On January 16, 2002, the Federal Energy Regulatory Commission (FERC) released a statement seeking "responses to questions on the best way to handle the confidentiality of certain documents as it weighs its regulatory responsibility against the need to protect against attacks on the nation's critical energy infrastructure facilities." For this purpose, FERC issued a Notice of Inquiry and Guidance for Filings in the Interim (NOI) seeking public input, and OMB Watch submitted the following comments. To: The Federal Energy Regulatory Commission From: Sean Moulton, OMB Watch Dockets: RM02-4-000 and PL02-1-000 Re: Removal of Public Access to Critical Energy Infrastructure Information Date: March 25, 2002 OMB Watch appreciates the opportunity to comment on the above-referenced notice of inquiry. OMB Watch is a nonprofit research and advocacy organization focused on strengthening government accountability and citizen participation. Since 1985 we have actively worked to improve public access to government information. We have worked on general policy matters, such as the Paperwork Reduction Act and OMB Circular A-130, and specific ways of promoting the public’s right-to-know, such as providing public access to government data through RTK NET (www.rtknet.org), working with EPA to improve its online access to data, and commenting on FirstGov, the government’s web portal. OMB Watch understands that in light of the terrorist attacks on September 11th public agencies face difficult questions and challenges. Among these are questions about possibly restricting public access to certain information to better protect the country. The Federal Energy Regulatory Commission (FERC) is concerned about what it terms “critical energy infrastructure information” (CEII). Generally speaking CEII seems to be documents containing specifications of energy facilities licensed or certificated by the Commission. The CEII can only be categorized generally because in a troubling Catch-22 twist to seeking public comments FERC has made the appendix, which lists the information being considered for this new restricted status, not publicly available. In order to receive the appendix and be better informed as to this process, individuals are required to sign an agreement of non-disclosure. Additionally, any “public” comments that discuss the appendix or include references to it would have to be submitted as “confidential.” Since OMB Watch wants our comments to be public we have elected to not review the appendix, even though it clearly contains important information to understanding the direction and scope of FERCs efforts. In declining to view the appendix we are at a significant disadvantage in fully crafting constructive comments on the notice. This development undermines the credibility of the entire public input process in which FERC claims to be engaging. On January 16, 2002 FERC issued a notice of inquiry to elicit comments and input on (1) whether there are any statutory or regulatory impediments to FERC protecting CEII; (2) what is the definition of CEII; (3) what the relevance of a requestor's status and need for information, the role of non-disclosure agreements and limitations on the use of information should be for receiving CEII. However, prior to this notice FERC already removed previously public documents containing CEII from easy public access based a FERC policy statement in Docket No. PL02-1-000 on October 11, 2001 (66 FR 52917, October 18, 2001). Yet, in this January 16th notice of inquiry, months later, the entire first section of questions explore whether there are any statutory or regulatory barriers to FERC restricting access to CEII. It is extremely disconcerting that FERC has already begun a course of action, even while it debates whether or not it has the legal authority to do so. Indeed, OMB Watch contends that FERC does not posses the legal authority to restrict information or alter the process of disseminating information in the manner that it is proposing. Currently, the public has a very strong right-to-know established by Congress with the passage of the Freedom of Information Act (FOIA). Under FOIA federal agencies must make all records requested in writing available to any requester unless they fall under one (or more) of nine exemptions. And while the FERC notice of inquiry does discuss possible use of several of the exemptions to protect CEII, it continually proposes handling requests for CEII “outside of FOIA.” This raises serious separation of powers issues where an executive branch agency is establishing regulations that would essentially legislate changes to established laws. The creation of new exemption categories for FOIA should be left to Congress. OMB Watch urges FERC not to regulate in this area and await clarification from Congress on how to handle CEII. The notice of inquiry also contained a troubling message to the regulated community in the section “V. Guidance for Filing in the Interim.” The notice informs companies with facilities that could be the target of terrorist attacks that they may voluntarily seek confidential treatment for their filings if “in their opinion” they contain CEII. The section does acknowledge that this guidance may “seem to be jumping ahead of the debate” since this notice is only now initiating the debate on what constitutes CEII. There really isn’t any question on this point, FERC is clearly allowing companies to “jump ahead” of its own CEII process. With no established CEII definition, no classification as to what facilities could be terrorist targets, and no procedures to evaluate company claims, FERC is giving companies free reign over public disclosure of its information. Even in cases where regulatory requirements mandate public release of the information, FERC has committed to maintaining any requested non-public status for information while it considers requests to waive the relevant regulation. Additionally, the notice of inquiry repeatedly states that FERC is not attempting “to alter in any way the public's right to access documents that they need to participate in a meaningful way in Commission proceedings.” But that statement is a serious misrepresentation of the public’s information rights. The public has a right to any information it wants and requests, barring several specific types of information that are exempt from requests. FERC’s statement attempts to recast this right to information with an additional burden to prove need for the information. Without any acknowledgment, indeed a denial of its actions, FERC is altering the fundamental tenets of right-to-know. The course of action that FERC’s notice of inquiry proposes, and which the agency is indeed already implementing, is inappropriate and extremely troubling. FERC, without proper authority, is proposing to curtail the legally specified rights of U.S. citizens to all non-restricted information. In the haste and commotion to respond to the heinous attacks of September 11th and proactively protect the U.S from future attacks FERC goes too far. FERC is hurriedly sacrificing citizen’s rights without even a clear understanding that its actions are necessary or that the results will be a safer country. It is clear that if FERC continues with its proposed changes that citizens and state regulators will not be able to obtain information that they routinely require and that they will not be able to use information in public proceedings, as they have historically done. FERC’s restrictive approach to CEII does not consider balancing the security benefits of protecting this information against the loss to community health and safety efforts. Indeed, nowhere in the notice of inquiry does FERC clearly acknowledge the important role that this information can play in improving the health and safety of a community. The original purpose of making much of this information available to the public was to allow concerned citizens access to information on the potential risks to workers, families and the entire community from nearby energy facilities. Many of these facilities pose some inherent risk to nearby communities, even baring terrorist attacks, just from mundane and “typical” accidents. A more responsible approach to questions regarding information restriction for security reasons would include a process to evaluate the usefulness and need for the information by those seeking to address and improve community health and safety. Once the health & safety importance of the information is better understood FERC could more readily explore striking a balance between the two concerns—terrorist security and traditional community health & safety. OMB Watch urges the FERC to cease its efforts to alter its regulations to restrict access to critical energy infrastructure information. While the concerns and questions FERC raises may be valid, they would be more appropriately handled by Congress, rather than a murky regulatory process with restricted information and actions prior to full public involvement.