A Threat to the Public’s Right-to-Know

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Next to the computer monitor in my office is a button that reads, “Information is the Currency of Democracy.” I’m proud of that button. I’m proud that in the United States we place a premium on having an informed and educated public. And I’m proud that the federal government has encouraged use of the Internet to expand the public’s right-to-know, which is this century’s newest grand experiment in democracy.

What has traditionally been public information—whether it’s personal data from court documents or information on hazardous materials compiled by the Environmental Protection Agency—has become much more public when the government has placed it on the Internet. Nonprofits have used such information to identify predatory lending patterns, to spotlight chemical hazards in the community, to protect the health and safety of workers, to identify safety hazards at nuclear facilities, and in many other ways.

Right-to-know has been a powerful tool. In the environmental area, right-to-know laws require companies to report to the government on an array of different hazards and pollutants. The information is then made available to the public, frequently through the Internet. The laws give the public access to information on the amount and type of toxic chemicals released into the air and water, the possible consequences of chemical accidents at facilities, and specific information about the sources and location of companies that pollute air and water. One environmental right-to-know tool, the Toxics Release Inventory, has led to a nearly 50 percent drop in releases of toxic chemicals in areas where companies have been forced to disclose their releases.

The issue over public access has taken new urgency after the September 11 terrorist attacks with some people—oftentimes industry lobbyists who vigorously opposed public access before September 11—arguing that we should not be providing information that could be used by terrorists to do damage.

These fears warrant careful consideration and thoughtful response. While “information is the currency of democracy,” there is certainly a necessity to balance our right to access information with the nation’s security. Some information may both create risks and provide needed facts to ensure public safety and security.

In an open society we run enormous risks. Any individual or group of individuals can cause great damage. We try to protect against such damage, but the potential remains. One method of protection is to make ourselves as aware as we can of the risks and take steps to mitigate them. An alternative is to limit the free flow of information, which is how totalitarian societies operate. While security may improve, the spirit of civil society is lost. We can never let that happen here.

Of course there are legitimate reasons for removing information from government Web sites. Personally, I would be very concerned to find information providing the floor plans of nuclear facilities or maps providing the specific location of chemicals stored in water treatment or chemical plants. But most of the information that has been removed or limited is not of that type. Indeed, it is the type of information that nonprofits use to help family members better understand the dangers in their communities.

In January, the FBI’s National Infrastructure Protection Center warned that the Internet has made “arcane and seemingly isolated information quickly and easily retrievable.” Therefore, information useful for planning attacks on U.S. infrastructure “is being accessed from sites around the world,” the NIPC warned. The agency urged government and private Web site operators “to apply common sense in deciding what to publish on the Internet. The events of September 11 have shed new light on our security considerations.”

The underlying policy that guides public access—the Freedom of Information Act (FOIA)—has been severely constrained. Nonprofits throughout the country rely heavily on FOIA as a vehicle for obtaining information, holding government accountable, and other reasons. Attorney General John Ashcroft issued a memorandum on October 12 urging federal agencies to exercise greater caution in disclosing information requested under FOIA. This new policy supersedes a 1993 memorandum from then-Attorney General Janet Reno that promoted disclosure of government information under FOIA unless it was “reasonably foreseeable that disclosure would be harmful.” Ins contrast, Ashcroft advised, “When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis.”

Thus, the new message from the attorney general to the agencies is where possible withhold the information from disclosure, a fundamental reversal of past policies.

Regarding specific actions, the government has removed enormous amounts of previously public information from Web sites, requested the destruction of some documents at the 335 federal depository libraries, and restricted access to public reading rooms. The rate of removal does not seem to be slowing down. The scope of what has been removed is vast, and the removal has taken place without any policy guidance or careful vetting. In most agencies it is lower-level staff that are making the decision to remove the information, mostly taking a “better safe than sorry” approach. More than six months after the terrorist attacks, the government still has no official policy with regard to what it removes from Web sites or what it will restore.

Since 1989, OMB Watch has run RTK NET (www.rtknet.org), an online service providing access to various government databases, mostly dealing with pollution, such as the Toxics Release Inventory. RTK NET has been praised by presidents, the Environmental Protection Agency, community groups across the country, and many others. We have received many “thank you” notes from families who found RTK NET an easy way to learn about dangers that are present in their communities.

