33 ELR 10978 | Environmental Law Reporter | copyright © 2003 | All rights reserved

Where the Streets Have No Name: The Collision of Environmental Law and Information Policy in the Age of Terrorism

The authors received their juris doctor degrees from the University of Maryland School of Law in May 2003. They spent their third year as student attorneys in the University of Maryland School of Law Environmental Law Clinic where they had the privilege of representing the Aberdeen Proving Ground Superfund Citizens Coalition in its efforts to obtain information from U.S. Arrny officials at the base.

[33 ELR 10978]

Introduction

Perchlorate, a chemical component of rocket-fuel that is used in explosives, was found in drinking water wells in the city of Aberdeen, Maryland, late last year.¹ The chemical interferes with the body's uptake of iodine, disrupting thyroid function. Low thyroid levels interfere with brain development in fetuses, infants, and children.² Aberdeen's small but vigilant band of environmental activists were alarmed, although no one doubted the source of the contamination. Aberdeen abuts the 72,500-acre U.S. Army Aberdeen Proving Ground (APG), one of the largest weapons proving grounds in the country.³

Given APG's size and prominence, it is surprising that last year's perchlorate discovery was only the second time chemicals from the base had been found in municipal water supplies.⁴ In the 1990s, trichloroethane was found in water supplies derived from the Perryman well fields.⁵ The Army agreed almost immediately to erect a $ 2.2 million groundwater treatment plant near Perryman,⁶ and most citizen activists expected similarly rapid action to clean up the perchlorate. This happy ending was not to be.

Preoccupied and emboldened by the war in Iraq, impatient with what they believe are unreasonably rigorous environmental regulations, and intent on maintaining the security of military installations by keeping sensitive information from the public, the Pentagon's top leadership has refused to address perchlorate contamination, not just at APG but across the country.⁷ The Army has managed to block the release of a draft U.S. Environmental Protection Agency (EPA) health assessment concluding that the drinking water standard for perchlorate should be revised downward from 32 parts per billion (ppb) to 1 ppb in order to protect human health.⁸ At APG, the Army has withheld information about the location of the plume vis-a-vis drinking water wells and the rate of pumping from potentially affected sources.⁹ Military representatives assert that national security is the justification for the secrecy, but citizens refer to the new rules as "censorship" and angrily demand full and immediate disclosure.¹⁰

Few Americans would disagree with the notion that the tragic events that began on September 11, 2001, should change the equation for decisions to disclose information that could prove useful to terrorists. Most people would probably agree in the abstract that they would rather know less about what the military or the police are doing if disclosure might make them less secure. Yet as we overcome the sense of siege produced by those cataclysmic events, dilemmas like the Aberdeen situation test the military and EPA bureaucracies as well as the law. So, for example, while it is undoubtedly true that disclosing the precise location of drinking water wells makes it easier for terrorists to poison them, the citizens' interest in monitoring the movement of the perchlorate plume toward those wells is an equally compelling consideration. Unfortunately, there is no neutral arena for balancing the government's interest in secrecy against the public's right-to-know that is guaranteed by law to the people of Aberdeen and millions of others across the nation living on, next to, or near a U.S. military installation. The law's development has lagged behind the escalating importance of these issues, and in too many instances, government officials are simply ignoring the law.

This Article argues that the United States and its citizens are paying for the secrecy of the U.S. military regarding substantial threats to our environmental and public health, and this price is much too high. The military's unrestrained urge to "go dark," as its covert operatives might say, will inevitably undermine public trust in its credibility and integrity, especially because the military's environmental track record is mixed, its good faith suspect, and the stakes for public health and the environment very high. Secrecy will also make it much easier for the Pentagon to avoid acting to protect [33 ELR 10979] human health and the environment, in effect nullifying laws designed to achieve goals as compelling as eliminating the terrorist threat. To avoid this unacceptable damage, the country must accept that we cannot classify our way out of danger, and must instead balance our desire to shut terrorists out against our need to ensure government accountability and foster the ability of citizens to participate in democratic decisions that affect them.

This Article's solution to this clash of competing interests in security and the public's right-to-know is that any decision as to whether information should be withheld must balance the reasonable possibility that releasing information poses a threat to local or national security against the benefits of disclosure to the public. The balancing of these competing interests is intended to ensure that decisionmakers explicitly identify the benefits that can be gained from either disclosure or keeping the information secret.

In applying this balancing test, decisionmakers should consider such factors as whether the information is already widely available to the public, whether the information directly reveals a potential vulnerability or weakness in security, and the specific benefits that disclosure gives to the citizens requesting the information beyond the general benefits traditionally associated with open government.

To achieve a fair result that upholds both of these important values, our test is premised on an affirmative demonstration by the government agency seeking to withhold information that doing so advances a legitimate security measure. At the same time, the test rests upon the fundamental notion that the public has a right-to-know—and need not assume the burden of demonstrating a specific need-to-know—with respect to all but the most sensitive information.

This Article begins with the Aberdeen case study, explaining the environmental history of APG, including the relationship between the citizens, the Army, and EPA. The case study describes the dispute over information disclosure from September 2002 to July 2003,¹¹ exploring the best reasoning of both sides regarding why the disputed information should be either withheld or disclosed. The case study concludes with an analysis of why the events at APG are a portent of things to come at other bases across the country.

The Article then discusses the state of the law governing such circumstances, beginning with the public participation provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹² and then considering how such disputes that are not addressed by CERCLA are likely to be processed under the Freedom of Information Act (FOIA).¹³ We conclude with a discussion of our proposed solution and an application of that solution to the Aberdeen case study example. Through this final exercise, we hope to restore common sense and highlight the value of public disclosure in the context of environmental cleanups.

Case Study: Trouble at APG

Environmental History of the Base

Known as "The Home of Army Ordnance," APG opened shortly after World War I to test and develop various munitions and chemical weapons, a mission that continues today.¹⁴ Initially, it was an ideal site, isolated among sparsely populated farmland within a two-hour drive of the nation's capital. However, as Maryland grew, so did the city of Aberdeen, and now the base is surrounded by suburban neighborhoods.

While APG's primary function is weapons testing, the base also provides on-site housing for approximately 2,700 military families.¹⁵ There is even a public golf course on the facility.¹⁶ Thus, APG is what could be characterized as a "mixed use" military property, combining extremely sensitive firing ranges still used to test weapons; sites where past contamination poses an imminent risk to public health; housing for people of all ages; and publicly accessible recreational locations. As a result of its housing and recreational functions, access to the base is generally achieved by displaying a driver's license to young soldiers posted at its gates, and searches of incoming vehicles are sporadic.

The base is heavily contaminated with chemical agents, many of which are byproducts of past weapons testing.¹⁷ Spent and unexploded ordnance are routinely found off base and in the nearby Gunpowder River.¹⁸ Two sites on the base were listed on the Superfund Program's national priorities list (NPL) more than 10 years ago.¹⁹ One site was used to test chemical agent munitions, contaminating more than 13,000 acres with large amounts of napalm, white phosphorus, and chemical agents.²⁰ The other site covers 17,000 acres and includes a 20-acre landfill; contaminated property described tersely as a "disposal area"; a white phosphorus munitions burial site; firing ranges; a fire training area; and testing laboratories.²¹ Dealing with past disposal problems would be hard enough, but APG remains an active test facility.²²

In 1989, the federal government prosecuted civilian employees at the base for illegally storing and disposing hazardous wastes.²³ Criminal convictions in that case were [33 ELR 10980] among the first in the country under federal environmental laws and sent a shock wave through the ranks of civilian and military personnel responsible for cleaning up active and inactive military bases throughout the country.²⁴ Two of the defendants were convicted of illegally storing and disposing of leaking containers of dimethyl polysulfide, a component used to make chemical weapons.²⁵ The roof of the building used to store this chemical had collapsed, smashing several of the containers and causing the chemical to leak into the floor drains.²⁶ The defendants had been warned about the roof by inspectors prior to the collapse.²⁷ Other defendants had dumped various chemicals into sumps for unpermitted "treatment," or had illegally operated an incinerator to destroy other chemicals.²⁸

In its heyday, APG spent as much as $ 66 million annually on environmental "restoration."²⁹ It currently spends approximately $ 25 million. Even now, when the budgets for such activities have declined precipitously, the military was authorized to spend $ 1.9 billion last year for environmental restoration.³⁰ Aberdeen is the third most expensive base cleanup in the nation, with the Pentagon estimating that $ 741 million is required to finish remedial activities at the base.³¹

Community Involvement at APG

Largely because of the high profile it achieved from these events, APG is also a model for citizen involvement in monitoring cleanup activities. The Aberdeen Proving Ground Superfund Citizens Coalition (APGSCC) received an EPA Technical Assistance Grant (TAG) in 1994, funding activities representing the very kind of community involvement that CERCLA was intended to foster.³² TAG grants, which are "intended to promote involvement in decisions on site-specific cleanup strategies under Superfund,"³³ fund technical assistance for up to $ 50,000 and are available to groups that may be affected by a release from a facility listed on the NPL.³⁴ Therefore, CERCLA takes the concept of information disclosure a step further than most environmental statutes by supporting and funding efforts to develop informed community participation.³⁵ The statute includes provisions that not only require information disclosure but also require community participation³⁶ and information exchange with technical experts.³⁷

APGSCC used this money to hire University of Maryland Medical School toxicologists, who offered APGSCC the unusual opportunity not only to keep up with the findings of the Army's technical experts, but to really understand the nature and scope of the environmental threats to public health.³⁸ Using CERCLA's community participation and disclosure provisions, APGSCC reviewed the full range of documentation that supported remedial activities at the base and provided lengthy written comments. As a result, APGSCC had a defined and influential role in monitoring and enforcing the environmental cleanup. Citizens knew who to call when they needed documents for their technical experts to review. They participated actively in monthly meetings of the APG Restoration Advisory Board (RAB), a group established and supported by the Army to provide a forum for public involvement with base cleanup activities.

The RAB is the product of U.S. Department of Defense (DOD) efforts to respond to CERCLA's disclosure and public participation requirements. In 1975, the DOD established the Installation Remediation Program to address its hazardous waste problems.³⁹ In 1987, Executive Order No. 12580⁴⁰ directed the Secretary of Defense to consult with EPA to implement military base cleanup measures in order to meet its responsibilities under CERCLA.⁴¹ In 1994, EPA and the DOD developed guidelines to increase public participation in the DOD's cleanup programs by allowing bases to establish RABs when the local community expresses interest.⁴² According to the guidelines, "RABs bring together people who reflect the diverse interests within the local community, enabling the early and continued flow of information between the affected community, DOD and environmental oversight agencies."⁴³

Over the years, the APG RAB developed its own sense of cohesion not just as a civic body but as a social group of people who had come to know each other well, sharing small details of their lives, while working out their many disagreements through continual negotiations. This past winter, when Steve Hirsch, the well-respected and much-liked EPA On-Scene Coordinator, moved to another assignment after 12 years at APG, the RAB threw him a party, complete with a cake inscribed with the shield of the base and the presentation of a flag that had flown over the U.S. Capitol. Thomas Voltaggio, Hirsch's boss and the deputy director of EPA Region [33 ELR 10981] III, extolled the APG RAB as a model of collaboration for the rest of the country.

It would be an overstatement to suggest that the citizens trusted the Army to do what was best for public health when undertaking environmental restoration at APG. But their instinctive cynicism about the Army's motivations did not cripple their ability both to trust the individuals implementing cleanup plans and to believe that they were making a difference in the outcome of those decisions. This delicate balance, always the goal but rarely a reality in similar situations across the country, allowed the citizens to remain fully engaged in a process that was enormously time-consuming, highly technical, and extended over more than a decade.

The Struggle for Information After September 11

The flow of information began to ebb on September 12, 2001, and as it receded, the fragile web of collaborative relationships began to fray, although few realized the implications at the time. Like most policies of great import that affect the military's relationship to civilians, these changes originated with the federal government in Washington, D.C. Fears that terrorists would strike again began to drive national information policy to an unprecedented extent.

