The Society of Environmental Journalists has voiced concern over a proposal to keep secret some of the environmental assessments done by the Department of Homeland Security (DHS).
"Public disclosure of information is the heart and soul of the National Environmental Policy Act," SEJ wrote DHS on July 14, 2004. SEJ was commenting for the record on a proposed DHS directive for handling NEPA matters at the agency. The directive was published June 14, 2004, in the Federal Register to invite public comment.
The Department of Homeland Security is in charge of a surprisingly large number of environmental programs and programs with environmental impacts. Its umbrella jurisdiction covers everything from dam safety and flood insurance to oil spill reports and prevention of chemical plant releases. Environmental reporters trying to get information on these stories may find themselves facing a culture of secrecy at DHS.
NEPA has been the fabric from which reporters have woven environmental stories since it was passed in 1969. Not only have the environmental impact statements and assessments NEPA requires been fountains of basic information, but the endless jockeying over what goes into those documents has provided a key arena in which political conflicts (aka news) on environmental issues are resolved.
Master regulations put out by the White House Council on Environmental Quality (CEQ) govern how NEPA is implemented by each federal agency. The master CEQ regs require each agency to draw up a plan detailing how it will implement NEPA. That is what the newly formed Department of Homeland Security was doing with its "Notice of Proposed Directive" for its Environmental Planning Program.
If finalized, the proposal would carve a major loophole in the 34-year-old law which is the keystone of much modern environmental law - the National Environmental Policy Act. NEPA required that the federal government publicly disclose the environmental impacts of major federal actions before they are taken.
The proposed DHS directive says that, notwithstanding NEPA requirements, DHS "will not disclose classified, protected, proprietary, or other information that is exempted from disclosure" under the Freedom of Information Act (FOIA) or a number of other authorities - some cited and some not cited. The directive instructs DHS employees to segregate information they think should not be disclosed into secret annexes to NEPA documents - or if the information is impossible to segregate, then to keep the entire document secret.
NEPA requires disclosure of any relevant information not exempted from FOIA. Information properly classified under the National Security Classification system is legally exempt from FOIA disclosure. Since the 9/11 attacks, Congress has created or expanded at least two other categories of information newly exempt from FOIA. One is "critical infrastructure information" (CII - Previous story July 2, 2003,) and the other is "sensitive security information" (SSI - Previous story June 16, 2004, on transportation bill.)
Secrecy advocates have argued that new categories like CII and SSI (which they call "protected" information) are not really new, and merely new ways of defining information subject to several of the original 9 FOIA exemptions. Open-government advocates have disputed that, saying they try to create new exemptions.
"I think it certainly goes well beyond what is withheld now in the NEPA process, and I don't think they have the legal authority to do what they're proposing," said Sharon Buccino, a lawyer for the Natural Resources Defense Council. "I don't want to undercut the importance of DHS to national security, but they don't want to compromise the democracy they were created to protect. This proposal puts forth dramatic restrictions on public participation and public access to information."
SEJ, in its comments, argued that DHS was imposing NEPA secrecy on some other categories of information - "sensitive but unclassified" (SBU), "for official use only" (FOUO), and even "sensitive homeland security information" (SHSI) - which have little or no statutory basis. Moreover, SEJ argued, DHS should not be claiming secrecy for information under still other authorities, some of which it was unable or unwilling to name in its directive.
Two of those authorities were DHS Management Directive 0460.1, "Freedom of Information Act Compliance", and DHS Management Directive 11042, "Safeguarding Sensitive But Unclassified (For Official Use Only) Information."
When SEJ asked for copies of those documents cited in the Federal Register, DHS officials (perhaps illustrating DHS's secrecy culture) told SEJ that SEJ would have to file a FOIA request for them. SEJ did so but has not yet received a response. Such documents are required to be made available without a FOIA request under Section 552(a) of FOIA.