March 11, 2002
Comments Of Public Citizen on FERC's Plans to Restrict Access To Critical Energy Infrastructure Information
Federal Energy Regulatory Commission
888 First Street, NE
Washington, DC 20426
Notice of Inquiry On Public Availability of Critical Energy Infrastructure Information Docket No. RM02-4-000 and PL02-1-000
COMMENTS OF PUBLIC CITIZEN IN RESPONSE TO THE FEDERAL ENERGY REGULATORY COMMISSION'S NOTICE OF INQUIRY ON RESTRICTING ACCESS TO CRITICAL ENERGY INFRASTRUCTURE INFORMATION
Public Citizen submits these comments in response to the Federal Energy Regulatory Commission's Notice of Inquiry in which the Commission requested comments on the appropriate treatment of critical energy infrastructure information that, prior to October 11, 2001, was made available to the public by the Commission. 67 Fed. Reg. 3129-35 (Jan. 23, 2002). The Notice of Inquiry indicates that the Commission has, and intends to continue to, impose restrictions on access to records that it receives from regulated entities in order to limit the public availability of information in the records “to those who have a legitimate need for the information,” and to place the recipients “under an obligation to protect the information from disclosure.” 67 Fed. Reg. 3132. Public Citizen believes that such a policy is inconsistent with the FOIA unless the records are exempt from disclosure under the FOIA. Nothing in the Commission's enabling statutes allow it to make agreement to a confidentiality order, or other conditions, a prerequisite for members of the public to inspect and copy records that do not fall within one of the exemptions set forth in 5 U.S.C. § 552(b) of the FOIA.
Prior to the enactment of the FOIA in 1966, the applicable law gave agencies “broad discretion . . . in deciding what information to disclose,” including the ability to make information available on a preferential basis to entities that the agency believed should have access. GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 385 (1980). The FOIA was enacted to limit agency discretion regarding disclosure, and close “the 'loopholes which allow agencies to deny legitimate information to the public.'” Id. (quoting S. Rep. No. 813, at 3); see also EPA v. Mink, 410 U.S. 73, 79 (1973); Department of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989). Under the FOIA, an agency must disclose agency records “unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b).” Department of Justice v. Julian, 486 U.S. 1, 8 (1988). The exemptions set forth in the statute are “explicitly exclusive.” FAA Administrator v. Robertson, 422 U.S. 255, 262 (1975). An agency may not withhold records that do not fall within one of the exemptions in the statute.
Consequently, the FOIA imposes important limits on the Commission's ability to adopt a policy in which the Commission defines a category of information that is off-limits to the general public, and afford access selectively to entities that satisfy certain conditions. In the Notice of Inquiry, the Commission identifies the category of information that will be protected by its policy as “Critical Energy Infrastructure Information” or CEII. Our comments are directed principally at the questions in the Notice of Inquiry under the headings “Definition of Critical Energy Infrastructure Information” (Questions B.1 & B.2) and “Applicability of FOIA Exemptions” (Questions F.1-5).
In our view, the appropriate definition of CEII is directly linked to the FOIA exemptions. If the Commission were to adopt a policy of restricting access to CEII that did not fall within a FOIA exemption, that policy would obviously violate the FOIA. The Notice of Inquiry identifies the information to be protected as documents “that detail the specifications of energy facilities licensed or certificated” under part I of the Federal Power Act and section 7(c) of the Natural Gas Act, and suggests that it may also be appropriate to protect “information relating to the transmission of electricity.” 67 Fed. Reg. at 3131. These definitions are too broad because they are not linked to the exemptions set forth in the FOIA, and would result in restricting access to documents that FOIA mandates must be accessible to the public. Indeed, these proposed definitions suggest that the Commission would classify information as CEII without considering whether the information is secret or confidential, the likelihood that harm would result from disclosure, or the value of public access to the information. Such an approach would impose counter-productive secrecy and is foreclosed by the FOIA.