Consequently, in the immediate aftermath of the attacks, Andrew Card, President George W. Bush's Chief of Staff, ordered agencies to secure information about weapons of mass destruction.⁴⁴ Attorney General John Ashcroft encouraged federal agencies and departments to stop disclosing public information unless disclosure was clearly mandated under the FOIA.⁴⁵ On October 18, 2002, Deputy Defense Secretary Paul Wolfowitz echoed Ashcroft's charge in a strongly worded memorandum unilaterally altering the DOD written policy on compliance with FOIA.⁴⁶ Although it took several months for these dire edicts to be absorbed by line officers at APG, they ultimately drove what the citizen activists called "censorship" of a wide range of information regarding environmental problems.

The Wolfowitz memorandum clearly had the greatest effect. With the ominous warning that national security information would be at risk for "an indefinite period" following the September 11 attacks, Wolfowitz instructed DOD employees to cease discussing any work-related information in public; to cease discretionary FOIA releases; to protect classified information; and to extend such protection to unclassified information that could be "compiled to reveal sensitive conclusions."⁴⁷ Lastly, the Wolfowitz memorandum ordered all military components to review their Operations Security (OPSEC) programs to ensure that all policies, procedures, and personnel vigorously deny "our adversaries the information essential for them to plan, prepare, or conduct further terrorist or related hostile operations against the United States."⁴⁸

OPSEC units were established pursuant to a DOD directive that decentralizes the control and security of intelligence to all "commanders, supervisors and decisionmakers" of all military departments and other DOD components.⁴⁹ The directive applies to all activities involving U.S. Armed Forces, at times of war or peace, and reaches all levels of military operations, research, development, testing, and international agreements. Its breadth is staggering. Generally, the directive works to keep critical information secret, managing the risk of outsiders' access to information, and balancing the cost of maintaining secrecy with the potential for "loss to mission effectiveness."⁵⁰ The directive notes that "[a] necessary condition for maintaining essential secrecy is protection of classified and unclassified information."⁵¹ In short, OPSEC empowers each base commander and local decisionmaker to deny the public access to information, classified or not, if they deem it a risk to the military's broadly defined mission or function. As a practical matter, the directive means that a single military contractor assigned OPSEC duties can refuse to provide information without ever considering whether any other federal law, including FOIA, requires disclosure. Compounding this situation, the DOD's official FOIA policy does not mention OPSEC.⁵² To make matters even worse, the policies adopted on a site-specific basis to implement the directive are themselves shrouded in secrecy.

For example, the Army's OPSEC policy is governed by Army Regulation (AR) 530-1.⁵³ While many Army regulations are available on the Army's website, AR 530-1 cannot be viewed without a password.⁵⁴ Further, an additional, secret policy statement, called the Essential Elements of Friendly Information (EEFI), is prepared by each local OPSEC official to guide determinations of what information will be withheld. In theory, the EEFI is a summary of what knowledge an adversary might seek in order to harm the command mission.⁵⁵ While the information may appear innocuous on the surface—in other words, "friendly"—it may reveal, in whole or in part, critical information. The definition of such anticipated risks is left to local OPSEC officials' sole—and unreviewable—discretion.

[33 ELR 10982]

Operational Security Takes Charge at APG

In the spring and summer of 2002, the director of OPSEC at APG began to assert absolute authority over the environmental cleanup documents routinely provided to the citizens. Not only did his review delay disclosure, it resulted in the withholding of information that had been provided to citizen activists for years. Given APGSCC's long history of working with officials in charge of APG's cleanup programs, citizen activists were caught off-guard by these developments. Until this point, they had been given everything they requested, for their own use and for free distribution to the public.

In an effort to understand the new policy, APGSCC members and their attorneys have held several meetings with the OPSEC director. Repeatedly he has explained that if he can imagine any causal link between the release of information and "the bad guys" (terrorists) using it to attack the base, he will withhold it. At a recent "closed" meeting of the RAB, the OPSEC director passed out copies of the APG EEFI document, allowed RAB members to review it quickly, and then retrieved all copies. When APGSCC members asked him whether all the grounds for withholding documents were reflected in the EEFI, he said that the specific reference may not be included, but that he nevertheless would withhold it because he knew the "intent" of the EEFI because he wrote the document.⁵⁶

The OPSEC director's overriding preoccupation when reviewing printed material related to environmental problems at APG is maps and figures that are used to illustrate the nature, scope, and sources of contamination; what steps were taken to establish those parameters; the existence and location of such pathways for human exposure as drinking water wells and other areas frequented by the public on the base; and any physical features that might restrict that access. The OPSEC director has deleted the following information from most maps and figures:

street names;

building footprints, even for buildings that no longer existed at the base and for hazardous waste storage facilities that are themselves the source of contamination;

fencelines;

sewage outfalls;

the locations of man-made concrete surfaces, gravel, and sandpits.

natural features, such as "grassy areas" and creeks;

and

drinking water wells.⁵⁷

He also refused to provide pictures of any physical facilities on the property, including historical overhead photographs, used to determine the occurrence of spills and other improper disposal.

A graphic illustration of the impact of these deletions is a set of maps provided to APGSCC technical expert Cal Baier-Anderson on April 24, 2003. Similar maps were provided two years earlier, and comparison of the two depictions of cleanup plans illustrates why the citizens found the censored maps so upsetting. The 2003 map (Figure 1), a depiction of Site 21 for the Phase II remedial investigation (RI) report, provides two unidentified lines that one can only assume are roads, along with a monitoring well location, a map scale, and a directional compass. The figure also describes the site as being "near Building 5215." The 2001 map (Figure 2), a depiction of the same site for the Phase I report, contains critical details, such as the existence of hazardous materials storage areas and other buildings that could be a source of continuing contamination to the monitoring well. It also clearly depicts certain structures such as roads and buildings that could help identify plume location and track plume movement.

Figure 1⁵⁸

[SEE Figure 1 IN ORIGINAL]

[33 ELR 10983]

Figure 2⁵⁹

[SEE Figure 2 IN ORIGINAL]

In addition to withholding information contained on the maps above, the OPSEC director withheld historical overhead photographs contained in an Aerial Photographic Analysis of Aberdeen Proving Ground/Edgewood Area/Army Chemical Center study done by EPA contractors at the request of APGSCC. These photographs, many of which were taken 10, 20, or 30 years prior, were withheld despite the fact that current aerial photographs of the base are readily accessible through Mapquest.⁶⁰

There are more than 2,200 buildings located on APG.⁶¹ Many buildings are of no interest to APGSCC and its technical experts. Others, however, were used for activities that generated significant contamination, such as the buildings involved in the criminal prosecutions of civilian employees at the base described earlier.⁶² In those cases, APGSCC and its experts believed that they needed to know the locations of buildings in order to properly assess the nature and scope of the contamination.

Fenceline locations are important because in some instances they were used to prevent human exposure to contaminants that had been slowly migrating toward neighboring residential developments. Drinking water well locations, perhaps the most contentious topic, were of central importance to APGSCC's toxicologists because they needed to know the relationship of the perchlorate plume to the location of the wells. The ready accessibility of the base to any person with a driver's license complicated the citizens' reaction to OPSEC's legitimate concern that the precise location of the wells could prove useful to terrorists. If the OPSEC director was so concerned about site security, they reasoned, why didn't he begin with a more rigorous screening of the casual visitor? The citizen activists understood and supported the concern that the base be kept secured; some have served in the military and have children who are now serving. But they found the OPSEC director's arguments strained and thought his criteria for withholding information were arbitrary. For example, they could not accept the assertion that street names, historical and even current aerial photographs, or the location of nonexistent buildings fell in the first category. Indeed, one APGSCC member brought computer downloads of maps and aerial photographs to a RAB meeting, explaining that he had obtained them easily from the Mapquest site on the worldwide web.

In order to address APG's security concerns, one member of the RAB began to engage Army officials in negotiations to create an information disclosure framework. These discussions evolved into a three-tiered approach that created different levels of "security-sensitive" documents.⁶³ At the lowest level of security concern, environmental information could be laid over on a preapproved and fully disclosable map. Information in the two higher tiers would need to be protected through disclosure restrictions. The negotiating group considered such measures as requiring citizens to sign nondisclosure agreements to providing lock boxes so that they could "secure" information in their homes.

All of these proposals worried APGSCC members. APGSCC's very identity developed in response to a federal program designed to increase community participation and involvement with Superfund cleanup actions. That mission was based on the group's ability to keep the community informed about the cleanup efforts at APG. Any other approach was "censorship" as far as APGSCC was concerned. As one member recently put it at a community meeting with military and environmental cleanup representatives: "If I [33 ELR 10984] can't get information to tell the community about what's going on, I might as well resign."⁶⁴

Indeed, a primary purpose of the group's TAG funding was to enable it to undertake educational efforts among the community explaining environmental problems at the base and what was being done to solve them.⁶⁵ To fulfill this vital function, the citizens believed that their interaction with the Army had to be kept transparent. The three-tiered approach lacked transparency on two levels. First, only a few RAB members would negotiate the disclosure framework that the rest of the RAB would have to live with. Such secret negotiations could breed animosity amongst citizens who were not a part of the negotiation team and were not happy with the disclosure requirements. Second, the three-tiered approach would be implemented largely behind OPSEC's closed doors without checks or balances. By agreeing to this framework, APGSCC may have waived their rights to pursue other avenues such as a FOIA request.

On a more personal level, many members of APGSCC had concerns that they would be criminally responsible if information they had received from the APG unintentionally passed from their hands to the hands of someone who used or intended to use the information to engage in terrorism. The concept of handling information so sensitive that it needed to be kept in a safe in their living rooms frightened them, especially because they could not be sure who else could gain access to the information and mishandle it, casting suspicion on them.

The Perchlorate Connection

If these issues had arisen at any point during APGSCC's decade-long experience with APG officials, the citizens would have been upset, but they found the secrecy particularly disconcerting because it coincided with the detection of elevated levels of perchlorate contamination in the groundwater in Aberdeen. In fact, the OPSEC director first started censoring maps in the immediate aftermath of the Baltimore Sun's publication of a map showing the location of drinking water wells in relationship to the perchlorate plume.⁶⁶ While military officials may claim that it was the revelation of the well locations that prompted their concern, APGSCC members suspected that the embarrassment caused by the hard-hitting news report was equally at play.

As mentioned earlier, perchlorate suppresses iodine uptake to the thyroid.⁶⁷ Healthy adults usually store about a month's worth of thyroid hormones, an indication of the need to precisely control thyroid hormone levels in the blood. In fact, low thyroid hormone levels interfere with brain and growth development in fetuses, infants, and children, and are associated with obesity, and cardiovascular problems in adults.⁶⁸ Last year, EPA recommended a drinking water standard of one ppb, but has delayed releasing its draft report after strenuous, behind-the-scenes opposition by the military.⁶⁹ DOD officials claim that the number should be much higher, with some sources suggesting 70 ppb.⁷⁰ Perchlorate concentrations in the city of Aberdeen's drinking water are currently averaging 0.6 ppb, although two recent samplings have revealed concentrations of 1 ppb.⁷¹ The scientific debate has become so acrimonious that the National Academy of Scientists has been asked to intervene to resolve the dispute.⁷²

As one might suspect from the intensity of this argument, APG is only one of several sites where perchlorate has affected drinking water supplies, and is a relatively small one at that. A politically well-connected defense contractor, Kerr McGee Corp., has contaminated Lake Mead—a source of drinking water for many people in the western United States—to the point that contains 12 ppb of perchlorate, affecting some 15 million residents of Nevada and California.⁷³ Other instances of contamination have caused farmers in California's most productive farmland to use perchlorate-laden water to water their crops.⁷⁴ As a result, a survey conducted by one public interest group found perchlorate levels in lettuce grown in that region as high as 20 times the level California considers safe for drinking water, which is two to six ppb.⁷⁵ In fact, perchlorate has been found in drinking water in 22 states.⁷⁶

Because of the problem's national scope, the military has estimated the an EPA drinking water standards of one ppb would result in billions in cleanup or treatment costs at U.S. military installations.⁷⁷ APGSCC members understand all too well the economics of this situation, and believe that liability for perchlorate cleanup is the real reason why the Army has censored documents, as opposed to the terrorist threat.

