Sworn to Secrecy

“Knowledge will forever govern ignorance, and a people who mean to be their own governors,governors, must arm themselves with the power knowledge gives.”gives.” --James Madison, 1822

The Bush administration has moved to broadly restrict information that might interfere with its political agenda and point to stronger health, safety and environmental protections. Perhaps most signifi cant for its scope, Attorney General has reversed past policy under the Freedom of Information Act, and in essence instructed federal agencies to withhold information whenever possible. Meanwhile, the administration has cracked down on government whistleblowers and continually thumbed its nose at Congress – for example, refusing to turn over documents related to the corporate-dominated Cheney energy task force. Sept. 11 has also regularly been invoked to advance the cause of secrecy. In particular, the administration has withheld information on “critical infrastructure” and power companies, and removed tens of thousands of documents from the web, including information on chemical facilities. While the specifi c reasons for these restrictions are murky at best, the one clear effect has been to shield the administration and its corporate allies from public scrutiny. Sworn to Secrecy

Turning FOIA ‘discretionary disclosure’ of information on its Head to the need to safeguard institutional, On Oct. 12, 2001, Ashcroft issued a commercial, and personal privacy memorandum1 that urges federal agencies interests.”3 In other words, we are moving to exercise greater caution in disclosing from disclosure where possible to secrecy information requested under the Freedom of where possible. Information Act, which is a primary tool for As viewed by EPA’s general counsel office, obtaining health, safety and environmental “[I]n order to justify withholding a record, information, and much more. the agency no longer needs to be able to The memo affirms the Justice articulate a foreseeable harm that will befall Department’s commitment to “full us if the record is released.”4 This means that compliance with the Freedom of Information not only is the agency less likely to disclose, it Act,” but then immediately states it is won’t even provide an explanation for why it “equally committed to protecting other is withholding. fundamental values that are held by our society. Among them are safeguarding Auto Safety our national security, enhancing the In one of the most egregious examples, effectiveness of our law enforcement the Department of Transportation is agencies, protecting sensitive business withholding “early warning” data about information and, not least, preserving auto safety defects, including warranty personal privacy.” claim information, auto dealer reports, This new policy supersedes a 1993 consumer complaints, and data on child memorandum from then-Attorney General restraint systems and tires. Congress Janet Reno that promoted disclosure of required reporting of this information in government information under FOIA unless it response to the 2000 Firestone Tire debacle was “reasonably foreseeable that disclosure (in which faulty tires resulted in 271 deaths), would be harmful.” This standard of potentially creating a powerful tool for “foreseeable harm” is dropped in the Ashcroft the public to hold manufacturers and the memo. Instead, Ashcroft advises, “When you government accountable. carefully consider FOIA requests and decide Unfortunately, in July 2003, DOT to withhold records, in whole or in part, you issued a rule that claimed disclosure could can be assured that the Department of Justice “cause substantial competitive harm” – an will defend your decisions unless they lack a allowable exemption under FOIA – even sound legal basis...” though similar defect information has been In a number of cases, agencies have routinely made public before. expanded on the Ashcroft memo, affirming that the benefit of doubt no longer goes to Fox In the Henhouse disclosure, according to an audit covering Jacqueline Glassman, NHTSA’s chief counsel 33 federal departments and agencies by Glassman spearheaded the decision the National Security Archive,2 which files to withhold early-warning auto safety thousands of FOIA requests annually. information from the public. Prior to her The Department of Interior, for instance, appointment in 2002, Glassman was senior circulated the Ashcroft memo in an email counsel for the DaimlerChrysler Corporation, entitled, “News Flash – Foreseeable Harm where she spent seven years. The Alliance for is Abolished.” Interior later developed Automobile Manufacturers, which represents implementing guidance that stated, “We DaimlerChrysler, as well as eight other wish to emphasize that the shift related manufacturers, strongly opposed disclosure of to release of information under the the early-warning information. FOIA has moved from a presumption of