Accordingly, the primary consideration that the Commission should use to determine which information should be protected is whether the documents are covered by one of the FOIA's exemptions. We believe that the only exemption that is likely to cover a substantial number of documents concerning critical energy infrastructure information is Exemption 4, which allows the Commission to withhold “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). This Exemption does not permit the agency to withhold information that the submitter already discloses to the public or makes available to competitors and, therefore, would not permit withholding some of the site information that the Notice of Inquiry contemplates may be protected CEII. See 67 Fed. Reg. at 3131. The Commission already has a procedure in its regulations that allows entities that submit such information to request privileged treatment. See 18 C.F.R. § 388.112. The Commission might consider expanding these procedures to list the types of information that a request for privileged treatment on this ground must provide to justify withholding under 5 U.S.C. § 552(b)(4). See, e.g., 49 C.F.R. § 512.4(b)(3) (Department of Transportation regulations on submissions required when request is made for confidential treatment).
We disagree with the suggestion in the Notice of Inquiry that Exemptions 2 and Exemption 7(F) are likely to apply the CEII. Exemption 2 is only applicable to documents that are “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). We think that it is highly unlikely that this exemption will apply to many documents describing energy facilities. See Department of Air Force v. Rose, 425 U.S. 352, 369-70 (1976); Founding Church of Scientology v. Smith, 721 F.2d 828, 830-31 n.4 (D.C. Cir. 1983) (records may be covered by Exemption 2 where they “fall within the terms of the statutory language as a personnel rule or internal practice of an agency”).1 Indeed, records received from private submitters could not be properly withheld under Exemption 2 because both the text of the statute and the precedents make clear that this exemption is limited to internal agency materials. See Crooker v. Bureau of Alcohol Tobacco & Firearms, 670 F.2d 1051, 1073-74 (D.C. Cir. 1981) (en banc)
Exemption 7(F) allows the Commission to withhold records compiled for law enforcement purposes to the extent that disclosure “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). The courts have found that this exemption permits agencies to withhold the identities of law enforcement personnel and informants from law enforcement records where their safety would be endangered. See Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977); Durham v. United States Dep't of Justice, 829 F. Supp. 428, 433 (D.D.C. 1993). We think that this exemption is likely to have little, if any, applicability to energy facility information submitted to the Commission.
Perhaps most importantly, we do not think that any of these exemptions would justify withholding documents that the Commission previously made public. For example, if documents were subject to a valid claim that they should be withheld to prevent disclosure of trade secrets or confidential information, the Commission would not have made these materials public under the policies in place prior to October 11, 2001, because of its obligations under its regulation concerning privileged materials, 49 C.F.R. § 388.118, and the Trade Secrets Act, 44 U.S.C. § 1904. Similarly, the documents that the Commission made available to the public in its public reference room prior to October 11, 2001, did not include sensitive law enforcement records that would be exempt from disclosure under 5 U.S.C. § 552(b)(7)(F).
In short, we believe that the policy adopted by the Commission to restrict disclosure of energy facility information must be limited to documents that fall within one of the FOIA's exemptions. These exemptions cover a more limited range of documents than the Notice of Inquiry suggests may be protected as CEII. However, the FOIA does not permit the Commission to broaden the categories of information that are exempt from public disclosure, and a Commission policy on CEII that attempts to do so would be inconsistent with the FOIA's “general philosophy of full agency disclosure.'” S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965), and Congress's mandate “'to open agency action to the light of public scrutiny.'” Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 772 (1989) (quoting Department of Air Force v. Rose, 425 U.S. 352, 372 (1976)).
Michael E. Tankersley
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
Footnote: 1 The Notice of Inquiry mistakenly states that Attorney General John Ashcroft's October 12, 2001 memorandum to the heads of agencies and departments states that “[a]ny agency assessment of, or statement regrading, the vulnerability of such a critical asset should be protected pursuant to Exemption 2.” 67 Fed. Reg. at 3133. The Attorney General's memorandum contains no such statement. Other guidance issued published by the Department of Justice along with the Attorney General's memorandum discusses the potential use of Exemption 2 to protect information concerning the vulnerability of an agency's critical assets. See Department of Justice, Office of Information and Privacy, “FOIA Post,”October 15, 2001, available at http://www.justice.gov/archive/oip/foiapost/2001foiapost19.htm.