National Implications

At a time when the military is actively engaged on a wartime footing in Afghanistan and Iraq and public anxiety about terrorism continues to dominate the national mood, military leaders have asserted that compliance with environmental laws has hampered their capacity to ensure military readiness.⁷⁸ [33 ELR 10985] Supporters have introduced legislation to exempt certain military operations from endangered species, clean air, and hazardous waste laws.⁷⁹ Amazingly enough, EPA officials recently endorsed these proposals, substantially increasing the chances that the legislation will pass in some form.⁸⁰ In this troubling climate, the ad hoc secrecy policies imposed at APG are very likely to occur at other bases across the United States, if they have not already. With some justification, the military believes that it is free to operate outside the laws that require disclosure, even to the extent of censoring information that is readily accessible in other contexts.

Is the law ready to mediate and resolve such disputes, preserving national security as well as the value of open government and affected citizens' right-to-know about the threats that confront them? It is to that disturbing question we now turn.

The Legal Framework for Disclosure

As the Aberdeen case study demonstrates, the Army is operating extra-legally—that is, without consideration of applicable laws—in making decisions whether to disclose information about environmental problems emanating from the base. If citizens are unable to acquire the information they need from the Army on a voluntary basis in a timely manner, their legal options to compel disclosure include lawsuits under CERCLA and FOIA. This section walks through those legal options, evaluating their likelihood of success.

The analysis of the legal options must be informed by a consideration of how information disclosure policy has changed under the Bush Administration, in part as a result of the tragedies that occurred on September 11, 2001. Those changes mean that every step along the way to securing information has become significantly more complicated. CERCLA disclosure requirements are routinely ignored and FOIA requests, which already had an unfortunate history of being tedious and time-consuming, have become vastly more difficult to pursue. Unless a more balanced approach can be developed voluntarily, litigation to resolve these increasingly heated disputes seems to be inevitable, which would be an unfortunate result for all concerned. Regrettably, the citizens of APGSCC themselves felt compelled to file a lawsuit against the Army and the DOD in August 2003, to force the release of 21 maps from a Phase II RI study with levels of detail sufficient to allow the group to properly evaluate contamination.⁸¹

CERCLA

The Superfund Amendments and Reauthorization Act (SARA) of 1986⁸² imposed substantial procedural and disclosure requirements to facilitate public participation with regard to cleanups at "federal facilities" like APG.⁸³ These provisions mirror CERCLA's overall preoccupation with ensuring a transparent, inclusive process for considering cleanup options. For example, the responsible party undertaking a "remedial action" at a site on the NPL must develop a remedial investigation/feasibility study (RI/FS) that evaluates environmental contamination at the site and identifies possible remedies.⁸⁴ All such plans must be made available to the public for comment before they are made final.⁸⁵

CERCLA affords only narrow protection of confidential business information (CBI).⁸⁶ To qualify, the information must: (1) have been held confidential in other contexts; and (2) may not be subject to disclosure under any other federal or state law.⁸⁷ The submitter must demonstrate that disclosure will result in substantial harm to the "competitive position" of a person or entity and that the information does not relate to a chemical readily discovered through "reverse engineering."⁸⁸ Further, confidential information does not extend to: a substance's trade or common name and physical properties; the health and environmental hazards posed by the substance; the potential routes of human exposure to the substance; the location of disposal of a waste stream; any monitoring data or analysis of monitoring data pertaining to disposal activities; and any hydrogeologic or geologic data, or any groundwater monitoring data.⁸⁹

Anticipating that cleanups of military bases might pose special problems, CERCLA empowers the president to issue a site-specific order exempting response actions from disclosure and public participation requirements if secrecy is "necessary to protect the national security interests of the United States."⁹⁰ The statute specifically distinguishes disclosure from cleanup, providing that response actions should proceed as quickly as possible despite such orders.⁹¹ National security exemption orders under CERCLA are limited to one year but may be extended by the president, [33 ELR 10986] who must notify the U.S. Congress within 30 days of the issuance of a national security exemption order.⁹²

Further, CERCLA is the only federal environmental statute that addresses classified information directly, providing that "all Executive orders concerning the handling of restricted data and national security information, including 'need-to-know' requirements, shall be applicable to any grant of access to classified information under the provision of this chapter."⁹³ This provision was designed to address concerns raised by congressional committees overseeing national defense activities.⁹⁴

As the maps reproduced in the case study indicate, censorship has resulted in the withholding of essential information explaining monitoring and cleanup plans.⁹⁵ Indeed, the maps are so devoid of detail that they are almost useless. For example, Figure 1 provided in 2000 included a scale, soil sample locations, groundwater sample locations, building footprints, street names, hazardous waste storage buildings, and the locations of grass, concrete surfaces, gravel, and sandpits. In Figure 2, the map of Site 21 included two unlabeled lines (presumably roads) and a monitoring well.

The withholding of information about cleanup at APG, including remedial actions at NPL sites, has occurred without benefit of SARA's procedural safeguards. No order exempting such activities from disclosure requirements has been issued. Congress has not been notified, and there are no public criteria specifying how decisions to withhold are made.

Under CERCLA's citizen suit provision, citizens may sue any person, including the United States and "any other government instrumentality or agency," who violates regulations, including information disclosure regulations, promulgated under CERCLA.⁹⁶ Thus, filing a citizen suit under CERCLA against APG for withholding maps and supporting documents related to the RI/FS is one option available to APGSCC. In May 2003, the group sent a 60-day notice letter informing the Army of its intent to sue unless it corrects its public participation practices.⁹⁷ After making little progress with APG, the group filed a complaint in a district court in Maryland in August 2003.⁹⁸ The complaint states that APG, by withholding information from 120 maps, has committed 120 separate violations of the requirements imposed by public participation §§ 9617 and 9620,⁹⁹ as interpreted by the APG Federal Facilities Agreement that governs the cleanup at APG.¹⁰⁰

Of course, some of the problems associated with taking legal action include delay and expense. Another, more subtle concern is the likelihood that moving into the antagonistic arena of litigation will alter the unusually good working relationships on the RAB. APGSCC has worked with APG officials for almost a decade, and both sides are proud of the productive and effective relationship they have created over the years. It is difficult to imagine how the relationship will weather a more confrontational approach.

FOIA

In a sense, given the affirmative public participation provisions in CERCLA, FOIA is a statutory "safety net" for citizen activists at APG, as opposed to the primary source of relief that it is in so many other contexts. Nevertheless, because of the wide range of activities that go on at the base, many of which occur outside the ambit of CERCLA cleanup, FOIA remains an essential avenue for obtaining information when the Army arbitrarily broadens its practice of withholding information. For example, future weapons testing on active firing ranges could pose safety and public health concerns for civilians on and off the base. In that context, FOIA would be the remedy of first resort to obtain information about the implications of such activities.

Congress passed FOIA in 1966 in order to "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."¹⁰¹ FOIA allows the public to obtain records that are "reasonably described" and requested according to an agency's regulations.¹⁰² Of course, Congress was not oblivious to countervailing interests, including national security. The statute includes nine exemptions to its broad disclosure requirements.¹⁰³ Four of these exemptions have special importance to the military's obligations to address environmental problems: national security information (Exemption 1)¹⁰⁴; an agency's "internal personnel rules and practices" exemption (Exemption 2)¹⁰⁵; information "specifically exempted from disclosure by statute" [33 ELR 10987] (Exemption 3)¹⁰⁶; and "geological and geophysical information and data, including maps, concerning wells" (Exemption 9).¹⁰⁷ Ironically enough, the national security exemption is the least problematic exemption for APGSCC, at least for the time being.

Exemption 1

Exemption 1 allows agencies to withhold information to protect the "national defense" or "foreign policy" if the information is classified pursuant to an Executive Order.¹⁰⁸ Exemption 1 has not yet affected the release of pertinent information at APG because none of the disputed information has been classified. Much of it is so readily available that it cannot meet the criteria for classification¹⁰⁹ under either the old or amended Executive Order.¹¹⁰ Furthermore, if such information were classified, the need to give security clearance to everyone who would have access to the base and to environmental materials would be such a burdensome administrative task that the Army will undoubtedly hesitate to classify such information.¹¹¹ Of course, this situation could change, especially if citizen groups like APGSCC are successful in obtaining disclosure of unclassified information that the military is intent on keeping secret.

The express provision for use of an Executive Order to invoke Exemption 1 gives the president discretion to change the universe of classified information at will. President Bush recently amended the existing order to strengthen and expand the protection of information that could threaten national security.¹¹²

Section 1.1 of the amendments create four filters that information must pass through to be considered classified. First, the entity classifying the information must be granted original classification authority.¹¹³ Next, the information must be "owned by, produced by or for, or is under the control of the United States Government,"¹¹⁴ and the information must fall within a list of categories prescribed in § 1.4 of the Executive Order.¹¹⁵ Finally, the classifying authority must determine that "the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security and the original classification authority is able to identify or describe the damage."¹¹⁶

The amendments ended the presumption in favor of releasing information, replacing it with a presumption favoring classification.¹¹⁷ They also gave agencies the power to reclassify information after it had been declassified and released to the public.¹¹⁸ In plain terms, an agency can take certain information out of the hands of citizens who have lawfully obtained it. However, the requirement that the agency head or deputy agency head must personally make the declassification decision and articulate that decision in writing acts as a safeguard against abuse of reclassification by low-level agency staff.

Exemption 2

Exemption 2 allows agencies to withhold materials that are "related solely to the internal personnel rules and practices of an agency."¹¹⁹ While APG has not yet relied on Exemption 2 as a justification for withholding information, an APG attorney, citing recent guidance circulated by the U.S. Department of Justice (DOJ), suggested in a meeting with APGSCC lawyers that Exemption 2 would apply to many of the maps, photographs, and historical analysis that APGSCC has requested.¹²⁰

The courts have created two subcategories of Exemption 2, referred to as "Low 2" and "High 2."¹²¹ Low 2 protects trivial information that would burden an agency to produce without providing a public value, while High 2 protects information that could be used to circumvent agency rules.¹²²

The legislative history of Exemption 2 explains its bifurcation. Prior to the enactment of FOIA, section 3 of the Administrative Procedure Act (APA)¹²³ exempted from disclosure "any matter relating to the internal management of an agency."¹²⁴ Congress realized that the broad phrasing of the APA exemption had led to widespread withholding of important [33 ELR 10988] public information.¹²⁵ By replacing "internal management" with "internal personnel rules and practices," Congress attempted to narrow the scope of this exemption.¹²⁶

However, the extent to which the new exemption was intended to be limited differed in the U.S. House of Representatives and U.S. Senate reports accompanying the final legislation. The Senate report evidenced a more restrictive reading, noting that examples of "internal personnel rules and practices" would include such mundane items as rules governing personnel use of parking facilities, the regulation of lunch hours, and agency sick leave policy.¹²⁷ In contrast, the House report provided a broader interpretation. The House report stated that the exemption was intended to cover "operating rules, guidelines, and manuals of procedure for Government investigators or examiners" but that it would not cover "all matters of internal management" such as "routine administrative procedures" which Congress had concluded were being withheld under § 3 of the APA.¹²⁸

The U.S. Supreme Court first confronted these divergent views in Department of the Air Force v. Rose.¹²⁹ In Rose, the Court concluded that "the recognized principal purpose of the FOIA" required adopting the interpretation most favorable to disclosure.¹³⁰ In so holding, the Court explained that Exemption 2 was designed to "simply relieve agencies from the burden of assembling and maintaining" information in which the public could not reasonably have an interest.¹³¹ Despite reaching a definite conclusion on the congressional intent in enacting Exemption 2, the Court limited its holding in Rose to situations where possible circumvention of agency regulation was not at issue.¹³² As a result, subsequent lower court opinions interpreting the scope of Exemption 2 bifurcated its application into two distinct categories.