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“The DOT is trying to slip a vast The Bush administration appealed the exemption to the Freedom of Information circuit court’s decision to the Supreme Act in the back door,” said Amanda Frost, an Court, which accepted the case. Yet just days attorney with Public Citizen, which filed suit before oral arguments were set to begin, in March 2004 to force the administration to Congress approved an appropriations rider make the information available. “The agency that prohibits the ATF from using any funds has failed to show how disclosure would harm to comply with FOIA requests for the records manufacturers, but this exemption would in question. In response, the Supreme Court surely harm consumers.” vacated the decision and remanded the case, instructing the Seventh Circuit to reconsider in Gun Safety light of Congress’ action. The Bush administration has also fought a legal challenge by the city of Chicago to Stonewalling obtain records on gun purchases under Congress FOIA. Chicago requested these records from the Bureau of Alcohol, Tobacco, The Bush administration clearly does not and Firearms (ATF) to support a civil suit want to answer to Congress. Vice President against several manufacturers, wholesalers Cheney’s showdown with GAO was just the and dealers for allegedly promoting and most high profile case in what’s emerged facilitating the unlawful possession of as a pattern of stonewalling. From “Clear firearms. However, the Justice Department, Skies” to drinking water contamination to backed by the National Rifle Association, reform, the administration has been argued that such disclosure is exempt unwilling to deal with Congress honestly, and from FOIA because it would interfere with instead has sought to advance its agenda law enforcement proceedings and violate by withholding information that might personal privacy interests. spark open debate. Such secrecy subverts Early in 2003, the Seventh Circuit Court democratic decision-making and undermines of Appeals, based in Chicago, ruled in favor public accountability. of the city and ordered ATF to turn over its gun trace and sales databases, rejecting the The Cheney Energy Task Force administration’s arguments as overly broad. During the early months of the Bush According to the court, ATF can withhold administration, Vice President Cheney particular records that might interfere convened an energy task force whose ultimate with a specific investigation, but cannot recommendations, issued May 18, 2001, claim a blanket disclosure exemption for conspicuously reflected the interests of oil, the entire databases. Likewise, the public gas and coal companies. interest outweighs ATF’s sweeping claim of At the time, President Bush said, “I can personal privacy in concealing the names assure the American people that mine is and addresses of gun purchasers. In fact, an administration that’s not interested in privacy advocates such as the Electronic gathering dust. We’re interested in acting.” Privacy Information Center strongly backed As discussed earlier, this has meant weaker disclosure, arguing for more tailored environmental standards and more extensive privacy protections. drilling and mining on public lands. This information will help identify patterns Given this profound effect on to determine whether firearms used in crimes administration policy, members of Congress are sold by particular retailers or sold to and other interested parties began to raise particular purchasers, while allowing for an questions about the nature and composition evaluation of ATF’s effectiveness in monitoring of the Cheney task force, which took on unlawful sales and tracing crime guns.5 increased urgency following the collapse

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of energy-giant Enron. Unfortunately, the The Sierra Club and Judicial Watch (best administration refused to provide even known for its numerous lawsuits against the most elementary answers, triggering a Clinton administration officials) were joined number of hard-fought lawsuits. in another lawsuit against the task force Most troubling was the administration’s – officially called the National Energy Policy unwillingness to cooperate with the Development Group – to gain access to White General Accounting Office, the research and House documents, just as GAO was trying investigative arm of Congress. GAO tried for to do. In August of 2002, U.S. District Judge months to obtain access to the names of task Emmet G. Sullivan ordered these documents force participants, including anyone consulted turned over, but the White House failed outside government, as well as basic meeting to comply, drawing a strong rebuke from records, including dates and topics.6 However, Sullivan, who reaffirmed his order persistent stonewalling by Vice President Cheney that October. forced GAO to launch its first-ever lawsuit Not surprisingly, the White House against a federal official on Feb. 22, 2002. continued to resist disclosure as it appealed In announcing the decision to sue, David the case. On Dec. 6, 2002, a federal appeals M. Walker, GAO’s comptroller general, wrote, court issued a two-page order indefinitely “Failure to provide the information we are delaying the Dec. 9 disclosure deadline set seeking serves to undercut the important by Sullivan. principles of transparency and accountability Three days later, a Bush-appointed in government. These principles are important district court judge threw out GAO’s case, elements of a democracy. They represent finding that GAO lacked standing to sue, basic principles of ‘good government’ that regardless of whether Congress was entitled transcend administrations, partisan politics, to the documents. At the time, GAO seemed and the issues of the moment.”7 certain to appeal. But then congressional Meanwhile, a number of other interested Republicans started to put the squeeze on, parties had already initiated legal action of threatening to slash GAO’s budget if it didn’t their own. On Feb. 21, 2002, just as GAO was drop the lawsuit.10 In a statement on Feb. preparing its suit against Cheney, a federal 7, 2003, GAO announced that it would not district court ordered the Department of appeal, even though it strongly disagreed Energy to hand over task-force documents with the judge’s ruling.11 to the Natural Resources Defense Council. “[I]n the world’s greatest democracy, “Despite being heavily censored, the we should lead by example and base public documents show how the administration disclosure on what is the right thing to do allowed energy companies and their lobbyists rather than on what one believes one is to help write our nation’s national energy compelled to do,” Walker said at the time. plan,” NRDC reported. “For example, the Unfortunately, the administration has records reveal that Energy Secretary Spencer been more interested in preserving its “right” Abraham met privately more than 100 times to secrecy. The appeals court ultimately with industry executives and lobbyists – many affirmed Sullivan’s decision on July 8, 2003, of whom were major financial supporters but just over five months later, on Dec. of President Bush’s campaign. Yet Secretary 15, 2003, the Supreme Court granted the Abraham refused to meet with environmental administration’s request to review the ruling, organizations.”8 These documents also further delaying release of the task force revealed that Enron had contact with the task documents. Unfortunately, whatever the force four times, in addition to the six times outcome of this case (which is expected to company officials, including former chairman be decided by July 2004), there is now little Kenneth Lay, reportedly met with Vice stopping the administration from withholding President Cheney.9 information from GAO virtually as it pleases,

