The leading example is the Environmental Protection Agency's right-to-know database. In the late '80s, Congress passed the Community Right to Know Act, based on the idea that communities should have access to accurate and current information about locally stored chemicals. That statute was later expanded by provisions included in the updated version of the Clean Air Act passed in 1990.
Those provisions required the EPA to publicly disseminate information about worst-case hazard scenarios so that communities would be aware of local risks and could make emergency plans. Last year, after considering the best ways to disseminate the data, the EPA announced it would make its database of worst-case scenarios available on the Internet.
The FBI and other law enforcement agencies argued against the plan, warning that widespread disclosure could provide invaluable information to terrorists, helping them pinpoint communities that might be vulnerable. This claim caught the ear of Rep. Tom Bliley, R-Va., chairman of the House Commerce Committee. Bliley expressed his concerns in a letter to EPA Administrator Carol Browner.
"While I strongly support public access to information collected by EPA," he wrote, "we must strike the proper balance between public access and public safety when considering options for disseminating information of such a highly sensitive nature."
FOIA and the Net
While the EPA reversed its earlier decision to post the data, law enforcement critics feared that a public interest group would get the information under the Freedom of Information Act (FOIA) and post it itself. This news immediately led Bliley to announce he would explore the possibility of amending FOIA to prohibit the disclosure.
After some review, Bliley indicated in a letter to Jerry Berman, executive director of the Center for Democracy and Technology, one of a number of public interest groups critical of the EPA pullback, that he would not offer an amendment. He said this was in part because he understood that the Justice Department had told the EPA that it could legally refuse to provide the information in a format that "could not be copied, duplicated, or posted on the Internet." He asked interested groups to comment on the legality of releasing the data on CD-ROM.
When the groups responded in a joint letter, the answer to Bliley's query was an emphatic "no."
"The EPA will be receiving the WCS (worst-case scenario) data in an electronic format and store it in a central database," the letter read. "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."
The letter noted that since the 1996 Electronic Freedom of Information Act amendments, agencies were required to provide records in any format chosen by the requester as long as such a format was technically feasible, as was clearly the case here.
Think Twice
While the law enforcement community apparently has no trouble allowing the information to be made public in some form, prohibiting Internet disclosure because of the nature of the dissemination is a decision government should not make lightly.
The public interest groups said as much in their letter. "Any proposal to limit the forms or formats in which WCS information would be available to the public would set a terrible precedent," they wrote. "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."
The EPA controversy is the most visible instance in which government has warned that too much information poses a danger, but it is not the only example. The Department of Defense has led the way within the federal government in putting information on Web sites. In a reasonably decentralized department, there are several thousand different Web sites.
But Steve Aftergood, editor of Secrecy & Government Bulletin, a project of the Federation of American Scientists, recently found that dissemination policies at various Department of Defense Web sites had been cut. He noted that several sites previously open to the public have been closed to anyone without a password. When he attempted to visit one site, he received a message that access was denied and a further explanation that, while the site contained no sensitive unclassified information, the sheer breadth of information available there could be potentially dangerous in the wrong hands.
Affairs of States
On the state level, the dangers of too much dissemination crop up frequently where personal information is concerned, and may well exist with certain databases containing confidential business information. Still, the general principles are the same. Agencies need to consider the inherent public nature of the information.
If the information is not exempt in paper form, it probably should not be exempt in electronic form. It should be the rare category of public information that is public on paper but confidential in digital form. Before making the decision not to disseminate information because of its format, government must articulate a convincing argument that the dangers posed by such dissemination outweigh the principles on which access policies are based.
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Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open-government laws and information-policy issues. Email