According to the lower court decisions, the Low 2 category, a direct application of the Court's decision in Rose, protects from disclosure information that (1) "relates to trivial administrative matters" that (2) are "of no genuine public interest."¹³³ The High 2 category, alternatively, protects substantial internal agency matters, the disclosure of which would significantly risk circumvention of an agency regulation or statute.¹³⁴ Although application of the Low 2 exemption has been rather straightforward, application of the High 2 exemption has generated controversy and, as a result, inconsistent opinions from the lower courts.

After the September 11, 2001, terrorist attacks, the Bush Administration encouraged agencies to withhold records, especially those that concern matters of national security.¹³⁵ To that end, the DOJ's Office of Information Policy (OIP) issued a Freedom of Information Act Guide that seems to suggest that sensitive information could be withheld under a broadened definition of the High 2 exemption.¹³⁶

The OIP urges government lawyers to argue that if the maps and other documents are produced, they would provide terrorists and other bad actors with the very materials they need to attack, and thus, disclosure "significantly risks circumvention" of the law. However, this analysis of the High 2 exemption does not accurately convey the courts' current interpretation of High 2. More accurately, the courts have held that the High 2 concern with circumvention refers to "internal" material that would result in the disclosure of investigative techniques, such as the U.S. Federal Bureau of Investigation agent procedure manuals or prison guard training guides. To apply High 2 to the withholding of maps and photographs expands the exemption dramatically beyond its known bounds. Moreover, what is clear from the legislative history is that both houses of Congress intended that Exemption 2 would not act as a "statutory excuse for withholding Government records from public view."¹³⁷

Exemption 3

Exemption 3 authorizes federal agencies and departments to withhold information if another federal statute prohibits its disclosure.¹³⁸ Once again, Exemption 3 has yet to be invoked as a justification for withholding information at APG, although it may just be a matter of time before it begins to play a role in disputes between the military and nearby communities.

Under Exemption 3, Congress itself writes the rules for when specific types of information may be withheld.¹³⁹ Only explicit nondisclosure statutes suffice to support nondisclosure.¹⁴⁰ Disclosure thus prevails unless the statute clearly indicates otherwise.¹⁴¹

In order to rely on Exemption 3 to withhold information, an agency has the burden¹⁴² of showing that nondisclosure is [33 ELR 10989] justified by one of two Exemption 3 prongs. A relevant statute either "(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld."¹⁴³ The first "no discretion" prong is rarely invoked because few statutes meet its high standard.¹⁴⁴ The second prong, known as the "particular criteria" category, is used much more often.¹⁴⁵ Unlike the first prong, it allows for some administrative discretion.¹⁴⁶

More than 100 statutes probably fall under Exemption 3.¹⁴⁷ For instance, the Department of Defense Authorization Act (DOD Authorization Act) of 1984,¹⁴⁸ the Brooks Act,¹⁴⁹ and the Computer Security Act of 1987,¹⁵⁰ which provide authority to withhold information that is "sensitive but unclassified," and could be used to trigger Exemption 3 in defense to demands for disclosure. In the wake of September 11, two additional statutes have been enacted that could prove relevant to disputes over disclosure in the context of military cleanups: the Critical Infrastructure Information Act (CIIA)¹⁵¹ and the Public Health Security and Bioterrorism Preparedness and Response Act (Bioterrorism Act).¹⁵² Both contain specific information nondisclosure provisions that seem to squarely fall within FOIA Exemption 3.

Sensitive but Unclassified

Section 1217(a) of the DOD Authorization Act for the first time provided statutory authority under Exemption 3 for the DOD to withhold data that it deems sensitive when public disclosure is "tantamount to providing uncontrolled foreign access."¹⁵³ Historically, the term "sensitive but unclassified" has been used to refer to a vague genre of information that could possibly threaten national security. The term was first coined in 1965, when Congress attempted to remove the monopoly the highly secretive U.S. National Security Agency (NSA) had on government-derived security information.¹⁵⁴ The Brooks Act removed control of certain kinds of security information from NSA and gave it to the U.S. Department of Commerce (DOC).¹⁵⁵ NSA maintained control over classified information, while the DOC controlled sensitive, but unclassified information.¹⁵⁶

The Computer Age gave rise to new anxieties about the security of government information. Concerns that computers gave Soviet agents, terrorists, and other bad actors surreptitious access to "unclassified but sensitive information that could adversely affect national security" gave rise to new Executive Orders to protect such information.¹⁵⁷ As articulated by the DOD, NSA, and the U.S. Central Intelligence Agency, the imperative of maintaining computer security was the prospect that sophisticated enemies could use advanced technology and database searches to piece together innocuous bits of public information into a "mosaic" of highly sensitive technical information.¹⁵⁸ Executive Order No. 12356, issued by President Ronald Reagan in 1982, abolished the requirement that agencies balance national security and public interests when classifying information.¹⁵⁹ In a companion order, National Security Decision Directive (NSDD) 145, President Reagan authorized the DOD and NSA to set nationwide security standards for both classified and sensitive information stored in government and private computers.¹⁶⁰

The NSDD 145 led to a policy, issued by Reagan national security advisor John Poindexter, that ordered each agency to protect sensitive but unclassified information, especially if it was stored in computer systems.¹⁶¹ The policy expanded the definition of sensitive but unclassified to include any information whose "disclosure, loss, misuse, alteration or destruction [could] adversely affect national security or other federal government interests."¹⁶² The policy was not clear on what "protection" entailed. The uproar from civil liberty and industry groups killed the policy within five months after its issuance.¹⁶³

The backlash led Congress to enact the Computer Security Act of 1987. Inspired by Congress' lack of confidence in the military's ability to manage information, the Act restored the DOC's civilian control over safeguarding computerized information.¹⁶⁴ A report by the House Committee on Government Operations stated in part that, "since it is the natural tendency of DOD to restrict access to information through the classification process, it would almost be [33 ELR 10990] impossible for the Department to strike an objective balance between the need to safeguard information and the need to maintain the free exchange of information."¹⁶⁵

The Act ordered each agency to identify its own sensitive information and to develop a computer security plan to protect it.¹⁶⁶ The Act retained a broad definition of sensitive information: "Any information, the loss, misuse, or unauthorized access to or modification of which could adversely affect the national interest or the conduct of Federal programs, or the privacy to which individuals are entitled under [the Privacy Act], but which has not been specifically authorized … to be kept secret …."¹⁶⁷ Importantly, the Act stated that the Computer Security Act did not in any way affect what information agencies could disclose to the public under FOIA.¹⁶⁸

The September 11 attacks revived the viability of invoking these various legal authorities to protect "sensitive but unclassified" information. As explained previously, within 30 days of the attacks, the Ashcroft memorandum encouraged agencies to withhold information so long as there was a "sound legal basis."¹⁶⁹ Five months later, the Card memorandum ordered agencies and departments to protect all information related to weapons of mass destruction, including chemical, biological, radiological, and nuclear weapons—"as well as other information that could be misused to harm the security of our Nation and the safety of our people."¹⁷⁰ The Card memorandum prompted the Information Security Oversight Office to issue guidance imploring agencies to safeguard "sensitive but unclassified information related to America's homeland security" by "giving full and careful consideration to all applicable FOIA exemptions."¹⁷¹

Critical Infrastructure Information Act

Enacted as part of the Homeland Security Act,¹⁷² the CIIA¹⁷³ exempts from disclosure critical infrastructure information (CII) that entities submit "voluntarily" to the new U.S. Department of Homeland Security (DHS).¹⁷⁴ The definitions of these terms are extremely broad: CII includes any information that concerns physical or cyber infrastructure and is not "customarily in the public domain" and entities submit CII voluntarily in any case where DHS has not exercised its legal authority to obtain it.

The most controversial provisions of the CIIA concern the advantages of submitting CII and the consequences for failing to protect its confidentiality. The Act prohibits the use of voluntarily submitted CII in a civil suit arising under federal or state law, providing civil immunity to the submitter of the material.¹⁷⁵ Government officials who knowingly release such information without the submitter's express written consent risk criminal prosecution.¹⁷⁶

Proponents of the CIIA argue that protecting corporations from liability and holding governmental officials criminally liable were necessary to "make companies and individuals feel comfortable about sharing information with the department to keep us safe."¹⁷⁷ Critics note how the law effectively allows corporations to shield themselves from liability simply by submitting information to the DHS.¹⁷⁸ Sen. Patrick Leahy (D-Vt.) called CIIA's nondisclosure rules "the most severe weakening of [FOIA] in its 36-year history."¹⁷⁹ On March 12, Senator Leahy, joined by Sens. Robert Byrd (D-W. Va.), James Jeffords (I-Vt.), Carl Levin (D-Mich.), and Joseph Lieberman (D-Conn.), proposed the Restoration of Freedom of Information Act of 2003 in an effort to remove the law's civil immunity and criminal penalty provisions, but the prospects for the legislation are highly uncertain.¹⁸⁰

Bioterrorism Act

The Bioterrorism Act,¹⁸¹ a new anti-bioterrorism law amending, among other things, the Safe Drinking Water Act,¹⁸² was signed into law on June 12, 2002. It requires drinking water systems to prepare "vulnerability assessments" to determine where and how its system is vulnerable to a terrorist attack.¹⁸³ The deadline for systems serving 3,300 to 50,000 people, such as the wells serving the city of Aberdeen, is June 30, 2004.¹⁸⁴ Those assessments are protected from public disclosure under FOIA.¹⁸⁵

The Association of Metropolitan Water Agencies (AMWA) has developed a guide designed to help water utilities change state and local public information laws to protect water system information.¹⁸⁶ Noting that "transparency exacts a cost," the AMWA argues that open access "provides nefarious elements with a road map for attacking the safe, secure, and reliable supply of services from utilities."¹⁸⁷ The AMWA notes that several states are considering modifying their public disclosure laws in response to [33 ELR 10991] September 11.¹⁸⁸ For example, Iowa and Virginia have passed legislation specifically protecting water system safety and security information.¹⁸⁹

Both the CIIA and the Bioterrorism Act attempt to address the concern that terrorists will exploit vulnerabilities in our infrastructure. Although it is difficult to quarrel with the intent behind the laws, these exemptions nevertheless raise an important question: will allowing such information to be kept secret make us more or less safe?¹⁹⁰

In APGSCC's case, extending prohibitions against the release of vulnerability assessments to drinking well locations will severely limit the group's ability to hold the Army accountable for addressing the perchlorate threat to drinking water. If the goal is to make people safer, limiting the ability of citizens and even local, state, and federal government to exchange and evaluate information concerning key infrastructure vulnerabilities poses its own risks, especially if groups like APGSCC decide that the barriers to and costs of acquiring information are simply too high.

