SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2002, Issue No. 89
September 13, 2002

SELECTIVE ACCESS TO CRITICAL ENERGY INFO PROPOSED

In a post-September 11 measure to regulate public access to government information, the Federal Energy Regulatory Commission (FERC) is proposing to limit release of "critical energy infrastructure information" (CEII) to selected public requesters based on their need to know, as determined by the Commission.

CEII refers to energy-related information that "could be useful" to a person planning an attack on the critical infrastructure of the United States, which in turn refers to U.S. systems or assets that are vital to the national or economic security of the country or to the public health.

"Specifically, the Commission proposes to change its regulations to restrict unfettered general public access to critical energy infrastructure information, but still permit those with a need for the information to obtain it in an efficient manner," according to a notice in the Federal Register today.

In effect, FERC is proposing a tiered system of public access to its energy information. While anyone can request anything under the Freedom of Information Act, FERC would withhold certain previously public information that it says is exempt from mandatory disclosure under the FOIA and would only make such information available to requesters who are deemed to have a legitimate need for it.

"An important objective of the proposed rule is the reconciliation of the Commission's regulatory responsibilities... and the need to protect the safety and well being of American citizens from attacks on our nation's energy infrastructure," FERC said in its Federal Register Notice.

FERC stressed that the new category of selectively available information would consist only of information that is already exempt from disclosure under the FOIA.

"The Commission has no intention of adopting an approach that would ignore the agency's obligations under the FOIA, which requires that all non-exempt information be made available to the public," the Notice stated.

See the FERC Notice of Proposed Rulemaking on Critical Energy Infrastructure Information, published in the September 13 Federal Register, here:

A GUIDE TO FOIA LITIGATION

"Litigation Under the Federal Open Government Laws 2002" is the new edition of a standard reference work that deserves a place in the library of everyone who is involved in, or thinking about, litigation under the Freedom of Information Act or related laws.

It concisely summarizes the recent case law on each of the FOIA's nine exemptions, and provides scrupulous commentary as well as advice on litigation strategy.

The subject matter is identical to that contained in the Justice Department's useful "Freedom of Information Act Guide," newly updated in May 2002. But where the Justice Guide is written from a government point of view, the new volume provides the perspective of non-governmental litigators.

As a pro se litigant in two pending FOIA cases, I was saved from an unnecessary and possibly decisive procedural error by a quick review of this well organized new work.

"Litigation Under the Federal Open Government Laws 2002" is edited by Harry A. Hammitt, David L. Sobel, and Mark S. Zaid. It is published by the Electronic Privacy Information Center and the James Madison Project. For more information see:

DEMOCRACY BY DISCLOSURE

The notion of official "transparency," like that of an "open society," is typically viewed as an unalloyed good and is for the most part an unexamined one.

In her new book "Democracy by Disclosure: The Rise of Technopopulism," Mary Graham stops to examine it.

While the benefits of information disclosure are clear in principle -- citizen empowerment, official accountability, and so forth -- the principle doesn't correspond precisely to the actual practice, which is complicated by such things as erroneous or incomplete data, claims concerning proprietary and privacy information, and other factors.

"In practice, providing the public with facts to make decisions that translate into improved health and safety has proven surprisingly hard to do," writes Graham, "and there are serious dangers in doing it badly." See:

RESOURCES ON IRAQ, ETC.

The White House issued a background paper September 12 on Iraqi violations of United Nations Security Resolutions entitled "A Decade of Deception and Defiance." The paper is posted here:

"War Powers Resolution: Presidential Compliance" is the subject of a timely Congressional Research Service (CRS) report by Richard F. Grimmett, updated September 10:

Another CRS report entitled "Iraq: Former and Recent Military Confrontations with the United States" by Alfred B. Prados, updated September 6, is posted here:

"Iraq: Compliance, Sanctions, and U.S. Policy" by CRS analyst Kenneth Katzman, updated September 6, is posted here:

The attorney for Steven J. Hatfill protests the Justice Department's identification of his client as a "person of interest" in connection with the FBI anthrax investigation in the second installment of Hatfill documents published on the Weekly Standard web site today. See David Tell's "Letters to the Law":

The Department of Energy's ability to carry out underground explosive testing of nuclear weapons within two to three years of a Presidential decision to do so is "at risk," according to a new DOE Inspector General report. "Key aspects of the Department's [nuclear] testing process and infrastructure have experienced significant degradations in the last decade," according to the September 9 report, entitled "National Nuclear Security Administration's Test Readiness Program." See:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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