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striking a severe blow against transparency agency withheld information, later leaked, and accountability. that these cuts could be achieved relatively cheaply – increasing electricity prices by No Answers for the Minority Party two-tenths of a cent per kilowatt hour more In one of its more brazen moves, the than the Clear Skies Initiative. “All we’re administration announced that it would not interested in is having a full and honest answer any questions from the minority party debate so we can make a well-informed (which happens to be the Democrats in both decision,” Carper said. “I don’t believe that’s the House and Senate). In an email sent Nov. too much to ask.”15 5, 2003, to majority and minority staff on the House and Senate appropriations committees, Drinking Water and Lettuce Contamination Timothy A. Campen, director of the White EPA has prevented regional offices House Office of Administration, explained, from speaking to congressional staff about “Given the increase in the number and types perchlorate contamination. Perchlorate is of requests we are beginning to receive from found in rocket fuel and has contaminated the House and Senate, and in deference to the drinking water near Department of Defense various committee chairmen and our desire to sites in at least 22 states. On Jan. 15, 2004, better coordinate these requests, I am asking Reps. John Dingell (D-MI) and Hilda Solis that all requests for information and materials (D-CA) released a GAO report that found be coordinated through the committee the Pentagon had made little progress in chairmen and be put in writing from the cleaning up these sites.16 Democratic staff committee.”12 of the House Commerce Committee, where This would effectively give the Dingell is the ranking Democrat, followed Republican majority, which controls up with further investigation, but discovered congressional committees, veto authority that regional officials “had been instructed over inquiries from the Democratic minority. by an EPA headquarters official not to speak “I have not heard anything like that with committee staff.”17 Dingell and Solis happening before,” said Norman Ornstein, responded in a letter to EPA Administrator a congressional specialist at the American , stating, “There is no need Enterprise Institute. “As far as I know, this is to interject another level of Headquarters without modern precedent.”13 bureaucracy into the process unless there is a decision on your part to delay and hamper The Clear Skies Initiative EPA employees from providing information EPA withheld analysis showing that about the contamination of actual and the administration’s plan to reduce power potential drinking water supplies and the plant emissions – the “Clear Skies Initiative” health impacts for the public.” – is far less effective than alternative Previously, the administration imposed bipartisan legislation and only marginally a gag order on EPA scientists and regulators less expensive.14 Clear Skies does not from publicly discussing perchlorate after two address carbon dioxide emissions – a major independent studies from the spring of 2003 contributor to global warming – unlike strongly suggested that it is contaminating the the competing bill, which was introduced nation’s lettuce supply.18 An internal agency by Sen. Thomas Carper (D-DE) and is co- study – completed but bottled up – suggests sponsored by Republican Sens. Judd Gregg that perchlorate concentration in much of (NH) and Lincoln Chafee (RI). EPA gave the nation’s lettuce could range as high as 90 Carper an analysis that found his bill would parts per billion, more than four times EPA’s also more quickly and dramatically reduce current recommended daily dose.19 In 2002, power-plant emissions of sulfur dioxide, EPA found that perchlorate in drinking water nitrogen oxide and mercury. However, the poses a threat to human health, particularly