Exemption 9

FOIA Exemption 9 on its face also appears to apply to the type of drinking water wells at issue at APG, although it too has yet to be invoked at APG. The provision exempts "geological and geophysical information and data, including maps, concerning wells,"¹⁹¹ but has been described as the "least explained and most suspect" FOIA exemption.¹⁹² Included within FOIA at the "eleventh hour" to protect oil well materials from disclosure, many commentators consider Exemption 9 to be a legacy of President Lyndon B. Johnson's frequent and faithful protection of the oil and natural gas industry, criticizing it as a "Texas Touch."¹⁹³

In addition to or perhaps because of its history, many also consider Exemption 9 to be superfluous because it essentially protects trade secrets and confidential commercial information, which are already protected by Exemption 4.¹⁹⁴ When Congress included Exemption 9, however, there is some indication that some members were concerned that Exemption 4 would not protect oil prospectors who had invested vast sums of money for exploration against speculators.¹⁹⁵ The close connection between the two exemptions, however, has led some commentators to conclude that Exemption 9 essentially "supplements" Exemption 4 and cannot be understood outside of the trade secret context.¹⁹⁶ Even in a recent case applying Exemption 9 to groundwater wells the court withheld the information only in the context of a situation where the parties were competing with each other for access to scarce water resources.¹⁹⁷

Balancing National Security With the Benefits of Disclosure

In the Aberdeen case study, the Army's decision to withhold unclassified information that the citizens at Aberdeen believe is necessary for them to evaluate the remediation of perchlorate and other contaminants essentially leaves the citizens with three options. The first option is to accept the Army's decision and the justification that the information must be withheld in the interest of the security of the base. This option, however, is less than satisfactory for the citizens because it requires them not only to trust that the Army will keep them secure from a potential terrorist attack, but also to trust that the Army will diligently pursue the cleanup of the toxic contaminants that it has released onto the base and surrounding areas. Trusting that the Army will do the latter is a difficult thing to ask the citizens to do given the military's history and its current reluctance at the national level to deal with environmental issues.¹⁹⁸ The second option is for the citizens to attempt to get the information under the mandatory disclosure provisions of CERCLA.¹⁹⁹ The final option is for the citizens to pursue getting the information under FOIA.²⁰⁰ The second and third options are also less than ideal because the Army would likely invoke a national security exemption to these laws and the result would be time-consuming and expensive litigation in order to challenge this decision. And even if these options were to prove successful, it is simply not realistic for the citizens at Aberdeen to go to court each and every time information is withheld, especially given the frequency of this practice.

The citizens at Aberdeen, therefore, are in the difficult and frustrating position of needing information that they feel is vital to protect their health, but at the same time lacking a viable means to obtain such information. And this dilemma is likely not unique to the Aberdeen case study. Government officials at both the national and local level have responded to the terrorist attacks of September 11, 2001, with an increased concern for security. But in pursuing this legitimate concern, the countervailing interests in open and complete disclosure of information have been pushed aside. These highly valuable interests, which include public trust in government and government accountability, are the foundation of a democratic society and the guiding principles of FOIA and many of the nation's environmental laws. These considerations are simply too important to be completely subsumed by fears, especially irrational fears, of another terrorist attack.

The problem of how to weigh these competing interests is not being addressed at the national level and the Aberdeen case study highlights the chaos and frustration in allowing [33 ELR 10992] this problem to be solved locally in a manner that is disconnected from the law. The security of our military installations and other potential targets of terrorism is a worth-while consideration, but certainly not the only one. Therefore, we must broaden the scope of the dialogue and find a better method for evaluating all of the competing concerns raised by this dilemma. To this end, we propose a balancing test that will restore common sense and lead to a more informed consideration as to whether information should be withheld. After outlining the parameters of our test, we will then apply it to the Aberdeen case study and evaluate the likely outcome.

The Test

To resolve any crisis in information policy, we propose that a decision as to whether information should be withheld must balance the reasonable possibility that releasing information poses a threat to local or national security against the benefits of disclosure to the public. Before outlining the contours of this balancing test, it is important to first discuss two fundamental ideas upon which the test is premised. First, a decision to withhold unclassified information must be made only upon an affirmative showing by the responsible government agency that withholding the information will protect national and local security. A fair and educated balancing of both the interests in security and the interests in open government can only be made if the justifications for withholding the information are sincere and well defined. FOIA, in fact, incorporates this notion by requiring a government agency seeking to classify information under Exemption 1 to follow a defined and deliberate set of procedures.²⁰¹ These procedural safeguards ensure that government agencies are not withholding information on an arbitrary basis or without proper justification. In balancing the interests of security with that of disclosure, it is equally, if not more, important to premise a decision on a similar showing to avoid arbitrary and unjustified withholding of unclassified information. As the Aberdeen case study illustrates, it can be very easy for government officials to use national security as a blanket justification for their actions and avoid public scrutiny. In so doing, government officials may be acting out of reasonable concern for security, or they may be providing an opportunistic justification for action inspired by an alternative motive that they are reluctant to acknowledge. To eliminate the potential for a skewed weighing of all countervailing interests and to ensure an informed decision, the balancing test must therefore be premised on an affirmative showing that withholding information will protect national security.

Second, any consideration of whether information should be disclosed must be premised on the notion that the public has a right to know certain information as opposed to engaging in an examination of whether the public has a need to know certain information. This is not to say that the public is entitled to have access to every piece of information the government possesses. Information that does not fall within the public right-to-know can be properly classified and withheld from the public. But at the same time, Congress enacted FOIA to "create a judicially enforceable public right to secure [official] information from possibly unwilling official hands."²⁰² An effective balancing test that addresses all interests must reflect this notion of the public's right-to-know.

The reason that a right-to-know standard is so essential is two-fold. First, if the right-to-know is downgraded to the need-to-know, an inquiry into whether the information should be disclosed would then focus on the usefulness of the information rather than the more appropriate consideration of the benefits gained by having an informed public. As a result, such benefits become less obvious or are ignored completely when balancing all competing interests. Second, preserving the public's right to know certain information provides a powerful incentive for honest and trustworthy behavior from government officials. If the scope of information that government officials were responsible to the public for was narrowed to only information that the public had a need to know, there would be less of an opportunity for public scrutiny and thus a greater potential for government officials to engage in arbitrary or poor decisionmaking.

With these two fundamental concepts serving as an underlying basis for a balancing test, there are several factors that we believe can help shape the analysis. One factor that should be considered is whether the information is already widely available to the public. The withholding of information in the Aberdeen case study was driven to a large degree by the Army's desire to prevent information from being posted on the Internet. Even if the information was already available on other websites, the Army believed that releasing the information only added to the potential for a terrorist attack by making it that much easier for a terrorist to access the information and reconnoiter the base from outside the United States. Even the Bush Administration, however, in their efforts to control the release of information to the public, has recognized that information should only be classified if it is "easily retrievable."²⁰³ Although "easily retrievable" is a vague standard and likely difficult to apply, the principle behind it that can help inform the balancing test is that classifying or withholding widely available information does not make sense. Retrieving information that has already been disseminated to the public, particularly information that has already been posted on the Internet, is likely a very time-consuming task and one that guarantees at best a negligible increase in security. Decreasing the chances for a terrorist to stumble across the information via the Internet is offset by the chance that a terrorist has already accessed the information or could access the information from another source. Balanced against the interests in disclosure, the minimal value added by this security measure is outweighed and the information should thus be disclosed.

Another related factor that should be considered is whether the information will significantly increase the risk of terrorist attack because it directly reveals a potential vulnerability or weakness in security. Such a consideration is important because it could lend credibility to a government agency's assertion that withholding the information is necessary to protect national security. The rationale behind allowing vulnerability assessments to be withheld is to encourage the military to assess potential security weaknesses and craft corrective measures without having to worry about [33 ELR 10993] disclosing to the public secrets or information that might be useful to a terrorist. The added benefit gained from examining and improving security weaknesses justifies withholding the information from the public.

In sharp contrast to this rationale, the Army in the Aberdeen case study asserted on numerous occasions that withholding any information that could potentially reveal a security weakness was the most efficient and effective security measure available. Essentially, the Army's logic is that APG has several hundred miles of fences and shoreline that are difficult to constantly monitor and protect given the resources available at the base. Therefore, rather than work toward improving the physical security of the base, it is easier to simply withhold all information that could potentially reveal a weakness, regardless of whether the information did so directly. This reasoning is vastly different from the congressional purpose behind protecting vulnerability studies and is ultimately undermined by the simple fact that the physical security of the base has not improved. In fact, anyone with a valid driver's license has the ability to enter the base.

Therefore, in balancing the reasonable possibility that releasing information poses a threat to security against the benefits of public disclosure, whether the information directly reveals a weakness in security is a valuable consideration. Information that is part of an assessment that directly reveals a security weakness is a factor that should weigh in favor of withholding the information. In contrast, information that only indirectly reveals a security weakness and is primarily used in a different context is a factor that should weigh in favor of disclosure.

In addition, the balancing test should identify the specific benefits gained by disclosure beyond the general benefits of public trust in government and accountability that are traditionally associated with open government. In the Aberdeen example, the citizens benefit from disclosure in that they trust that the Army is making a sincere effort to clean up the contamination on the base and can hold the Army accountable for failure to do so. In addition to these valuable benefits, however, the citizens at Aberdeen get a more specific benefit from the disclosure of information relating to the contamination. The citizens are able to ensure that they have a clean environment, that they are not drinking perchlorate-contaminated water, and that the overall health and well-being of the community is maintained.

The presence of such a specific public benefit independent of the traditional benefits resulting from open government should thus weigh in favor of disclosure. Using the Aberdeen case study as an example, the possibility certainly exists that a citizen living in another part of the country and facing a similar perchlorate contamination problem would be interested in information about the cleanup at Aberdeen. That citizen would receive the same general benefits from disclosure that a citizen at Aberdeen would receive—trust and accountability for the Army's efforts to clean up the perchlorate. At the same time, however, the specific benefits that citizen could gain from disclosure would be much different. That citizen may be in a better position to evaluate the perchlorate contamination and remediation efforts in his own community, but the health of the environment and the community in which that citizen lives is not at stake. Therefore, a balancing of the competing interests in security and disclosure should reflect the degree to which the person requesting the information will specifically benefit from disclosure. The more particularized the benefits, the more this factor should weigh in favor of disclosure.

Implementing the Test

One final consideration is the specific context in which this balancing test will be applied. Under the current law, government agencies have the initial responsibility to evaluate a request for information under FOIA and determine whether the information is releasable.²⁰⁴ The decision of the agency is then subject to judicial review.²⁰⁵ The courts make the ultimate determination as to whether the information is releasable under FOIA.²⁰⁶ In the current state of affairs, however, as the Aberdeen case study points out, many decisions as to whether information should be released are being made locally on a case-by-case basis outside of the framework of FOIA. Whether our balancing test is introduced within the current framework of FOIA or through legislation amending the law is less important, we believe, than application of a logical and uniform national policy to avoid the pitfalls of ad hoc decisionmaking. To this end, we simply advocate that the balancing test we propose be applied at each level, however the framework is set forth, at which the critical decision of whether information should be disclosed is made.

Application of the Test to the Aberdeen Case Study

As previously discussed, the information that the Army has withheld in the Aberdeen case study example falls into the following five categories, ranging from the most arbitrary to the most credible in the minds of the citizens:

The names of streets on the base;

Footprints on a map of buildings on the base that no longer exist;

The location on a map of buildings on the base;

Aerial photographs of buildings on the base; and

The location of drinking water wells.

Applying the balancing test outlined above to these categories of information, we conclude that in each instance, the increase in security that can be achieved from withholding the information does not outweigh the benefits that can be achieved by disclosure.²⁰⁷ Although disclosing the location of drinking water wells could present a situation in which there is a reasonable possibility that disclosure poses a threat to security that outweighs the benefits that can be gained, this result has not occurred in the Aberdeen case study example. For each of these categories of information, therefore, an informed and fair balancing of all competing interests compels disclosure to the public.

Applying the balancing test to the first category of information withheld, the names of streets on the base, it is clear that there is not a reasonable possibility that the information poses a threat to national security such that it outweighs the [33 ELR 10994] benefits of disclosure. The Army asserted that a map with street names makes it easier for terrorists to plan access to the base for a potential attack, thus placing the security of the base at risk. However, the names of the streets on the base are already widely available to the public in a variety of media, including on city and county maps available at a corner gas station and on the Internet. Furthermore, including street names on a map does not reveal a particular vulnerability or security weakness of the base, it merely discloses information that can be learned in another context. In contrast, the citizens would benefit from including street names on a map that describes the location of the perchlorate contamination because such a map would allow the citizens to understand the location of the contamination and its proximity to the community. Balancing these factors thus leads to conclusion that the information should be disclosed.

