Testimony before the House Commerce Subcommittee on Health and Environment

Wednesday, May 26, 1999

Mr. Chairman, members of the Committee. My name is Paul McMasters. I am here today testifying on behalf of the American Society of Newspapers Editors as a member of that organization’s Freedom of Information Committee.

I want to thank the committee for allowing freedom-of-information advocates to present their views on H.R. 1790, the Chemical Safety Information and Site Security Act of 1999. The American Society of Newspaper Editors and its members have long championed maximum access to government information in recognition of the vital role an informed citizenry plays in assuring good governance and a secure democracy.

It is our concern that some provisions of H.R. 1790 contradict the traditions and principles of open government as well as the requirements of current law. As written, this bill would significantly restrict the flow of vital information about potential health and safety hazards at the more than sixty thousand chemical plants located in communities across this nation.

As written, this bill would cancel specific directions for providing information to the public under the Clean Air Act. It would exempt important information from requirements of the Freedom of Information Act. It would violate specific requirements of the Electronic Freedom of Information Act. More importantly, it would deny the 40 million American citizens who live in the shadow of those sixty thousand chemical plants the information they need to act and to demand action to protect their loved ones and their communities.

U.S. citizens and their elected leaders have been especially mindful of the specter of an accidental or intentional release of hazardous chemicals, explosions and fires since 1984, when a chemical plant accident in Bhopal, India killed more than 2,000 people. The reality of that tragedy struck closer to home a year later with the release of toxic gas at the Union Carbide plant in Institute, West Virginia. That accident resulted in the hospitalization of more than 135 people and the evacuation of many others.

Spurred by public anxiety about those incidents and the possibility of others, Congress amended the Clean Air Act in 1990 to require the thousands of companies manufacturing, storing or transporting hazardous chemicals to develop risk management plans to be disclosed to the public. This requirement served the purposes of making citizens and taxpayers more aware, enlisting them as partners in making communities more secure, and reassuring them that their government places the public interest above special interests.

To implement the provisions of the amended Clean Air Act, the Environmental Protection Agency decided quite correctly, and in compliance with the Electronic Freedom of Information Act, that the Internet would be the most effective and democratic way to distribute this information. Unfortunately, reservations expressed by federal security agencies forced the EPA to abandon that strategy. As the June 21 deadline for disclosure of this information approached and the memory of those chemical disasters dimmed, federal security agencies and the chemical industry began to talk about a point-and-click worst-case-scenario: terrorists might use information on the Internet to create a chemical catastrophe in one or more of our communities.

Please bear in mind what the proposed risk management plan database would contain: inventories of 140 different chemicals, accident histories, where and how accidental chemical releases could occur, and the populations that would be affected — in other words, “worst-case scenarios” and “off-site consequence analyses.” This database would not contain security information, storage tank locations, classified information, or clues as to how a release could be triggered. In other words, as a blueprint for sabotage, the database would not be very helpful.

As a guide for citizens interested in making sure that chemical plants in their neighborhoods were hardened against accidental or intentional releases, however, such information would be invaluable.

The concerns of agencies and officials charged with protecting us from terrorist attacks certainly are understandable. But restricting the flow of information leaves citizens in ignorance while a variety of information is readily available to would-be terrorists who care to check telephone and city directories (online or off-line), attend chemical industry trade shows, check out chemical manufacturing directories in libraries, peruse EPA databases already posted, or even access congressional testimony posted on the Internet.

It seems a safe assumption that a terrorist organization would be much more likely to select a chemical plant target based on political impact or inside information about vulnerabilities than as a result of its appearance in an Internet database. And it seems prudent to keep in mind that, during the latest 10-year period to be reported, there were more than a million releases of chemicals because of accidents and not a single incident of sabotage, let alone sabotage as a result of information on the Internet. Hundreds of citizens have been killed and many more injured in the last few years, not as a result of terrorist action but as a result of problems not addressed at chemical plants.

Nevertheless, H.R. 1790 proposes a “closed system” that would allow release of worst-case scenario information only to state and local government officials in a difficult-to-access format and would impose fines and prison sentences on government employees who might misinterpret the restrictions.

Further, this legislation conflicts with the Electronic Freedom of Information Act of 1996.

The EFOIA states: “In making any records available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.” [5 USC 552(a)(3)(B)] Three years after Congress passed the EFOIA, H.R. 1790 would reverse the course toward more openness set by that Act. Instead of heeding EFOIA’s mandate that all records be provided in any form or format in which they are readily reproducible, H.R. 1790 explicitly acknowledges that this choice is no longer in the hands of the requestor, and tips the scales of access back to the government.

