Ruling Vastly Expands Official Secrecy on Infrastructure
Troves of Public Safety Information Cloaked by FOIA Law Enforcement Exemption
Washington, DC — A sweeping new appellate court decision justifies federal agencies withholding substantial public safety information concerning dam failures, chemical spills and other critical events, according to Public Employees for Environmental Responsibility (PEER). The ruling blocked PEER’s attempts to force release of the emergency plans in the event of failure of two large international storage dams on the Rio Grande River and inundation maps showing the areas likely to be flooded.
A panel of the U.S. Court of Appeals for the District of Columbia decided this week that this material could be withheld because “terrorists or criminals could use that information to determine whether attacking a dam would be worthwhile.” The court’s reasoning significantly expands the scope of the exemption under the Freedom of Information Act for material compiled for “law enforcement purposes.”
“Under the standard articulated by the court, the majority of information about known risks and planned responses to virtually every emergency could be placed off limits,” stated PEER Senior Counsel Paula Dinerstein, who filed the complaint and argued the appeal. “This ruling will block affected communities from learning about plans to prevent and respond to chemical spills,” added Dinerstein, noting recently-plagued West Virginia, oil blowouts that fouled the Gulf of Mexico and even steps needed to prevent and respond to contamination of food and drugs.
The case involves the actions of a little-known agency called the United States Section, International Boundary and Water Commission (USIBWC) which implements border treaties with Mexico and, in so doing, jointly operates several international dams and water treatment plants along the border. Despite acknowledging external reviews showing two major structures, the Falcon and Amistad Dams, are in “urgent” need of repair, the agency refused to release –
- More than 75 inundation maps, showing what areas will be flooded following dam failure;
- A 2009 report issued by a panel of technical advisors regarding the condition of Amistad Dam (the release of which was remanded to the lower court for further consideration); and
- Much of the Emergency Action Plans for the dams, including the “Guidance for Determining the Emergency Level”; “Notifications and Emergency Service Contacts”; “Location and Vicinity Maps”; “Summary of People/Structures at Greatest Risk”; and “Reservoir Elevation Area-Capacity Data”.
“Basic emergency planning should not be treated as a state secret,” said Dinerstein, noting that the court had transformed a fairly narrow law enforcement exception from public disclosure into an extremely broad one without well-defined limits. “By the court’s incredibly deferential standards, virtually every federal agency could withhold maps, assessments and even phonebooks if an official can imagine a potential nefarious use for them. A vigilant public will lose access to much of the information needed to protect itself and to agitate for changes that prevent these man-made disasters from occurring.”