Whether the second category of information, a map with footprints of buildings that no longer exist, should be disclosed is as clear as the street names example. The location on a map of former buildings on the base is likely not a piece of information that is widely available on the Internet, but the information is likely widely available on older maps of the base. More importantly, it is difficult to imagine how the location of former buildings reveals a weakness in security. The Army justified withholding this information on the basis that the location of a former building could imply what the building was used for and could thus indicate for what purpose a current building in a nearby location is used for. This highly tenuous and indirect connection to the security of the base is a far cry from a vulnerability assessment. At the same time, the location of former buildings on a current map of the base is particularly useful to the citizens because it helps to identify potential sources of contamination. In so doing, the information helps narrow locations where expensive testing and remediation procedures should take place. Thus, a balancing of these factors leads to the conclusion that the information should be disclosed.

The third category of information, the location on a map of current buildings on the base, is similar to the previous category except that the information is slightly more directly related to the security of the base. Rather than having to complete the highly improbable chain of implications cited in the previous example, a terrorist with a map that includes the location of current buildings on the base, according to the Army, is in a better position to identify current uses of such buildings. Although the ability to recognize and extrapolate such information is increased, disclosing the location of current buildings on a map does not pose a reasonable threat to the security of the base when balanced against the benefits gained by disclosure. The fact remains that the information is likely already widely available to the public on older maps. More importantly, as in the previous category of information, the location of a building does not directly reveal a weakness in security. The information may, if a terrorist is able to make the necessary inferences, reveal a potential target or its location, but the information itself does not make it easier for a terrorist to execute an attack on the base through a revealed weakness in security. Furthermore, current building locations provide the same indispensable benefits to the citizens as the location of former buildings. The information helps identify potential sources of contamination as well as buildings that are seriously threatened by the contamination. A balancing of these interests, therefore, ultimately weighs in favor of disclosure.

Whether aerial photographs of buildings on the base, the fourth category of information, should be disclosed provides a more difficult question than the previous three examples. Aerial photographs are even more likely than building locations on a map to directly reveal a potential weakness in the physical security of the base. In contrast to building locations on a map, aerial photographs can provide a more detailed and accurate portrayal of a building or area of the base and its security measures. As opposed to simply indicating location or use, an aerial photograph can provide more detail, for example, on the type of building and whether the building is surrounded by fences or reinforced by additional security. At the same time, though, the aerial photographs withheld in the Aberdeen case study were not taken as part of a vulnerability assessment and many are historical photographs taken 10 or more years ago. Thus, a degree of extrapolation is probably still required in order to assess a potential security weakness. In addition, current aerial photographs of the base are capable of being downloaded over the Internet. Furthermore, the citizens gain a specific benefit from having aerial photographs as part of a RI/FS in that they are better able to evaluate the movement of perchlorate plumes and to detect potential sources of the contamination. Such photographic studies and analysis are routinely performed as part of remediation efforts and are a valuable resource for evaluating cleanup efforts. Thus, a fair and informed balancing of these factors weighs in favor of disclosure.

The most difficult inquiry in the Aberdeen case study is whether the location of drinking water wells, the final category of information, should be disclosed. Because of the potential to kill or injure large numbers of people, the contamination of drinking water wells has been widely identified as a viable method for terrorists to use to execute another attack. As a result, safeguarding the nation's water supply has been recognized as a necessary security measure to protect the public from a terrorist attack. Revealing the location of the drinking water wells, therefore, has the potential to pose a reasonable threat to security that outweighs the benefits that can be gained from disclosure. At the same time, the location of drinking water wells is perhaps the most fundamental piece of information the citizens at Aberdeen need to evaluate the risk that the perchlorate contamination poses to their health and environment.

Applying the balancing test to this category of information, however, as in each of the preceding examples, results in favor of disclosure to the public. The location of drinking water wells is information that is generally not as widely available to the public as the previous categories of information. At the same time, however, the location of the wells by itself is not information that directly indicates a security weakness. As in the example of current building locations on a map, the information identifies a location and may reveal a potential target, but the information does not make it easier for a terrorist to execute an attack if the drinking water wells are otherwise sufficiently protected. In the Aberdeen example, the information was not withheld as part of a vulnerability assessment and was not accompanied by other information that could indicate a security weakness. If that were the case, the weighing of these factors might have a different result. The fact remains that even though drinking [33 ELR 10995] water wells have been cited as warranting protection because they are potential targets, the reasonable possibility that the disclosure poses a threat to national security is not increased. And given the fundamental need the citizens have for the information to be able to adequately evaluate their exposure to perchlorate, the balancing of all competing interests weighs in favor of disclosure.

Conclusion

Although FOIA was passed in the 1960s and then strengthened after Watergate, the principle that information disclosure and open government are necessary for a healthy democracy was a fundamental principle invoked by the Founders of the United States. James Madison emphasized the vital role information plays in helping people govern themselves successfully when he wrote:

A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance. And the people who mean to be their own Governors, must arm themselves with the power, which knowledge gives.²⁰⁸

What does information disclosure accomplish? The knowledge that information brings allows people to hold their government accountable. It encourages people to be active and engaged citizens, perhaps increasing their loyalty and certainly increasing their trust. It allows the press as well as citizen groups to function as government watchdogs, and it forces the government to think through and document its decisions in response.²⁰⁹ It supplements government regulatory authority by allowing private citizens to monitor regulated industries.²¹⁰ Arguably, the act of producing information, especially information related to the public health, safety, and welfare, is a fundamental function of government.

Information disclosure has its costs, of course. Justice Antonin Scalia, then a professor of law at the University of Chicago, once wrote that FOIA "is the Taj Mahal of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis ignored."²¹¹ The cost of processing and responding to requests is so high, Justice Scalia suggested, that a "need-to-know" as opposed to a "right-to-know" policy made more sense. Justice Scalia has further contended that, because government has a legitimate need for secrecy, most FOIA supporters have a decidedly romantic view of FOIA's role in promoting democracy: "The defects of [FOIA] cannot be cured so long as we are dominated by the obsession … that the first line of defense against an arbitrary executive is do-it-yourself oversight by the public and its surrogate, the press."²¹²

Admittedly, while the press and public are not perfect watchdogs, secrecy has high costs as well. An obsessive enthusiasm for secrecy fosters cynicism, paranoia, and disengagement.²¹³ It rests on the undemocratic assumption that people are better off letting government officials and private sector experts make decisions. Secrecy "breeds irresponsibility" on the part of both citizens and government, as citizens chose apathy over engagement and as government chooses to hide mistakes or to ignore threats to public safety.²¹⁴

Ultimately, in a complementary fashion, trust in government is made possible by government accountability. Certainly, in APGSCC's case, APG's unrestrained preoccupation with secrecy has led many of the citizens to believe that the Army is intent on covering up the perchlorate problem. If this distrust and cynicism widens and deepens, infecting similar relationships across the country, the terrorists who attacked the United States on September 11 may well have won a victory neither we nor they anticipated at the time.

1. Lane Harvey Brown, Town Closes I of II Wells, BALT. SUN, June 14, 2003, at 1B [hereinafter Town Closes] (noting the first detection of perchlorate in the city of Aberdeen's production wells).

2. Rebecca Renner, Academy to Mediate Debate Over Rocket-Fuel Contaminants, 229 SCIENCE 1829, 1829 (2003).

3. Joe Nawrozki, Top-Secret Lab in Md. Hunts "Smoking Gun," BALT. SUN, Apr. 17, 2003, at 21A.

4. Some of the technical experts who have considered the problem believe that more chemicals may be present, but are as yet undiscovered, because testing for weapons-related compounds is limited. Personal Communication with Dr. Cal Baier-Anderson, Ph.D. toxicologist with the University of Maryland Program in Toxicology.

5. Lane Harvey Brown, Plan Aims to Protect Water, BALT. SUN, June 6, 2002, at 2B.

6. See id.

7. Lane Harvey Brown, Aberdeen Well Shut After Chemical Test, BALT. SUN, Oct. 3, 2002, at 1B.

8. Id.

9. See infra note 54 and accompanying text (describing the information withheld in the Aberdeen case study).

10. This information, as well as much of the information presented in this Article, is based on personal knowledge gained from our representation of the Aberdeen Proving Ground Superfund Citizens Coalition (APGSCC) over the past year. In addition to multiple meetings and correspondence with our clients, we engaged in dialogue with their toxicologist Dr. Cal Baier-Anderson, Ph.D.; Army officials from APG; and federal and state environmental officials regarding these and other issues.

11. See infra notes 96-100 and accompanying text (discussing the lawsuit that has been filed by APGSCC against APG as a result of this information dispute).

12. 42 U.S.C. § 9617, ELR STAT. CERCLA § 117.

13. 5 U.S.C. § 552, available in ELR STAT. ADMIN. PROC.

14. U.S. Army, Aberdeen Proving Ground, at http://www.apg.army.mil/Aberdeen_proving_ground.htm (last visited July 15, 2003).

15. Id.

16. Id.

17. U.S. Army, APG's History, at http://www.apg.army.mil/garrison/safety-environ/restor/history.html (last visited Aug. 16, 2003).

18. Ariel Sabar, Toxic Legacy of Military Haunts Bases, BALT. SUN, Jan. 19, 2003, at 1A.

19. U.S. EPA, Final National Priorities List, at http://www.epa.gov/superfund/sites/query/queryhtm/nplfin.htm#Maryland (last visited July 15, 2003). The two sites are the Edgewood Area, which was listed on Feb. 21, 1990, and the Michaelsville Landfill, which was listed on Oct. 4, 1989.

20. U.S. EPA, Current Site Description List, Aberdeen Proving Ground (Edgewood Area Site), at http://epa.gov/reg3hwmd/super/MD/aberdeen-edgewood/pad.htm (last visited July 15, 2003).

21. U.S. EPA, Current Site Description List, Aberdeen Proving Ground (Michaelsville Area Site), at http://epa.gov/reg3hwmd/super/MD/aberdeen-micheal/pad.htm (last visited Apr. 7, 2003).

22. Nawrozki, supra note 3.

23. Paul W. Valentine & Michael Weisskopf, Aberdeen Civilian Officials Guilty in Toxic Waste Case, WASH, POST, Feb. 24, 1989, at A1.

24. Id. (noting that the case could affect 120,000 federal employees nationwide who had waste management responsibilities).

25. United States v. Lee, 912 F.2d 741, 746 (4th Cir. 1990).

26. Id.

27. Id.

28. Id. at 747-49.

29. See Bruce Reid, New Study of Risks at Proving Ground, BALT. SUN, Mar. 15, 1994, at 32B (reporting how APG will spend $ 66 million in 1994). In 1999, the base spent $ 47.8 million. U.S. Army, Aberdeen Proving Ground, at http://www.apg.army.mil/doim/about_APG.htm (last visited Aug. 16, 2003).

30. See Sabar, supra note 18.

31. Id.

32. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

33. U.S. EPA, Technical Assistance Grants, at http://www.epa.gov/superfund/tools/tag/index.htm (last visited July 15, 2003).

34. 42 U.S.C. § 9617(e)(1)-(2).

35. Id. § 9611.

36. U.S. EPA, Superfund Community Involvement, at http://www.epa.gov/superfund/action/community/index.htm (last visited July 14, 2003).

37. 42 U.S.C. § 9617.

38. Most community environmental groups lack the financial resources to hire experts such as toxicologists. CERCLA's "TAG grant" provision is unusual in that most environmental statutes do not provide funding directly to community groups for the purpose of hiring scientific experts. See supra notes 33-37 and accompanying text describing the TAG grant program.

39. Maj. Stuart W. Risch, The National Environmental Committee: A Proposal to Relieve Regulatory Gridlock at Federal Facility Superfund Sites, 151 MIL. L. REV. 1, 46 (1996).

