Appeals Court Radically Expands FOIA 'Safety' Exemption

A federal appeals court created a sweeping and dangerous precedent January 22, 2014, when it ruled the U.S. public had no right to know whether it is endangered by failures of federal dam safety agencies to do their jobs.

A panel of the D.C. Appeals Court — consisting entirely of GOP-appointed judges — ruled that exemption 7 of the Freedom of Information Act (FOIA) was not limited to records of "law enforcement" agencies, as the law states.

The radical ruling — if it stands — could allow federal agencies to withhold from disclosure almost any information showing federal failure to protect the public from infrastructure dangers. That would put the public at greater risk from pipeline explosions, fertilizer explosions, floods, toxic chemical releases, power blackouts, drinking water contamination, sewage discharges, or rail accidents, to list only a few examples.

Exemption 7 of FOIA, as intended by Congress, was focused on protecting confidential informants during ongoing investigations of agencies with police powers. For example, it might allow the FBI to withhold the identity of a gangster who was cooperating with prosecutors — in order to keep him from being murdered.

Since the 9/11 attacks, however, various federal agencies have withheld many kinds of infrastructure information, justifying the secrecy with a part of exemption 7 of FOIA, which says law enforcement records can only be withheld when their release "could reasonably be expected to endanger the life or physical safety of any individual (among other conditions)."

Claims of the "safety" justification under exemption 7 had hardly ever been challenged until now. The only previous challenge was the 2003 case of Living Rivers v. Bureau of Reclamation. In that case, a federal district judge in Salt Lake City ruled that the BuRec could withhold inundation maps showing the consequences of a failure of the Glen Canyon Dam in Arizona. That judge accepted BuRec's claim that terrorists could use the information, but it had little precedential value because it was never appealed.

The more recent ruling by the U.S. Court of Appeals for the District of Columbia arose in the case of Public Employees for Environmental Responsibility v. U.S. Section, International Boundary and Water Commission. The IBWC manages two dams on the U.S.-Mexico border, controlling the Rio Grande, the Amistad Dam and the Falcon Dam, as well as various levees.

PEER was representing whistleblower Robert McCarthy, who before the Merit System Protection Board was challenging his dismissal in 2009 as general counsel of the IBWC. He was fired three days after he reported serious allegations of waste, fraud, and abuse at the IBWC. Those allegations included charges that the two dams were in such poor condition that they endangered the public.

PEER had filed a FOIA request for dam safety studies, emergency action plans, and inundation maps, which IBWC denied. A district court and the appeals court upheld this denial.

The DC appeals court decision was made by a three-judge panel consisting of David B. Sentelle (appointed by President Reagan), A. Raymond Randolph (appointed by President George H.W. Bush), and Brett M. Kavanaugh (appointed by President George W. Bush). This appeals court was the focus of a recent flap in the Senate, because conservative GOP-appointed judges held a majority and Senate Republicans were blocking Obama appointees to fill vacant seats.

PEER has not yet decided whether it will seek an en banc rehearing of the case by the entire appeals court.

The "terrorist threat" justification for withholding dam safety information is considered specious by disclosure advocates. The fact that crumbly dams could endanger lives and property downstream is hardly a secret to start with, since in most cases it has been previously disclosed by the federal government and known by the public for years or decades. Keeping the information out of the public eye rather serves the political purpose of reducing pressure on responsible agencies (or private dam owners) to make the dams safe — thus putting the public in much greater danger. In most cases, the probability of terrorists succeeding in destroying a dam is infinitesimal — while the probability of dam failure in a heavy rain is far greater.

The law allows agencies the option of disclosing the information anyway, despite the availability of an exemption, and the Obama administration has supposedly told agencies to err on the side of disclosure. Agencies have often not taken the president's directives seriously.

• "Ruling Vastly Expands Official Secrecy on Infrastructure," Release of January 24, 2014, Public Employees for Environmental Responsibility.
• "Safety of Rio Grande Dams in Question," Release of January 31, 2011, Public Employees for Environmental Responsibility.
• "'Securing' the Public with Secrets," News Media & the Law (Reporters Committee for Freedom of the Press), Fall 2003, by Rebecca Daugherty.
• "Obama Judicial Nominees Poised To Join Powerful D.C. Circuit Court of Appeals," Washington Post, December 8, 2013, by Timothy M. Phelps.
• Reporters' Toolbox on Dams and Levees, SEJ WatchDog, October 23, 2013, by Joseph A. Davis.