Yet, in the wake of the September 11 terrorist attacks we started to receive hostile, fearful communications about RTK NET.
As a nonprofit organization, we decided that our highest priority must be to serve the health and safety needs of people, particularly those without the resources to investigate and discover that they are living in a dangerous area. After all, if terrorists really want information, they will find a way to get it.

Hiding or withholding information about the possibilities of a chemical plant explosion doesn’t make us safer—improved site security, using safer chemical substitutes, and reducing the volume of dangerous chemicals on site makes us safer. Right-to-know is an essential tool for nonprofits to help the community safeguard itself against terrorism—or “routine” accidents.

Like a snowball gaining momentum, the limitations on public access resulting from September 11 will have implications for the entire nonprofit sector. The nonprofit community plays a lead role in obtaining, analyzing, and disseminating government information in ways that are understandable to the constituencies they serve. When federal or state governments are given the opportunity to reduce transparency, it affects us all. It makes it harder to get information about program effectiveness, gaps in services, holding institutions accountable, or a host of other critically important issues.

The aftermath of September 11 has forced many nonprofits to defend the public’s right-to-know. But it can also be an opportunity to advance public access, to capitalize on the potential of the Internet. The terrorist attacks have raised questions about a core democratic tenet—the public’s right-to-know—and the principle has stood up to questioning. As a sector we should insist on improving disclosure. In an open society, we the people need more and better information, not less.

Vast amounts of previously public information have been removed from federal and state government Web sites, scattered among increasingly controlled and restricted reading rooms, and in some cases destroyed.

Contradictions abound. In some cases the removed information is available online elsewhere. In other cases one agency starts posting information to demonstrate that security is improving while another takes it down. In every case, whether it’s parents checking on weaknesses in pipelines near their children’s daycare centers or firefighters downloading maps of chemical sites as they head toward a blaze, the public had been using the information to protect lives and safety. Those taking down the information have failed to find the proper threshold between providing that benefit and truly imperiling security.

Here are some examples of what has been removed from federal and state Web sites. A full list is at (www.ombwatch.org/article/articleview/213/1/1).

• EPA discontinued providing Risk Management Plans, which provide information about worst-case scenarios if a major disaster occurred at a chemical plant. (Industry lobbyists have lobbied for years to limit or shut down public access to information about hazardous chemicals being used in communities. The RMP executive summaries are still publicly available through OMB Watch’s RTK NET.)
• The Federal Energy Regulatory Commission has removed tens of thousands of documents from the Internet and from public reading rooms, cutting off access to detailed information on hydropower plants, natural gas and oil pipelines, electric transmission lines and other “critical infrastructure.” The agency is considering requiring recipients of information to register to obtain passwords, personal identification numbers or digital signatures to limit distribution. For certain information, the agency has talked about requiring nondisclosure agreements. (Residents use inspection records of pipelines to ensure they are safe. In Washington, some children playing around an unchecked pipeline died from an explosion.)
• The Federal Aviation Administration has removed data from its Web site on enforcement actions, which is used to identify security breaches at airports. (Logan Airport in Boston, Massachusetts has done the opposite. They are sharing information about security issues to assure the public that security is improving.)

• The Nuclear Regulatory Commission shut down its entire Web site in early October.
• Pennsylvania removed environmental information on topics such as water and air quality, as well as mining operations and soil conditions, from its Web site.
• New York instructed state agencies through a January 17, 2002, confidential memo to remove all “sensitive” information from public access except where required by law and to provide logs of anyone who accessed such information over the last year.
• New Jersey has removed chemical information from its Web site, including information on 30,000 private sector facilities that must report on chemical storage, including quantities and types of containers, for about 1,000 to 1,200 different chemicals.
• Florida is withholding public access to information on crop dusters and certain driver’s license information.
Information Destruction at Federal Depository Libraries
On October 12, the Federal Depository Libraries received a request, on behalf of the U.S. Geological Survey’s associate director for water, to destroy all copies of a CD-ROM publication: Source area characteristics of large public surface water supplies. This CD-ROM provides information about water sources, such as dams and reservoirs, including maps of their locations. There have been past requests to recall various information products, but only when the information was incorrect or outdated, never because of a policy decision to keep it secret.

Although public reading rooms are no substitute for the Internet, there are changes being made to procedures for using the reading rooms that limit access. For example, in many agencies, you now need to be “cleared” to enter the building. Information is not in all reading rooms. Some agencies have designated that only selected reading rooms will have certain information, making it increasingly difficult for the public to obtain the information.

Gary Bass is executive director of OMB Watch, located in Washington, D.C.