40. Exec. Order No. 12580, 52 Fed. Reg. 2923 (Jan. 23, 1987), amended by Exec. Order No. 12777, 56 Fed. Reg. 54757 (Oct. 22, 1991), ADMIN. MAT. 45042.

41. Danielle Conway-Jones, Federal Procurement of Environmental Remediation Services: Feast or Famine for Small Business, 41 How. L.J. 1, 10 (1997).

42. U.S. EPA, Restoration Advisory Board Implementation Guidelines, at http://www.epa.gov/swerffrr/documents/rab.htm (last visited July 15, 2003).

43. Id. (indicating that "DOD is creating RABs to ensure that all stake-holders have a voice and can actively participate in a timely and thorough manner in the review of restoration documents").

44. Memorandum from Andrew H. Card, Whitehouse Chief of Staff, to the Heads of Executive Departments and Agencies, on Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security (Mar. 19, 2002), available at http://www.fas.org/sgp/bush/wh031902.html (last visited Aug. 14, 2003).

45. Memorandum from John Ashcroft, U.S. Attorney General, to Heads of all Federal Departments and Agencies on the Freedom of Information Act (Oct. 12, 2001), available at http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm. (last visited Aug. 14, 2003).

46. Paul Wolfowitz, Deputy Secretary of Defense, Memorandum for the Secretaries of the Military Departments; Chairman of the Joint Chiefs of Staff; Under Secretaries of Defense; Director, Defense Research and Engineering; Assistant Secrataries of Defense; General Counsel of the Department of Defense; Director, Operational Test and Evaluation; Assistants to the Secretary of Defense; Director, Nett Assessment; Directors of the Defense Agencies; and the Director of the DOD Field Activities, on Operations Security Throughout the Department of Defense (Oct. 18, 2001), available at http://www.fas.org/sgp/news/2001/10/wolfowitz.html (last visited July 16, 2003).

47. Id.

48. Id.

49. U.S. DOD Directive 5205.2, DOD Operations Security (OPSEC) Program § 2, Nov. 29, 1999, at http://www.fas.org/irp/doddir/dod/d5205_02.htm (last visited Aug. 14, 2003).

50. Id.

51. Id. at 4.3.1 (emphasis added).

52. See U.S. DOD, FOIA Guidance, at http://www.dod.mil/pubs/foi/guidance.html (last visited July 16, 2003).

53. U.S. Army, Army Regulation 530-1, Operations Security 3-3.b.3 (Oct. 15, 1985), at http://www.fas.org/irp/doddir/army/ar530-1.htm (last visited July 15, 2003) [hereinafter OPSEC Rule]. This outdated version appears to be the only one readily available to the public.

54. Id.

55. Id. at 3-3.

56. Transcript of APG Restoration Advisory Board Meeting (Mar. 20, 2003) (on file with the University of Maryland Environmental Law Clinic).

57. APG initially tried to redact monitoring well locations in June and July 2002, but began releasing their locations again shortly thereafter.

58. DAMES & MOORE, PHASE II REMEDIAL INVESTIGATION REPORT FOR THE OTHER ABERDEEN AREAS fig. 9-21 (2003).

59. ENGINEERING, SCIENCE, AND TECHNOLOGY, PHASE I REMEDIAL INVESTIGATION REPORT FOR OAA (2000).

60. Mapquest, at http://www.mapquest.com/maps/map.adp?dtype=a&mapdata=5%2b8Zmnm7bJy%2fTePLuwLeV3gFb6AuRy8IIHutsA42TGed8H%2fL%2fNfh2KC9n4EdTXbpu68InYpwVIKv2Y919n6Ufuk%2fafTIGFqXokw3QbHoAExONID0ZPzVbx%2bttBUe0YQJeKoy4R9SOodllJcOAk%2bEmJdCwuJA5J5%2f2URRSTOaczmInXqCQmRIOZyWNIPy9oxD30v1t%2fhF2u8yCiaJJTzz21vxZEmzO7EqoKj8bdvkOMyMDU21R7gVSQZqeWHCuRQ%2fYthdtXJGcHQy9m%2fozH5TC121%2bnSuPg5yhbs06OFA1vU%3d (last visited August 25, 2003). APGSCC filed a FOIA request with EPA Region III for a complete copy of the Aerial Photographic Analysis study. EPA claimed that the study was an Army document rather than an EPA document because the photographs in the study are of Army property. APGSCC is currently challenging the validity of EPA's determination. Letter from the University of Maryland Environmental Law Clinic on behalf og the APGSCC to Betsy Lukens, U.S. EPA, Region III (Apr. 9, 2003).

61. Aberdeen Proving Ground, About APG, at http://www.apg.army.mil/aberdeen_proving_ground.htm (last visited July 16, 2003).

62. See supra notes 23-28 and accompanying text.

63. Proposal for Maintaining National Security and Environmental Restoration at Aberdeen Proving Ground to APG's Restoration Advisory Board (Feb. 27, 2003) (unnamed author; on file with the University of Maryland Environmental Law Clinic).

64. Personal Communication with Chris Grochowski, APGSCC member and Co-Chair of the APG Restoration Advisory Board (Apr. 4, 2003).

65. APGSCC Technical Assistance Grant (1994-2002) (on file with the University of Maryland Environmental Law Clinic).

66. Lane Harvey Brown, Md. on Battle Line Over Water Pollutant, BALT. SUN, Nov. 14, 2002, at 1A [hereinafter Md. on Battle Line].

67. Renner, supra note 2.

68. F. Osman et al., Clinical Review 142: Cardiac Dysrhythmias and Thyroid Dysfunction: The Hidden Menace?, 87 J. CLINICAL ENDOCRINOLOGY & METABOLISM 963, 963-67 (2002) (noting the link between varying levels of thyroid hormones and heart problems).

69. Renner, supra note 2.

70. See Md. on Battle Line, supra note 66. Sen. Barbara Boxer (D-Cal.) introduced legislation in March 2003, requiring EPA to establish a standard for perchlorate by July 1, 2004. S. 502, 108th Cong. § 1 (2003) (seeking to amend 42 U.S.C. 300g-1(b)(12)); see also California Senator Introduces Bill to Regulate Perchlorate in Drinking Water, ANDREWS TOXIC CHEMICALS LITIG. REP., Mar. 20, 2003, at 15.

71. Md. on Battle Line, supra note 66 (noting detections of perchlorate in the finished drinking water at 1 ppb).

72. See Renner supra note 2.

73. Miguel Bustillo, Colorado River Taint Concerns Some Officials, L.A. TIMES, Feb. 2, 2003, at 1B. Perchlorate contamination in Lake Mead has also lead to the contamination of the Colorado River. Natalie Patton, Scientists Tracking Perchlorate Pollution, LAS VEGAS REV.-J., Aug. 4, 2003, at 1B.

74. See Town Closes, supra note 1.

75. Miguel Bustillo, Lettuce Samples Found Tainted, L.A. TIMES, Apr. 28, 2003, at 1B.

76. Lane Harvey Brown, Students' "High-Stakes Science" Eyes Aberdeen Water Pollution, BALT. SUN, Dec. 23, 2002, at 1A.

77. See Town Closes, supra note 1.

78. Military Encroachment: Hearing about the Administration's Proposed National Defense Authorization Act of Fiscal Year 2004 Before the Senate Committee on Environment and Public Works, 108th Cong. (Apr. 2, 2003) (statement of Benedict S. Cohen, Deputy General Counsel for Environment and Installations, Department of Defense).

79. Ariel Sabar, Senators Oppose Military Exemption, BALT. SUN, Jan. 22, 2003, at 1B.

80. Military Encroachment: Hearing about the Administration's proposed National Defense Authorization Act of Fiscal Year 2004 Before the Senate Committee on Environment and Public Works, 108th Cong. (Apr. 2, 2003) (statement of J.P. Suarez, Assistant Administrator for Enforcement and Compliance Assurance Environmental Protection Agency).

81. See infra notes 92-96 and accompanying text.

82. Pub. L. No. 99-499, 100 Stat. 1613.

83. 42 U.S.C. §§ 9604(e)(7)(E)(i,)-(ii).

84. The national contingency plan (NCP) governs remedial actions, generally considered to be major cleanups in contrast to smaller, less expensive, and time-consuming "removal actions." See generally 40 C.F.R. pt. 300,430 for the NCP's public participation provisions.

85. 42 U.S.C. § 9605.

86. Arnold W. Reitze Jr. & Steven D. Schell, Self-Monitoring and Self-Reporting of Routine Air Pollution, 24 COLUM. J. ENVTL. L. 63, 134 n.268 (1999).

87. 42 U.S.C. § 9604(e)(7)(e).

88. Id.

89. Id.

90. Id. § 9620(j)(1). See also Amy Sheridan, National Security Exemptions in Federal Pollution Laws, 19 WM. & MARY ENVTL. L. & POL'Y REV. 287, 290 (1995). In Frost v. Perry, 919 F. Supp. 1459, 26 ELR 21252 (D. Nev. 1996), the plaintiff had difficulty proving the defendant's liability because the national security exemption limited access to essential documents. Id. at 1464.

91. 42 U.S.C. § 9620(j)(1).

92. Other environmental statutes containing a similar national security exemption provision include the Resource Conservation and Recovery Act, 42 U.S.C. § 6961, ELR STAT. RCRA § 6001 (providing that the president may exempt any solid waste management facility of any agency if it is in the paramount interest of the country); Clean Air Act, 42 U.S.C. § 7418(b), ELR STAT. CAA § 118(b) (excepting new source review standards); Clean Water Act, 33 U.S.C. § 1323(a), ELR STAT. FWPCA § 313(a) (excepting national performance standards and toxic and pretreatment standards); and Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-6, ELR STAT. SDWA § 1447. Under the SDWA, the Secretary of Defense must request a waiver. Id. § 300(j)(6)(b), ELR STAT. SDWA 1447(j)(6)(b). The president then determines whether the waiver is necessary to promote for national security. If the president determines that the waiver is necessary, the Administrator of the EPA then grants the waiver. The waiver must then be published in the Federal Register. Id.

93. Laurent R. Hourcle, Military Secrecy and Environmental Compliance, N.Y.U. ENVTL. L.J. 316, 337 (1990).

94. Id. at 336-37.

95. See supra notes 56-59 and accompanying text (describing the information withheld in the Aberdeen case study).

96. 42 U.S.C. § 9659.

97. Under CERCLA, the first step in preparing such a suit is to send the Army and EPA a 60-day notice letter explaining that APGSCC believes a violation exists and may sue if it is not corrected. Id. § 9659(d)(1). APGSCC filed a 60-day notice letter on May 19, 2003.

98. APGSCC is seeking a declaratory judgment that APG has violated requirements imposed by and issued under CERCLA §§ 9617 and 9620, 42 U.S.C. §§ 9617 and 9620, an order compelling APG to comply with those requirements immediately, and the imposition of civil penalties and the award of costs, including attorney and expert witness fees.

99. Id. §§ 9617 and 9620.

100. See In the Matter of: The U.S. Department of the Army, Aberdeen Proving Ground, Aberdeen, Maryland and Impacted Environs, Federal Facility Agreement Under CERCLA Section 120, Administrative Docket Number: III-FCA-CERC-004. The agreement was signed in March 1990.

101. National Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

102. 5 U.S.C. § 552(a)(3)(A), available in ELR STAT. ADMIN. PROC.

103. Id. § 552(b)(1-9), available in ELR STAT. ADMIN. PROC.

104. Id. § 552(b)(1)(A)-(B), available in ELR STAT. ADMIN. PROC.

105. Id. § 552(b)(2), available in ELR STAT. ADMIN. PROC.

106. Id. § 552(b)(3), available in ELR STAT. ADMIN. PROC.

107. Id. § 552(b)(9), available in ELR STAT. ADMIN. PROC.

108. Id. § 552(b)(1)(A)-(B), available in ELR STAT. ADMIN. PROC.

109. For instance, some of the information is available on public websites, such as Mapquest, which offer satellite views of many areas showing building locations and natural boundaries. Other information is in the public view of visitors to the base. See supra note 60 and accompanying text (discussing the availability of aerial photographs of APG on Mapquest.com).