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infant development, at concentrations above into Medicare.22 As provided by legislative one part per billion. Defense contractors and language approved in 1997, Democrats the Pentagon, which potentially face hefty requested updated calculations based on compliance costs should EPA adopt a new changes in an administration-backed Medicare perchlorate standard, challenged the agency’s reform bill. Yet Scully refused to hand over findings, and have apparently won out with Foster’s analysis, saying he would release it the White House. “if I feel like it.”23 In response, the Natural Resources Testifying before the House Ways and Defense Council launched a legal challenge to Means Committee in March 2004, Foster force the administration to reveal documents said he had estimated at the time that the regarding industry and White House influence president’s plan – which was signed into law over EPA’s approach to perchlorate. (The in November 2003 – would cost $500 to $600 administration had previously denied NRDC’s billion over the next decade, substantially request for these documents under the higher than the $395 billion forecast by the Freedom of Information Act.) Congressional Budget Office and the $400 “It appears that the White House and billion the president said he would spend. Pentagon have joined forces with a handful of “We know you would not have had the votes defense contractors to stop EPA from doing to pass this bill if the true cost of the bill its job,” said Erik Olson, a senior attorney with was known,” Rep. Charlie Rangel (D-NY), NRDC. “They want EPA out of the business the committee’s ranking Democrat, said to of protecting the public from this dangerous Republican members, adding he was amazed tap water toxin because it would cost the “how far the majority party was willing to go Pentagon and industry polluters millions of to keep the Congress in the dark.”24 dollars to clean it up.”20 Justice Department Secrecy Medicare Reform On March 27, 2003, the Justice In June of 2003, Bush Medicare chief Department issued a directive that seeks to Tom Scully threatened to fire his top actuary, tighten control over communication between Rick Foster, if Foster released calculations to department employees and Congress. House Democrats that called into question Specifically, employees are to inform the the administration’s prescription-drug department’s Office of Legislative Affairs plan to introduce private managed care “ahead of time and as soon as possible – of all potential briefings on Capitol Hill and Fox In the Henhouse significant, substantive conversations with Tom Scully, former administrator of Centers for staff and members on Capitol Hill,” including Medicare and Medicaid phone calls. Legislative Affairs, in turn, must Prior to his appointment as CMS clear the contacts and accompany employees administrator, Scully served as president and to briefings. CEO of the Federation of American Hospitals, Sen. Charles Grassley (R-IA), co-sponsor the trade association representing for-profit of legislation to enhance whistleblower hospitals. He also served on the board of protections, called the directive “an attempt Oxford Health Plans and DaVita Corporation, to muzzle whistleblowers” and “a very two of the nation’s largest health care service inappropriate interference,” adding that he providers. Months before Scully resigned in has already observed a chilling effect.25 December 2003, he obtained a waiver from Rep. James Sensenbrenner (R-WI), HHS officials permitting him to work on for one, has contended that the Justice Medicare legislation while negotiating with Department has failed to share enough potential employers whose work would be information on the implementation of the affected by it.21 USA Patriot Act, which greatly expanded the government’s ability to conduct domestic

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surveillance. The act is set to sunset in technical deficiencies in the project.28 A 2005, and Congress must be able to give Labor Department investigator deemed this a fair evaluation in deciding whether to termination “extraordinarily egregious.”29 reauthorize. Cleanup of Nuclear Waste EPA ombudsman Robert J. Martin Cracking Down on Whistleblowers alleges that former EPA Administrator Christie Todd Whitman punished him for Government whistleblowers perform opposing a number of nuclear-waste cleanup an essential societal function. They settlements that appeared to be industry alert the public to problems that would giveaways. This included a settlement with otherwise be allowed to fester in secret, Citigroup – a principal investor in the venture and in doing so, create pressure to solve those problems. Frequently, lives are at Fox In the Henhouse stake. During the Bush administration, for Robert Card, DOE’s undersecretary for energy, example, a USDA meat inspector warned science and environment of listeria contamination; two Department Card is the lead federal official in charge of Energy employees testified on rampant of developing the multi-billion dollar Yucca mismanagement at Yucca Mountain, which Mountain nuclear waste dump, where the is set to become the country’s nuclear administration plans to ship 77,000 tons of waste dump; and an FAA employee spent nuclear fuel from the nation’s nuclear publicly complained about the rigging electricity plants and bury it for tens of of mock terrorist raids, which left a false thousands of years. impression of readiness. Unfortunately, Previously, beginning in 1995, Card was instead of acting on this information, the director and senior vice president of CH2M- administration sought to punish each one of Hill, a large science, engineering, construction, these whistleblowers for speaking out. and operations firm, which is under DOE contract to clean up the Hanford (Washington) Yucca Mountain Nuclear-Waste Dump nuclear weapons site. Card also served as In May of 2003, the Department of president and CEO of Kaiser-Hill – founded Energy intimidated and silenced two by CH2M-Hill – which has a 10-year $7 billion potential whistleblowers from testifying DOE contract to clean up and close the before Congress on politicized scientific Rocky Flats (Colorado) nuclear weapons site. reports and rampant mismanagement at Both contracts fall under Card’s purview as Yucca Mountain, which Energy is pushing undersecretary. to make the nation’s nuclear-waste dump.26 At Rocky Flats, DOE has fined Remarked Sen. John Ensign (R-NV), “It is and reprimanded Kaiser-Hill for poor disturbing that responsible workers who management and “serious deficiency” in uncover problems with Yucca Mountain safety performance, and the company had procedures are being retaliated against by to pay restitution after revelations that the Department of Energy and its contractors. $200,000 in federal contract money had been Their attempts to silence critics of the project diverted to fight a whistleblower.30 Parent have amplified our concerns about their company CH2M-Hill has also been fined or commitment to quality assurances at Yucca penalized more than $725,000 since 1996 Mountain.”27 Previously, in fall of 2002, for numerous worker safety, procurement, DOE transferred the project’s director of and other contract violations, and a House quality assurance and ordered the firing of subcommittee found it overcharged the another quality assurance manager because EPA Superfund millions of dollars for of their aggressiveness in identifying environmental cleanups.31

