Michigan Bill Seeks FOIA Exemption for Energy Infrastructure, Cybersecurity

The bill would allow companies to share information with state regulators about cybersecurity and critical infrastructure issues without fear that the documents would become public, which would make companies more comfortable with sharing information with authorities.

by Kathleen Gray, Detroit Free Press / January 27, 2016
The state capitol building in Lansing, Mich. e.Republic/Jessica Mulholland

(TNS) -- The Flint water crisis loomed large over a hearing Tuesday on a bill that would provide an exemption from Freedom of Information Act laws for some public documents surrounding cyber security and critical energy infrastructure.

“We’re trying to strike a balance here to protect against people with evil intent,” said the bill’s sponsor state Rep. Kurt Heise, R-Plymouth.

The bill would allow companies to share information with state regulators about cyber security and critical energy infrastructure issues without fear that the documents would become public. That’s important, said State Police Inspector Matt Bolger, for companies who want to alert authorities about hacking attempts without that information getting out to the public and spooking shareholders.

“Cyber security is new and upcoming,” he said. “Any time there is an incident, like in Ferguson or Baltimore or even Flint, there is a cyber component. Hurley Hospital got hit (with a hacking attempt) in response to this Flint water crisis. Somebody across the other end of the world says let’s hit them.”

A FOIA exemption for information like that would make companies more comfortable with sharing information with authorities, he said.

The bill would not exempt information about compliance with state safety and environmental standards, Heise said.

But others said the FOIA exemption would act as a shield for companies behaving badly. Opponents testified about the 2010 Enbridge oil spill into the Kalamazoo River, the possibility of problems with Pipeline 5 — an aging pipeline under the Straits of Mackinac — and, more recently, the ongoing controversy over lead leaching from pipes into homes in Flint.

"We come at this from the perspective that transparency is really important to protect our natural resources and the public health,” said Charlotte Jameson, policy manager for the League of Conservation Voters. “There’s a lot of attention on Flint, and rightfully so, as a prime example of Michigan’s failing record on transparency.”

State Rep. Ken. Goike, R-Ray Township, said he’s concerned about the impact on property owners who have pipelines running across their property.

"My biggest crutch is that these pipelines are going across private property that’s been taken from condemnation and these people don’t have access to that information,” he said. “I don’t believe you’re proactive enough in your communications."

But John Griffin, of the American Petroleum Institute, said much of that information is already publicly available. He said he sees no practical need for anyone to be able to access blueprints or schematics that are shared with governmental bodies.

The bill sets up a process to appeal a FOIA denial on cyber security or critical energy requests. The first request would go the appropriate agency, such as the state Department of Environmental Quality. If the FOIA request is denied, it then goes to the state Office of Energy. And if it’s denied there, the person requesting the information can appeal the decision in their county Circuit Court.

Open government advocates, including the Michigan Press Association and the Coalition for Open Government, opposed the bill, saying it was a step backward.

“It clearly favors operators of so-called critical infrastructure businesses. What is proposed allows the proverbial fox to guard the chicken house," said Jane Briggs Bunting, of the Open Government coalition in a letter to the committee. "The ongoing temptation, post-9/11, is to close off all information. It's been done repeatedly and represents a grave threat to the ideals of a democracy and republic.”

The bill — HB 4540 — had been languishing since it was introduced last May, unable to get enough support to pass in the House Oversight committee and was transferred to the House Natural Resources Committee. No vote was taken on the bill Tuesday, but it could be considered again in the next few weeks.

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