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38 Although state statutes may specify the penalty, Some states directly address the issue of protection transit agencies may have to look to the case law to of CII/SSI, although not necessarily specifically in the determine how those penalties are applied. For exam- context of transportation. For example, Arizona's public ple, in Washington, the open records law provides for a records law provides: "Nothing in this chapter requires penalty ranging from $5 to $100 per day that a record is the disclosure of a risk assessment that is performed by improperly withheld.404 The Washington Supreme Court or on behalf of a federal agency to evaluate critical en- has held that the penalties need not be assessed per ergy, water or telecommunications infrastructure to record and that trial courts must assess a penalty for determine its vulnerability to sabotage or attack."412 The each day a record is withheld.405 The state court has set statutory construction argument could be made that forth the factors--both mitigating and aggravating-- because such statutes specifically protect other infra- 406 that a trial court should consider in setting penalties. structure but not transportation infrastructure, that State public records acts may provide for attorney transportation infrastructure is not protected. However, fees for the prevailing party.407 A California court has we are not aware of any decisions to that effect. held that under the California Public Records Act the State security exemptions may also explicitly ad- requesting party need not receive all requested docu- dress providing contractor access to exempted informa- ments to prevail: where the requesting party received tion. For example, Florida's security exemption for one of two requested documents--without question only building plans and blueprints specifically provides that because of the lawsuit--and the claim for the document the exempt security information may be disclosed to "a not disclosed was not frivolous, the requesting party licensed architect, engineer, or contractor who is per- 408 had prevailed. forming work on or related to the building, arena, sta- dium, water treatment facility, or other structure B. Public Records Laws--Security Exemptions409 413 owned or operated by an agency." However, it is not There are various types of security exemptions, clear whether the disclosure provision applies to con- 410 many of which have been adopted since 9/11. It is not tractors at the bidding stage. The language in the Mis- uncommon for security exemptions to exclude the dis- souri state statute is arguably more expansive: "Noth- closure of information related to structural or environ- ing in this exception shall be deemed to close mental problems in buildings or information connected information regarding expenditures, purchases, or con- to inquiries conducted after the occurrence of catastro- tracts made by an agency in implementing these guide- phic events.411 The discussion of examples of types of lines or policies."414 This language takes expenditure, security exemptions is intended to provide context for purchase, and contract information out of the security transit agencies in developing their own security poli- exemption. cies. It is not yet apparent to what extent state security exemptions have been used to protect security informa- 404 tion. For example, in 2007, the Maryland Office of the WASH. REV. CODE 42.56.550(4). 405 Attorney General (OAG) submitted a report to the Yousoufian v. Ron Sims, 152 Wash. 2d 421, 425, 98 P.3d Maryland Governor and General Assembly on the pub- 463, 465 (2004). 406 lic security exception added in 2002 to Maryland's Pub- Yousoufian v. Ron Sims, 165 Wash. 2d 439, 200 P.3d 232 lic Information Act. The OAG reported that the excep- (2009). 407 tion had rarely been asserted to deny a public records E.g., Arizona: ARIZ. REV. STAT. § 39-121.02(B) (Supp. request and there had been no reported (and apparently 2006) (attorneys' fees may be awarded if the person seeking no unreported) cases applying the exception. Nonethe- public records substantially prevails); California Public Re- less, the OAG recommended that the exception be re- cords Act, Government Code, § 6259(d) (court costs and rea- 415 sonable attorney fees to plaintiff should plaintiff prevail; court tained without modification. The OAG found that two costs and reasonable attorney fees to public agency if court agencies had decided not to invoke the security exemp- finds plaintiff's case is clearly frivolous). tions after the requesters agreed to conditions: in one 408 L.A. Times v. Alameda Corridor Transp. Auth., 107 Cal. case, not making a copy of the requested information Rptr. 2d 29, 88 Cal. App. 4th 1381 (Cal. Ct. App. 2d Dist. 412 2001). ARIZ. REV. STAT. 39-126, Federal risk assessments of in- 409 See Cathy Atkins and Larry Morandi, Protecting Water frastructure; confidentiality, System Security Information, Sept. 2003 discussion of National www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/39/001 Conference of State Legislatures, Description of FOIA Exemp- 26.htm&Title=39&DocType=ARS. 413 tions, available at FLA. STAT. § 119.071(3)(b)3.b, http://www.oe.netl.doe.gov/documents/Water_Security.pdf. www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Sta 410 Right to Know vs. Need to Know: States Are Re-examining tute&Search_String=&URL=Ch0119/SEC071.HTM&Title=- Their Public-Records Laws in the Wake of Sept. 11, Homeland %3E2008-%3ECh0119-%3ESection%20071#0119.071. Building Security Brief, The Council of State Governments, Dec. 2003, plans and blueprints are protected under this exemption if they www.csg.org/pubs/Documents/Brief1003RightToKnow.pdf (ac- depict internal layout and structural elements of structures cessed Sept. 20, 2009). owned or operated by government agencies. 414 411 E.g., Virginia: VA. CODE § 2.2-3705.02, Exclusions to ap- MO. REV. STAT. § 610.021(18), plication of chapter; records relating to public safety, http://ago.mo.gov/sunshinelaw/chapter610.htm#header7. 415 http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-3705.2. GANSLER, supra note 53.