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capital firm of Whitman’s husband – that with hunters. The Park Service initially put limited the financial giant’s liability for a a “gag order” on Jackson, prohibiting him Superfund site in Denver to $7.2 million, from talking to the press, and then retaliated leaving taxpayers with a potential $93 by refusing to rehire him for the summer of million tab for the remaining cleanup costs, 2002.38 Fortunately, as a result of a whistle- according to Martin.32 Whitman decided to blower complaint, Jackson was able to move Martin to EPA’s Office of Inspector negotiate his reinstatement for the summer General after this dispute. However, Martin of 2003.39 “He’s been through the wringer refused the transfer and resigned on April 22, for no apparent reason other than speaking 2002, because “I will not continue to serve as the truth,” Sen. Grassley said. “I’m glad the an independent ombudsman but will merely National Park Service finally came to answer a telephone.”33 its senses.”

Listeria-Contaminated Food Airport Security Vincent Erthal, a USDA inspector who The Federal Aviation Administration worked the night shift at a Wampler Foods transferred Bogdan Dzakovic, who formerly plant in Franconia, Penn., repeatedly led mock raids on airports, to bureaucratic reported food safety violations at the facility Siberia after he publicly faulted the agency – including Listeria contamination – and for suppressing warnings and rigging requested enforcement action in the fall of security tests.40 “The more serious problems 2001.34 Yet USDA ignored these warnings in aviation security we identified, the more and 10 months later the plant was linked to the FAA tied our hands behind our backs and a listeria outbreak that killed eight people restricted our activities,” Dzakovic told the and sickened more than 50, resulting in National Commission on Terrorist Attacks the recall of 27 million pounds of ready-to- Upon the United States, in testimony May eat poultry products. When the Wampler 23, 2003. “All we were doing in their eyes story received media attention, USDA was identifying and ‘causing’ problems Undersecretary for Food Safety Elsa Murano that they preferred not to know about.” attempted to discredit Erthal, claiming “he Dzakovic further described his reassignment has not produced any proof, any evidence”35 to the new Transportation Security Agency: of USDA negligence (leaving aside the “During most of 2002, my primary job fact that inspectors are prohibited from was punching holes in paper and putting removing government documents from orientation binders together (and other inspected establishments36), and seemed menial work) for the hundreds of newly to imply that he was responsible for the hired TSA employees. My current job is outbreak because he didn’t push “harder to even further removed from keeping bombs, blow the whistle.”37 weapons, and terrorists off planes.” Dzakovic also warned that his fate could Hunting Around Yellowstone have been worse under the new law pushed At the beginning of the Bush by the Bush administration that restricts administration, Bob “Action” Jackson, a critical infrastructure information (discussed long-time seasonal ranger at Yellowstone below): “If an employee blows the whistle National Park, raised concerns over with this unclassified CII evidence, it is a lax enforcement of wilderness rules. In criminal act subject to immediate termination particular, he turned the spotlight on from the government, and up to a year in hunters who use salt to lure elk out of the jail… If it had been law when I blew the park and then leave behind carcasses that whistle, I could have been fired and be attract endangered grizzly bears, which are sitting in jail instead of being vindicated and frequently shot when they come into contact testifying today.”

