ARCHIVED: Reply Letter re Opposition to New FOIA Exemption for EPA's Worst Case Scenarios Data

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March 5, 1999

The Honorable Thomas Bliley
Chairman House Committee on Commerce
United States House of Representatives
Washington, DC 20515

Dear Chairman Bliley,

Thank you for the February 24, 1999 response to our letter outlining our concerns with proposals to limit public access to information concerning accidents at chemical plants (EPA’s unclassified Worst Case Scenarios data). We are pleased to learn from your letter that you do not intend to amend the Freedom of Information Act (FOIA) and that you have not "advocated denying public access to" the Worst Case Scenario (WCS) data. However, we remain troubled by the possibility of limiting or denying access to publicly available information in certain forms or formats and we urge you to hold public hearings on any specific proposals to do so.

In your letter, you specifically asked us to respond to EPA’s suggestion that a CD-ROM that "could not be copied, duplicated, or posted on the Internet" may be a legally and technically-feasible way of providing the WCS information to FOIA requesters. Although the technology to create a CD-ROM whose contents cannot be copied is not currently in the commercial marketplace and would need to be investigated in order to make a final judgement, it is our belief that such a CD-ROM would not satisfy all FOIA requests for the following three distinct reasons:

1. FOIA allows the requester to choose the format

The Electronic Freedom of Information Act (EFOIA) amendments, passed overwhelmingly by Congress in 1996, state that when responding to a FOIA request, "an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain records in forms or formats that are reproducible for purposes of this section." 5 U.S.C. Sec. 552(a)(3)(B)

The courts have held that the only exception to this clause is when an agency can prove that the existing record form could not be readily reproduced. Chamberlain v. U.S. Dep't of Justice, 957 F.Supp. 292, 296 (D.D.C.) (certain "visicorder charts" could be made available for review at FBI HQ due to exceptional fact that they might be damaged if photocopied), aff'd, 124 F.3d 1309 (D.C. Cir. 1997) (unpublished table decisions) (summary affirmance).

The EPA will be receiving the WCS data in an electronic format and store it in a central database. Therefore, the information will be available in readily reproducible forms and formats other than the CD-ROM and must be made available to FOIA requesters.

2. FOIA does not permit conditioned disclosure

FOIA "speaks in terms of disclosure and nondisclosure. It ordinarily does not recognize degrees of disclosure, such as permitting viewing, but not copying, of documents." Julian v. U.S. Dep't of Justice, 806 F.2d 1411, 1419 n. 7 (9th Cir. 1986), aff'd, 486 U.S. 1 (1988); Berry v. Dep't of Justice, 733 F.2d 1343, 1355 n. 19 (9th Cir. 1984). Similarly, providing exempt information to a requester while limiting his ability to further disclose it through a protective order is "not authorized by FOIA." Schiffer v. FBI, 78 F.3d 1405, 1410 (9th Cir. 1996) (reversing conditional disclosure order of district court).

Part of the reasoning is that FOIA mandates disclosure to "any person." If records or information are not exempt and must be disclosed, any person is entitled to them. The main exceptions to this principle are for Privacy Act records and confidential business information, neither of which applies in this case.

It should also be noted that copying, duplicating, or posting restrictions on the WCS data would also raise significant copyright issues. Current law does not allow the government to hold copyright or place copyright-like restrictions on public information. Copyright law clearly prohibits protections "for any work of the United States Government" 17 USC 105. Yet, perhaps more applicable to this case, the Paperwork Reduction Act prevents agencies from restricting or regulating "the use, resale, or redissemination of public information by the public" 44 USC 3506(d)(4)(B). Putting aside the technological questions for the moment, dissemination of WCS information in a non-duplicable format such as a secure CD-ROM would be a clear restriction on the public's ability to use and redisseminate this public information. Such restrictions would violate existing law.

3. The national security exemption of FOIA does not apply to this unclassified information

FOIA does allow for exemptions when the data is "in the interest of national defense or foreign policy" 5 USC 552(b)(1). By passing the Clean Air Act of 1990, Congress sought to promote reduction of the risks of deaths and injuries from accidents at chemical plants, determining that the benefits of WCS information would outweigh harm to national security.

Section 112(r)(7)(B)(iii) of the Clean Air Act states that the WCS information, "shall also be submitted to the Chemical Safety and Hazard Investigation Board, to the State in which the stationary source is located, and to any local agency or entity having responsibility for planning for or responding to accidental releases which may occur at such source and shall be available to the public under section 114(c). Section 114(c) requires "any records, reports or information...be available to the public" except for information (other than emissions data) that is considered a trade secret.

Given the Clean Air Act is clear that the WCS information is not classified for national security purposes, a FOIA exemption would not apply. Moreover, there is compelling reasons to make such information available. In the wake of the recent chemical disaster in Allentown, PA, where citizens were killed and communities were evacuated, there can be no doubt that such health hazards are posed by the threat of chemical accidents and are more real than the potential threat of terrorist attack. WCS data give communities and workers the ability to plan, compare and push for measures to avert such accidental disasters. In fact, in passing the EFOIA amendments, Congress pointed to FOIA’s ability to contribute to efforts to reduce "serious health hazards" like these.

Lastly, there is no data to suggest that disclosure of WCS information might lead to a terrorist attack on a plant. In fact, the only in depth study pointing out potential, but unproven, risks has been called into question by a contractor that oversaw the study and is under review by the General Accounting Office. Limiting the availability and utility of WCS would be contrary to the intent of FOIA and the Clean Air Act.

As we mentioned in our February 9, 1999 letter, any proposal to limit the forms or formats in which WCS information would be available to the public would set a terrible precedent. Such a precedent could undermine the intent and success of FOIA in ensuring public health and safety, by encouraging members of Congress to carve out exceptions to the right of the public to use FOIA for vital public information. Therefore, we urge you once again not to put forward any such proposal. If, however, legislation is introduced regarding the availability of WCS information, we ask you to ensure that there is a full hearing with input from all of the affected communities including public interest groups, journalists and other frequent FOIA requesters.

Sincerely,

Robert L. Oakley
American Association of Law Libraries
Washington Affairs Representative

Laura Murphy
American Civil Liberties Union
Director, Washington Office

Jerry Berman
Center for Democracy and Technology
Executive Director

Stanton McCandlish
Electronic Frontier Foundation
Program Director

Gary Bass
OMB Watch
Executive Director

Cc: American Society of Newspaper Editors

Chairman Steve Horn,
House Subcommittee on Government Management, Information and Technology

Representative Robert Goodlatte, Internet Caucus Co-Chair
Representative Rick Boucher, Internet Caucus Co-Chair
Senator Conrad Burns, Internet Caucus Co-Chair
Senator Patrick Leahy, Internet Caucus Co-Chair