's recently enacted homeland security exemption, should clearly state that the exemptions require a judge to determine whether the interest in secrecy is outweighed by the public interest in disclosure.

The more distressing reality is that while states do have a say in their own records, the federal exemption in the Homeland Security Act preempts state and local law when the information is shared with the feds. That means the federal government will dictate the breadth and depth of secrecy, and recent events augur poorly in that regard.

Mobile Bay test
Take the looming dispute in Mobile, Ala., over a liquefied natural gas plant. Mobile likely will be the testing ground for new restrictions on energy information, as Mobile Register reporters learned when they tried to access information about the safety concerns related to the proposed plant.

As you may recall, immediately following the 9/11 attacks, the Federal Energy Regulatory Commission began restricting access to information it deemed too sensitive and detailed. This approach culminated in a new rule allowing FERC to control access to critical infrastructure information. At the time, openness advocates criticized the rule as overly broad and vague, allowing FERC to restrict information critical to ensuring the accountable and safe operation of energy facilities.

Now ExxonMobil is proposing to build a liquefied natural gas plant just south of Mobile, close to residential areas. The Register, residents and other interested parties are making numerous inquires into the potential risks associated with this plant, and thus far are making little to no headway.

This much is known from previous governmental studies: Research on liquefied natural gas indicates that a fire in a single tanker compartment could result in a wall of flames a half-mile wide and hundreds of feet high. If an entire tanker caught fire, people two miles away could suffer second-degree burns. An elementary school and numerous homes are located within one mile of the proposed plant site south of Mobile.

When asked by the Register, an ExxonMobil spokesperson refused to even comment on what types of information the corporation might attempt to withhold. The company could try to restrict access to accident planning scenarios and other matters related to possible plant hazards, which companies have long sought to withhold from the public.

Closely related to the issue of the plant itself is the issue of transporting the gas. Since a relatively small hole in a tanker ship could create a conflagration under certain circumstances, the safety question involves not just the facility but the entire Mobile Bay.

Despite the safety concerns, the port authority and ExxonMobil have ignored calls for an independent study of the safety issues before the deal is set.

The Mobile Register has focused a steady spotlight of articles and editorials on the LNG terminal proposal. Mobile is one of several cities where new LNG terminals are being proposed.

A story by Ben Raines and Bill Finch cites contradictory and vague statements by FERC as to whether it even takes safety into consideration when licensing facilities such as the proposed LNG terminal. Their lead:

"The Mobile Register has been unable to find any evidence that federal agencies are required to consider the risks of giant liquefied natural gas tanker ships when deciding whether LNG terminals would be appropriate for populated areas like Mobile."

In previous written statements, even officials with the FERC, which oversees the permitting of onshore LNG terminals, said they would not take hazards posed by the ships into consideration when deciding whether to allow a terminal.

Controversies such as these offer no black-and-white solutions, and are sure to generate demand for information that will strain policy which so far has drawn little notice from anyone but lawyers and bureaucrats. Already in Maryland, a subsidiary of the Virginia-based utility, Dominion, has employed the new policy to restrict access to its emergency response plan - as well as operations and safety manuals - for its Cove Point liquefied natural gas terminal on Chesapeake Bay. The terminal lies some three miles away from a nuclear power plant. It sparked controversy two years ago when FERC approved its reopening and expansion one month after the 9/11 terrorist attacks.

Access advocates demand the "right to know." Energy officials prefer to limit access to "need to know." Somewhere there lies a golden mean.

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.