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Far from being a threat, such whistleblowing voluntarily handing it over to Homeland is essential to protecting the public. As Dzakovic Security. This information cannot be put it, “Lack of personal accountability for disclosed to the public, and crucially, it ALL levels of government service; repression cannot be used in any civil action, private or of government professionals exercising the governmental, even if the action concerns a freedom to warn of security breakdowns caused violation of legal standards. Any government by mismanagement; and abuses of secrecy official who “leaks” such information is as an excuse to cover up the government’s own further subject to criminal prosecution and misconduct are three strikes against up to a year in prison.41 public safety.” Purportedly, this is supposed to give an incentive to companies to report information on possible security vulnerabilities. Yet in Hiding Information in the Name of 9/11 the process, it creates an enormous loophole to dodge public accountability for corporate In the aftermath of 9/11, the administration wrongdoing. Indeed, companies themselves has moved to broadly restrict access to are allowed the chief responsibility for information, including, for example, data on determining what constitutes “critical power plants and chemical facilities. In the infrastructure information,” with virtually no past, the public has used such information criteria for government validation. to hold corporate interests and government As a result, potential abuses are not hard accountable to achieve significant safety to imagine – especially if interpreted broadly improvements. However, the administration by the increasingly corporate-friendly courts. has declined to even consider the idea that For instance, suppose a manufacturer begins disclosure can actually make us safer, while using a new unregulated chemical in its upholding our democratic values. Instead, production process that is highly flammable secrecy has taken root through a host of and can cause acute respiratory distress, misguided policies, whose clearest effect has endangering workers and the surrounding been to shield the administration’s corporate community. Under the new law, the allies from public scrutiny. manufacturer could head off inquiries from federal regulators – and stop workers and A Black Hole for Corporate Secrets the public from being alerted – by disclosing To protect our nation’s communities we potential vulnerabilities associated with need to ask ourselves some tough questions. the chemical to Homeland Security. In the Are bank computer systems safe from hackers? process, it would block the information from What threat is posed by hazardous chemicals being used in a civil action should something stored near population centers? How secure are ever go wrong, resulting in injuries or deaths. state water supplies or electrical power facilities? Needless to say, this removes important Are local health systems adequately prepared to incentives for fixing the problem, making us respond to a community emergency? less safe as a result. Homeland Security may Unfortunately, the answers to these be alerted to the danger, but its hands would questions are now more elusive thanks to a be tied to do anything about it. Meanwhile, new exemption to the Freedom of Information everyone else is left permanently in the Act, which was pushed by the Bush dark, removing the threat of public pressure administration as part of the law that created and embarrassment – which has always the Department of Homeland Security. been a crucial factor in changing corporate Under this expansive exemption, behavior – as well as civil action against which also preempts state disclosure laws, company negligence. companies can permanently inoculate such In the lead-up to passage, Sen. Robert “critical infrastructure information” by Bennett (R-UT), a key co-sponsor of the

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legislation, originally reached a compromise shortages caused by soaring demand. As with Sens. Carl Levin (D-MI) and Patrick Leahy details emerged, however, it became clear (D-VT) that stripped out the most troubling that these companies had purposely caused provisions – preempting state disclosure the shortages to drive up prices and pad their laws, granting civil immunity, and subjecting bottom line – taking advantage of the state’s government officials to criminal penalties for deregulation of electricity two years earlier. leaks. The Governmental Affairs Committee In a plea agreement, the head of Enron’s approved this version on May 22, 2002, but western trading desk, Timothy Belden, during the lame-duck session following the acknowledged that between 1998 and 2001, 2002 elections, the Bush administration he and “other individuals at Enron agreed to insisted that these provisions be restored. devise and implement a series of fraudulent Not surprisingly, a number of powerful schemes” in the California market designed corporate interests urged this decision. Born to “obtain increased revenue for Enron from in the aftermath of the “Y2K” problem, the wholesale electricity customers and other idea originated with the computer industry market participants…”45 over concerns about cyber security, but This market manipulation should have quickly drew interest from the traditional been obvious to the Federal Energy Regulatory manufacturing sector, such as the Edison Commission, which repeatedly refused to Electric Institute, a trade association for take action to protect consumers. As stated in electric utilities.42 a report by the Senate Governmental Affairs In fact, as Maryland Law Professor Rena Committee on Nov. 12, 2002, “On a number of Steinzor conveyed, “EEI’s advocacy was so occasions, FERC was provided with sufficient pronounced that, during a fall 2001 visit to information to raise suspicions of improper [Bennett’s office], I was startled to discover activities – or had itself identified potential that an EEI lobbyist named Larry Brown had problems – in areas where it had regulatory been invited to the meeting to explain how responsibilities over Enron, but failed to the prospective law was intended to operate. understand the significance of the information Although Mr. Brown assured me that my or its implications. Over and over again, FERC comments about the legislation’s overly broad displayed a striking lack of thoroughness and language were ‘paranoid,’ it rapidly became determination with respect to key aspects of clear that none of the bill’s industry supporters Enron’s activities – an approach seemingly had any interest in making revisions to embedded in its regulatory philosophy, address such concerns.”43 regulations, and practices.”46 Likewise, Homeland Security’s Now FERC is insisting that it be trusted, implementing rule44 provides no clarity absent public disclosure, to appropriately for validating claims and no process to monitor and deal with information on the “declassify” critical infrastructure information, country’s power companies. On March 3, 2003, setting up the Bush administration as a black FERC completed a rule that exempts “critical hole for corporate secrets. energy infrastructure information” from the Freedom of Information Act. This exemption, Cloaking the Power Industry which is legally questionable under FOIA, FERC, lead by Bush appointees, has made includes anything deemed potentially useful it more difficult for the public to evaluate to a person planning an attack on “production, problems with our electrical supply, which is generation, transportation, transmission or especially troubling given the commission’s distribution of energy.” recent lackluster performance. Between Needless to say, this is incredibly broad. November 2000 and May 2001, California For example, FERC no longer discloses endured rolling blackouts to compensate for “historical transmission planning reports,”47 what power companies said were electricity in which utilities describe their power flow,