The EFOIA states: “In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency’s automated information system.” [Section 552(a)(3)(C)] Three years after the passage of the EFOIA, H.R. 1790 effectively says to the public that access to information in electronic format is more trouble than it is worth. Even though there is no evidence that searching for worst-case scenario information would do damage to the agency’s automated information system, and even though these records are available in electronic format, the EPA is not allowed to decide whether the proper guidelines for providing information in electronic format are met and instead must provide this information in paper form only.

The EFOIA states: “Each agency, in accordance with published rules, shall make available for public inspection and copying … copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records.” [Section 552(a)(2)(D)] Again, only three years after EFOIA afforded federal agencies the opportunity to reduce the volume of paper records they must keep, reduce the expense of copying these records, and to reduce their own workloads, H.R. 1790 would cancel EPA’s authority to determine the dissemination of information with which the EPA is most familiar. The EPA would have no discretion in determining whether worst-case scenario information is useful and desirable enough to the public to put in electronic format or whether it is just another record.

Freedom of information advocates, including the ASNE, maintain that the Freedom of Information Act is a general law and should not be amended for special interests or special categories of information. The law has served democracy for more than three decades, providing access to all information, except for nine specifically drafted and limited exceptions. H.R. 1790 would go a step further than simply adding to this list by removing an entire set of records from the purview of the FOIA. There would be no room for interpretation by the EPA as to whether release of these records pose a real danger and no opportunity for anyone to challenge this decision, as is the case when access is blocked through one of the traditional FOIA exemptions.

More generally, H.R. 1790 approaches this admittedly sensitive situation as if information poses more of a threat to U.S. citizens than the toxic chemicals manufactured and stored in their communities. That approach puts data in a meaningful and utilitarian form beyond the reach of ordinary citizens who would be more likely to press for additional safety measures if they were fully informed about potential dangers and more knowledgeable about what other communities in similar situations were doing. In effect, H.R. 1790 would substantially deprive the public and local governments alike of the following:

  • A national database providing comprehensive information about the size and nature of the potential chemical accidents for elected leaders, policy makers and public safety agencies.
  • An official resource for individual citizens, civic action groups, and researchers involved in comparing and analyzing safety and security measures from community to community.
  • Authoritative data to insure more accurate and timely reporting by the news media on safety concerns and accidents.
  • A way for families and firms moving to new communities to assess the risks.
  • An instrument for evaluating the performance of elected officials and government agencies in protecting the public.

The public needs to know whether local plants are employing new technologies and techniques that use fewer chemicals, operate at safer pressures and temperatures, reduce storage amount and time and cut down on the frequency and distance of transportation. Citizens need to know what the companies in their midst are doing about secondary containment, automatic shutoffs, alarms, fences, barriers, buffer zones, security forces, and the off-site impact of a chemical release.

H.R. 1790 would compromise and complicate access to such information.

There are good examples of how providing information about chemical and pollution hazards benefits both the public and the chemical industry. The EPA’s Toxic Release Inventory, for example, was opposed at the time it was being debated for many of the same reasons the worst-case scenario information is opposed now. Yet the TRI has led to significant reductions of chemical dangers and releases as well as improved safety and security in communities across the nation.

For those in Congress and the administration who believe that information on the Internet poses more of a threat to our safety and security than toxic and explosive chemicals in vulnerable plants, we would ask some important questions:

  • If there is a danger of terrorist activity or targeting, wouldn’t it be better if the entire community knew and was on the look-out?
  • Wouldn’t the availability of accurate, up-to-date risk management plans and the assumption that vulnerabilities were being addressed dissuade rather than attract would-be terrorists?
  • Wouldn’t the more sensible approach be to reduce the threat than to reduce the flow of information?
  • Isn’t the best defense against a terrorist armed with a modem a community armed with accurate information?

Mr. Chairman and members of the Committee, this nation’s commitment to open government is what distinguishes us from others — especially those who wish us harm and would do us harm. If we deny vital information to American citizens in anticipation that it might be used by terrorists, they will have damaged an essential democratic tradition as well as put our citizens and communities more at risk. This without a single terrorist raising a hand or voicing a threat. The unknown terrorists only have to sit back and wait for the next preventable chemical plant accident. If that happens, when that happens, we will have inflicted the injury on ourselves because we have chosen to fear the abstract notion of information in the wrong hands over the reality of chemical hazards in the nation’s neighborhoods.

About Mr. McMasters

Paul K. McMasters is a veteran of three decades in daily journalism. He is a member of the FOI Committee of the American Society of Newspaper Editors and has served as National FOI Chair of the Society of Professional Journalists. Mr. McMasters is the First Amendment Ombudsman at The Freedom Forum, a financially independent, non-partisan foundation dedicated to free press, free speech and free spirit. The Freedom Forum does not lobby, but Mr. McMasters is occasionally invited to testify before congressional committees and government commissions about First Amendment and freedom of information issues.