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39 and in the other, undergoing a background check before 2. Vulnerability Assessments receiving the information.416 The OAG found that the As discussed above, Maryland's Public Information language in the security exception--that authorizing Act allows a record custodian to deny inspection of part the custodian to deny inspection "only to the extent" of a specified public record based on a belief that inspec- that disclosure would threaten public security as speci- tion would be contrary to the public interest. Specified fied under the statute--allowed what would otherwise records include response procedures or plans that would be unauthorized conditions on disclosure. The OAG reveal vulnerability assessments and noted that even without this exception, federal statutes building plans, blueprints, schematic drawings, dia- such as the CIIA would preclude disclosing certain in- grams, operational manuals, or other records of airports formation under the Act because the general rule of and other mass transit facilities...the disclosure of which access under the Act is "unless otherwise provided by would reveal the building's, structure's or facility's inter- law."417 nal layout, specific location, life, safety, and support sys- This section provides examples of the types of secu- tems, structural elements, surveillance techniques, alarm rity exemptions that states have enacted. The intent is or security systems or technologies, operational and to provide context to assist transit agencies in analyzing transportation plans or protocols, or personnel deploy- the specific exemptions under their own state law. A ments. state-by-state list of security exemptions is included as However, inspection may only be denied to the extent Appendix C, infra. that inspection would jeopardize facility security, facili- tate planning of a terrorist attack, or endanger life or 1. Endanger Life or Safety physical safety.421 New York's Freedom of Information Law (FOIL) al- Texas law more broadly protects vulnerability as- lows an agency to deny access to information disclosure sessments. Texas's Public Information Act excepts from that could "endanger the life or safety of any person." 418 disclosure "information considered to be confidential by In response to a requester who had been denied access law, either constitutional, statutory, or by judicial deci- to information concerning security deployment at a sion."422 The Texas Homeland Security Act in turn county event, the agency that provides opinions on makes information confidential if it FOIL stated that the detail requested should have some (1) is collected, assembled, or maintained by or for a gov- bearing on whether information should be subject to ernmental entity for the purpose of preventing, detecting, this exception. The committee provided this example: or investigating an act of terrorism or related criminal ac- For instance, there is unquestionably an interest in en- tivity; and suring a safe supply of water for the public, and proposals (2) relates to an assessment by or for a governmental en- have been made, primarily in other jurisdictions, to re- tity, or an assessment that is maintained by a govern- quire that maps indicating the location of water supplies mental entity, of the risk or vulnerability of persons or be kept confidential. That kind of proposal is, in my view, property, including critical infrastructure, to an act of overly broad and largely unenforceable. I can see the terrorism or related criminal activity. 423 Hudson River from my office, and Reservoir Road is likely close to a reservoir. Maps that can purchased [sic] at any The Texas Attorney General has advised that merely number of locations contain information of that nature. because information relates to security concerns does On the other hand, if a map is so detailed that it indicates not make it confidential. Rather, if a governmental body the location of certain valves, places where terrorists or asserts information is excepted from disclosure under others could deposit poisons or chemical or biological the Public Information Act due to the security provi- agents, perhaps it could be contended that there is a rea- sions of the Homeland Security Act, the body must ade- sonable likelihood that disclosure, due to the degree of de- quately explain how the requested information falls 419 tail, could endanger life or safety. within the scope of the claimed provision. The Attorney The committee went on to note that while informa- General found that information described as being used tion about specific deployment of security personnel to "evaluate information about potential threat ele- might arguably endanger life or safety, information ments in [various Texas] jurisdictions" and "determine about the number of participating officers and their equipment, training, exercise, planning, organizational functions was too minimally detailed to be likely to en- and technical needs" and forwarded to DHS to deter- danger life or safety.420 mine funding needs appropriately falls within the scope 416 Id. at 78. 417 Id. at 10. The OAG cited 6 U.S.C. § 133(a)(1)(E) as an ex- ample of a federal statute precluding disclosure of information 421 MD. CODE, § 10-618(b), Permissible denials: Denial of in- despite the PIA's general presumption of disclosure. spection. 418 Freedom of Information Law, N.Y. PUB. OFF. § 87(2)(f). 422 TEX. GOV'T CODE, § 552.101, Exception: Confidential In- 419 See N.Y.S. Committee on Open Government opinion, formation, FOIL-AO-16715, Aug. 6, 2007, www.statutes.legis.state.tx.us/SOTWDocs/GV/pdf/GV.552.pdf. www.dos.state.ny.us/coog/ftext/f16715.htm (accessed Mar. 31, 423 TEX. GOV'T CODE, § 418.177, Confidentiality of Certain 2009). Information Relating to Risk or Vulnerability Assessment, 420 Id. www.statutes.legis.state.tx.us/SOTWDocs/GV/pdf/GV.418.pdf.