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transmission plans and reliability, and present FERC actually removed such information a detailed evaluation of system performance.48 from its web site before completing the rule This sort of information could be especially and just after the terrorist attacks of Sept. 11, important as the country moves to address 2001. In the process, the commission assumed deficiencies in the electrical grid following the that “all oversized documents” contained massive power outage that swept through information that should not be disclosed. No New York, parts of New Jersey, Ohio and review was undertaken to confirm the truth of Michigan in August 2003. this assumption. In an amazing provision of the rule urged FERC, in its words, “next identified and by the power industry, utilities also no longer disabled or denied access to other types of have to publicly disclose plans for building a documents dealing with licensed or exempt new plant – leaving no opportunity for public hydropower projects, certified natural gas questioning at any point. Likewise, FERC is pipelines, and electric transmission lines withholding maps on proposed pipelines, which that appeared likely to include critical carry high-pressure explosive gas, including one energy infrastructure information” – again, that would run through 12 New York counties.49 automatically yanking them from public view with no systematic review. According Foxes In the Henhouse to FERC, this affected “tens of thousands of Nora Mead Brownell, Patrick Henry Wood documents,” which the commission laughably III, and Joseph T. Kelliher, Federal Energy asserts was “undertaken as cautiously and Regulatory Commission methodically as possible.”51 With the new Enron CEO Kenneth Lay successfully rule – which was strongly backed by power lobbied President Bush to appoint Brownell companies, including their trade association, and Wood, both of whom are strong the Edison Electric Institute – these once proponents of energy deregulation.50 widely disseminated documents may be off Brownell, chair of the commission, limits even through a FOIA request. previously served as a utility regulator with the Pennsylvania Public Utility Commission Information on Government Web Sites (PPUC). In this capacity, she helped Enron Following the terrorist attacks on Sept. move into Pennsylvania, earning herself the 11, 2001, federal agencies began summarily nickname “Nora Mead Brownout.” Before removing tens of thousands of documents her appointment to the PPUC, Brownell was from their web sites, purportedly because they senior vice president for corporate affairs at might be useful in preparing another attack. Meridian Bancorp, a financial Yet in yanking this information, the Bush institution, and had no experience in public administration failed to consider the substantial utility management. benefits of disclosure, depriving communities Wood is former chairman of the Public of critical information to protect themselves Utility Commission in Texas and previously (see examples on next page). worked at Baker & Botts, a big Texas oil This information can be scary, to be sure, law firm. but its removal doesn’t solve the problem. Kelliher previously worked at Public In fact, it removes important incentives Service Electric and Gas Company as for change – namely public pressure manager of federal affairs, and before that and embarrassment – and may invite worked for the American Nuclear Energy complacency and a false sense of security, Council in the late 1980s. Just prior to his which is exactly what we don’t need. In this nomination, Kelliher served as a senior policy way, disclosure can be a potential tool to advisor to Energy Secretary fight terrorism (along with everyday health and sat on the Bush-Cheney presidential and safety concerns) while upholding our transition team. democratic values.