110. Exec. Order No. 13292, 63 Fed. Reg. 15315, 15324 (Mar. 28, 2003) (amending Exec. Order No. 12958, 60 Fed. Reg. 19825 (Apr. 20, 1995) (ordering the classification of certain information).

111. Persons may have access to classified information only if they have been granted security clearance, they sign a nondisclosure agreement, and they have a "need-to-know" the information. Exec. Order No. 13292, 63 Fed. Reg. 15315, 15324 (Mar. 28, 2003).

112. Id., 63 Fed. Reg. at 15615. Exec. Order No. 13292 by President Bush amended the previous Executive Order issued by President William J. Clinton, Exec. Order No. 12958, 60 Fed. Reg. at 19825.

113. 63 Fed. Reg. at 15315.

114. Id.

115. Id. These categories include:

military plans, weapons systems, or operations;

foreign government information;

intelligence activities (including special activities), intelligence sources or methods, or cryptology;

foreign relations or foreign activities of the United States, including confidential sources;

scientific, technological, or economic matters relating to the national security;

United States Government programs for safeguarding nuclear materials or facilities; or

vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.

Id. at 15317.

116. Id. at 15315.

117. Id., removed § 1.2(b), 60 Fed. Reg. at 19826, Sec. 1 which stated: "If there is significant doubt about the need to classify information, it shall not be classified."

118. The previous Executive Order denied reclassification of information that had been released "under proper authority." Exec. Order No. 12958 § 1.8(c), 60 Fed. Reg. at 19826.

119. 5 U.S.C. § 552(b)(2) (2002), available in ELR STAT. ADMIN. PROC.

120. Transcript of APG Restoration Advisory Board Meeting, supra note 56.

121. See, e.g., Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1057-61 (D.C. Cir. 1981) (en banc) (discussing the legislative history of FOIA Exemption 2).

122. See id.

123. 5 U.S.C. §§ 501-596, 701-706, available in ELR STAT. ADMIN. PROC.

124. S. REP. NO. 89-813, at 3-4 (1965) [hereinafter Senate Report No. 813].

125. House Report on S. 1160, H.R. REP. NO. 89-1497, at 3 (1966) [hereinafter House Report No. 1497].

126. Id.

127. Senate Report No. 813, supra note 124.

128. House Report No. 1497, supra note 125.

129. 425 U.S. 352 (1976).

130. Id. at 366.

131. Id. at 369.

132. Id.

133. Founding Church of Scientology v. Smith, 721 F.2d 828 (D.C. Cir. 1983).

134. See, e.g., Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1074 (D.C. Cir. 1981) (en banc) (refusing to force the disclosure of a Bureau of Alcohol, Tobacco, and Firearms manual).

135. See supra notes 44-45. These memoranda are discussed further in Section III.

136. U.S. DOJ, Office of Information Policy, Freedom of Information Act Guide, May 2002, Exemption 2, at http://www.usdoj.gov/oip/exemption2.htm (last visited August 26, 2003).

137. House Report No. 1497, supra note 125. See also Crooker, 670 F.2d at 1060 (discussing the legislative history of FOIA).

138. 5 U.S.C. § 552(b)(3):

This section does not apply to matters that are—(3) specifically exempted from disclosure by statute (other than [§] 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

Id.

139. JAMES T. O'REILLY, 1 FEDERAL INFORMATION DISCLAIMER § 13:1 (3d ed. 2002).

140. See American Jewish Cong. v. Kreps, 574 F.2d 624, 628-29 (D.C. Cir. 1978) (stating that the statute must be "the product of congressional appreciation of the dangers inherent in airing particular data"); Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979) (noting that "only explicit nondisclosure statutes that evidence a congressional determination that certain materials ought to be kept in confidence will be sufficient to qualify under the exemption").

141. Wisconsin Proj. on Nuclear Arms Control v. Department of Commerce, 317 F.3d 275 (D.C. Cir. 2003) (quoting Department of the Air Force v. Rose, 425 U.S. 352, 361 (1976)).

142. 5 U.S.C. § 522(a)(4)(B). See also Petroleum Info. Corp. v. Department of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992); Department of Justice v. Tax Analysts, 492 U.S. 136, 150-51 (1989).

143. 5 U.S.C. § 552(b)(3).

144. See O'REILLY, supra note 139, § 13:4.

145. Id. § 13:5.

146. American Jewish Cong. v. Kreps, 574 F.2d 624, 628 (D.C. Cir. 1978).

147. See O'REILLY, supra note 139, § 13:1.

148. Pub. L. No. 98-94, 97 Stat. 614 (1983).

149. Federal Property and Administrative Services Act of 1949, Pub. L. No. 89-306, 79 Stat. 1127 (1965) [hereinafter Brooks Act].

150. Computer Security Act of 1987, 15 U.S.C. §§ 271-282(a).

151. Pub. L. No. 107-296, §§ 211-215, 116 Stat. 2150 (2002).

152. Pub. L. No. 107-188, § 143, 116 Stat. 594 (2002).

153. 32 C.F.R. pt. 250.2 (1989).

154. David Banisar, Roadblocks on the Information Superhighway, 41 FED. B. NEWS & J. 495 (1994).

155. Brooks Act, supra note 149.

156. For a discussion of the history of the Brooks Act, see Banisar, supra note 154; Amy Fleischmann, Personal Data Security: Divergent Standards in the European Union and the United States, 19 FORDHAM INT'L L.J. 143, 160 (1995).

157. David Burnham, Lack of Security in Computers Seen, N.Y. TIMES, June 28, 1985, at D17; Richard L. Berke, U.S. Issues Guidelines to Restrict Release of "Sensitive" Information, N.Y. TIMES, Nov. 14, 1986, at B6.

158. David E. Sanger, Rise and Fall of U.S. Data Directive, N.Y. TIMES, Mar. 19, 1987, at A18.

159. Exec. Order No. 12356, 47 Fed. Reg. 14874 (Apr. 6, 1982).

160. NSDD-145 Sept. 1984, National Policy on Telecommunications and Automated Information Systems Security (replaced by NSD-42, National Policy for the Security of National Security Telecommunications and Information Systems (U), July 5, 1990).

161. Sanger, supra note 158; David Banisar, Stopping Science: The Case of Cryptography, HEALTH MATRIX: J.L.-MED., Summer 1999, at 259-60 (discussing Poindexter policy).

162. Id. See also BRUCE SCHNEIER & DAVID BANISAR, THE ELECTRONIC PRIVACY PAPERS: DOCUMENTS ON THE BATTLE FOR PRIVACY IN THE AGE OF SURVEILLANCE 299 (1997).

163. Sanger, supra note 158. Much of the public's concern had to do with the power government agencies appeared to gain from the policy. For instance, the U.S. Federal Bureau of Investigation, the U.S. National Security Agency, and the U.S. Central Intelligence Agency repeatedly visited the databank LEXIS/NEXIS, demanding to know how the database ran. "[Federal representatives] made it clear that they though the power of the computer somehow made unclassified data different, because of the ease of doing massive searches," said the general counsel of one such database. Id.

164. Computer Security Act of 1987, Pub. L. No. 100-235, 101 Stat. 1724 (Jan. 8, 1988).

165. H.R. REP. NO. 100-153, pt. 2, at 29 (1987).

166. See supra note 164.

167. Id.

168. Id.; see Statement by President Ronald Reagan upon signing H.R. 145 (Jan. 8, 1988), reprinted in 1987 U.S.C.C.A.N. 3197-1: "I sign this Act with the understanding that it will neither expand nor restrict the federal government's present or future disclosure obligations under [FOIA] with respect to information pertaining to federal computer systems or information stored in those systems."

169. See supra note 45.

170. See supra note 44.

171. Id.

172. Pub. L. No. 107-296, 116 Stat. 2135 (2002).

173. Id. §§ 211-215, 116 Stat. 2150.

174. Id. § 214.

175. Id.

176. Id. § 213, 116 Stat. 2150.

177. Dan Morgan, Disclosure Curbs in Homeland Bill Decried; Information From Companies at Issue, WASH. POST, Nov. 16, 2002, at A13 (quoting Richard Diamond, a spokesman for House Majority Leader Richard K. Armey (R-Tex.).

178. See Rena I. Steinzor, Democracies Die Behind Closed Doors: The Homeland Security Act and Corporate Accountability, 12 KAN. J.L. & PUB. POL'Y 641, 642 (2003).

179. Id.

180. Restoration of Freedom of Information Act of 2003, H.R. 2526, 108th Cong. (2003).

181. Pub. L. No. 107-188, 116 Stat. 594 (2002).

182. 42 U.S.C. §§ 300f to 300j-26.

183. Id. § 300i-2.

184. Id. § 300i-2(a)(2)(C).

185. Id. § 300i-2(a)(5).

186. Association of Metropolitan Water Agencies State FOIA Laws: A Guide to Protecting Sensitive Water Security Information, at http://www.amwa.net/isac/stateFOIA.pdf (last visited Aug. 13, 2003).

187. Id. at 1.

188. Id. at 14.

189. Id.

190. Mike Sherry, Protecting Critical Infrastructure: Which Is Safer—Openness or Secrecy?, 90 QUILL, SOC'Y PROF. JOURNALISTS 14 (2002).

191. 5 U.S.C. § 552(b)(9).

192. O'REILLY, supra note 139, § 18:2.

193. Id. See also Charles Koch, 1 ADMINISTRATIVE LAW AND PRACTICE § 3:39 (2d ed. 1997).

194. O'REILLY, supra note 139, § 18:2.

195. Id. § 18:2. Professor O'Reilly notes:

Only the House Report mentions (b)(9) at all. It was attributed to testimony that exploration data was not covered by the "trade secret" category and that this omission would give speculators an unfair advantage "over the companies which spent millions of dollars in exploration." H.R. REP. NO. 1497, 89th Cong. 2d Sess. 11 (1966).

Id. at note 9.

196. See 15 FEDERAL PROCEDURES § 38:252 (Lawyer's Edition 2003).

197. Starkey v. Department of the Interior, 238 F. Supp. 2d 1188 (S.D. Cal. 2002).

198. Sabar, supra note 18.

199. 42 U.S.C. § 9603.

200. 5 U.S.C. § 552.

201. 5 U.S.C. § 552(b)(1)(A)-(B).

202. Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 3 ELR 20057, 20058 (1973) (emphasis added).

203. Exec. Order No. 13292, 63 Fed. Reg. at 15315.

204. 5 U.S.C. § 552.

205. Id.

206. Id.

207. It is important to note that we have assumed for purposes of this exercise that the Army in this case study has made a sufficient showing that the decision to withhold the information was not arbitrary or without a sufficient justification.

208. Letter from James Madison to W.T. Berry, Aug. 4, 1822, in THE COMPLETE MADISON 337 (Padover ed., 1953). See also Patricia M. Wald, The Freedom of Information Act: A Short Case Study in the Perils and Paybacks of Legislating Democratic Values, 33 EMORY L.J. 649, 652-53 (1984) (explaining how FOIA has "solid roots in constitutional history").

209. See OMB Watch, Principles Guiding Public Right-To-Know, at http://www.ombwatch.org/rtkconference/principles.html (last visited Aug. 26, 2003) (outlining OMB Watch's principles guiding public right-to-know).

210. See, e.g., Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613, 614 (1999) (discussing the role of informational regulation in the United States).

211. Antonin Scalia, The Freedom of Information Act Has No Clothes, REGULATION, Apr./May 1982, at 15.

212. Id. at 19.

213. See Wald, supra note 208, at 655.

214. Id.

33 ELR 10978 | Environmental Law Reporter | copyright © 2003 | All rights reserved