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Of course, in some cases, it may make implement procedures” for suppressing sense to withhold information for security such information, which is truly an ominous reasons. For instance, there is no compelling development given the administration’s reason to provide detailed floor plans of penchant for secrecy. chemical or nuclear facilities. Yet where health and safety are concerned, the presumption Information on Chemical Hazards should lie with disclosure. The Bush In 1984, a Union Carbide plant in Bhopal, administration has unfortunately gone the India, released 40 tons of the toxic chemical other way, keeping the public in the dark and methyl isocyanate into the surrounding potentially making us less safe as a result. community, killing more than 2,000 and On March 19, 2002, White House Chief injuring over 300,000, many of whom of Staff affirmed the practice still suffer long-term effects.54After this of withholding information from web sites catastrophe, Americans began wondering in a memo to all federal agencies ordering whether such an accident could happen here them to “safeguard” information that is – and the answer demanded action. “sensitive but unclassified.”52 This new A study commissioned by EPA in 1990 category broadly includes, in the agency’s found that since 1980 there were at least 15 judgment, “information that could be misused accidents in the United States that exceeded to harm the security of our nation and the Bhopal in volume and toxicity of chemicals safety of our people” – a virtual catchall since released.55 Only circumstances such as most information (even the phone book, for wind conditions, containment measures, instance) at least carries the potential to be and rapid evacuations prevented disastrous used for harm. consequences from taking place. Shortly after Card’s memo, a provision Congress responded to this danger codifying the “sensitive but unclassified” through a series of actions designed to make category – labeled “Sensitive Homeland chemical facilities more accountable to Security Information” – was slipped into the the public. In particular, as part of the 1990 Homeland Security Act (which created the amendments to the Clean Air Act, Congress Department of Homeland Security), drawing directed each facility to develop a “Risk no attention or debate.53 The president now Management Plan,” which EPA is to make has the legal authority to “prescribe and available for public scrutiny.

Information Yanked from Government Web Sites • Report by the Department of Energy on the • Chemical-facility Risk Management Plans. dangers of liquefied gas fuel.

• Report on chemical site security that • Maps from the International Nuclear Safety concluded “security around chemical Center allowing users to click on the location transportation assets ranged from poor to of a nuclear plant to learn more about it. non-existent.”56 • For a time, the entire Nuclear Regulatory • Data on enforcement actions by the Federal Commission web site. “Select content” was Aviation Administration.57 later restored.

• Maps from the Office of Pipeline Safety • Reports on water resources by the U.S. that show the location of pipelines and Geological Survey, which also instructed the whether and when they have Federal Depository Libraries to “destroy” all been inspected. copies of a CD-ROM on “characteristics of large public surface water supplies.”

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These plans include, among other things, and safety advocates have already used this five-year accident histories, measures to information to highlight problems at specific prevent an accidental release, response facilities. For example, exposure of this data plans to mitigate damage should one occur, led to hazard-reduction measures at the Blue and assessments of potential dangers to Plains Wastewater Treatment Plant, whose surrounding communities, including worst- vulnerability zone included the White House, case scenarios. Congress, and Bolling Air Force Base (see More than two years before the 9/11 page 61 for discussion). In short order, the terrorist attacks, Congress decided to Blue Plains facility substituted chlorine with restrict access to these worst-case scenario sodium hypochlorite bleach, which does not assessments for security reasons, making have the potential to drift off-site. them available only in 50 “reading rooms” The Washington Post also relied on RMP around the country. This happened after the data – including the worst-case scenarios chemical industry – a longtime opponent of restricted by Congress – to describe a number such disclosure – convinced the FBI that this of frightening possibilities in an extensive data created an increased risk of terrorism. front-page story on Dec. 16, 2001.58 For At the time, the FBI determined there instance, “a suburban California chemical was no increased risk associated with the plant routinely loads chlorine into 90-ton rest of the information contained in Risk rail cars that, if ruptured, could poison more Management Plans. Nonetheless, even after than 4 million people in Orange and Los this scrubbing, the RMPs were immediately Angeles counties”; “a Philadelphia refinery yanked from EPA’s web site following 9/11. To keeps 400,000 pounds of hydrogen fluoride date, all RMP information remains down, and that could asphyxiate nearly 4 million no explanation for its removal has been given nearby residents”; and “a South Kearny, (other than in the most general sense). N.J., chemical company’s 180,000 pounds of While the usefulness of this information chlorine or sulfur dioxide could form a cloud to terrorists is murky or perhaps nonexistent, that could threaten 12 million people.” the broader usefulness is crystal clear, Some continue to argue that the mere enabling citizens to hold facilities reporting of such information is gravely accountable to make upgrades and improve dangerous. Yet ignoring it, as the Bush safety in their communities. administration has done thus far, is far Although new – EPA did not begin worse. The information may be gone, but posting RMPs until June of 1999 – health the danger remains.

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