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7 a decade after a Japanese cult had dispersed sarin gas tion, they can conduct vulnerability assessments. The on the Tokyo subway, killing more than 10 people and Federal Transit Administration (FTA), which does not injuring thousands.10 have the authority to regulate transit agency security In addition to actual attacks on public transportation operations, has initiated various nonregulatory activi- elsewhere in the world, there have been various reports ties,17 including measures aimed at increasing security of possible attacks on transit systems in the United activities. States. These include possible terrorist plots against the In addition, FTA's recommendations18 include a New York City subway system in the fall of 200711 and number of actions that relate to protecting security in- in late 2008.12 formation--either directly or because they require cre- ating security information that must then be protected. 2. Government Responses to Terror Threats These include: Action Item 9, establishing a risk man- As might be expected, one government response to agement process to assess and manage threats, vulner- terror threats--whether based on a specific threat to an abilities, and consequences; Action Item 14, conducting individual system or in response to threats or actual background checks of employees and contractors;19 Ac- attacks elsewhere--is to increase security. For example, tion Item 15, controlling access to documents of security in the wake of the Madrid bombings, TSA issued two critical systems; and Action Item 16, developing a proc- security directives in May 2004 to rail transit opera- ess for handling and access to SSI. 13 tors. A portion of these directives became the basis for As discussed in the following section, both the fed- the Rail Transportation Security Rule issued in 2008.14 eral and state governments also reacted to terror U.S. systems nationwide increased security after the threats by enacting limitations on disclosure of other- London bombings in 2005.15 wise public information, based on security concerns. Transit agencies can increase security by augment- ing security personnel, installing video surveillance C. Background of Public Records Requirements equipment, and conducting random searches.16 In addi- Historically, public records requirements have been viewed as facilitating public oversight of government activity. The rationale for "sunshine" laws is that de- Parliament on the London Bombings, July 11, 2005, mocracy requires oversight of government activity, www.number10.gov.uk/Page7903 (accessed July 30, 2009). which in turn requires that the general public have 10 JOCELYN WAITE, THE CASE FOR SEARCHES ON PUBLIC access to information about government activity.20 Jus- TRANSPORTATION 4, n.10 (Transit Cooperative Research Pro- tice Black drew the connection between democracy and gram Legal Research Digest No. 22, 2005), citing U.S. informed public opinion in a case predating enactment GENERAL ACCOUNTING OFFICE, MASS TRANSIT: CHALLENGES IN of the Federal Freedom of Information Act (FOIA).21 SECURING TRANSIT SYSTEMS 7 (2002) (killed 11, injured over When he signed the FOIA in 1966, President Johnson 5,000); BRIAN MICHAEL JENKINS & LARRY N. GERSTEN, PROTECTING PUBLIC SURFACE TRANSPORTATION AGAINST TERRORISM AND SERIOUS CRIME: CONTINUING RESEARCH ON http://ncseonline.org/NLE/CRSreports/06Dec/RL33512.pdf BEST SECURITY PRACTICES 49 (MTI Report 01-07, 2001) (killed (accessed July 30, 2009). 12, injured thousands). Jenkins and Gersten provide an in- 17 Transit security initiatives are described at http://transit- depth look at the Tokyo attack, at 4965, safety.volpe.dot.gov/Security/SecurityInitiatives/default.asp. http://onlinepubs.trb.org/onlinepubs/tcrp/tcrp_lrd_22.pdf. BALOG, BOYD, & CATON, supra note 1. 11 Official: Threat Cited This Weekend, CNN, Oct. 7, 2005, 18 TSA/FTA Security and Emergency Management Action www.cnn.com/2005/US/10/07/newyork.subways/ (accessed July Items for Transit Agencies, http://transit-safety.volpe.dot.gov/ 30, 2009). Security/SecurityInitiatives/ActionItems/default.asp; 12 James Gordon Meek, Alison Gendar, & Larry McShane, www.tsa.gov/assets/pdf/mass_transit_action_items.pdf. FBI Warns of Possible Terror Plot Against New York City Sub- 19 See additional guidance, http://transit-/safety.volpe.dot. way System During Holiday Season, N.Y. DAILY NEWS, Nov. gov/publications/security/AdditionalGuidance/PDF/AdditionalG 26, 2008, www.nydailynews.com/news/2008/11/26/2008-11- uidance.pdf. 26_fbi_warns_of_possible_terror_plot_agains.html (accessed 20 See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, July 30, 2009). 242, 98 S. Ct. 2311, 2327, 57 L. Ed. 2d 159, 178 (1978) ("The 13 Mass Transit and Passenger Rail Security, basic purpose of [the] FOIA is to ensure an informed citizenry, www.tsa.gov/what_we_do/tsnm/mass_transit/index.shtm. vital to the functioning of a democratic society, needed to check 14 Rail Transportation Security, Final Rule, 73 Fed. Reg. against corruption and to hold the governors accountable to the 72130, Nov. 26, 2008, governed.") See also Robert Tanner, States Steadily Close Pub- http://edocket.access.gpo.gov/2008/pdf/E8-27287.pdf (49 C.F.R. lic Access to Information, THE WORLD, Mar. 17, 2008, pts. 1520 and 1580). www.theworldlink.com/articles/2008/03/17/news/doc47dead5e0 15 Laura Parker, Charisse Jones, & Thomas Frank, U.S. 3573785159931.txt (accessed Feb. 28, 2009). 21 Mass-Transit Systems Step Up Vigilance, USA TODAY, July 7, "The effective functioning of a free government like ours 2005, www.usatoday.com/news/washington/2005-07-07-dc- depends largely on the force of an informed public opinion." londonblasts_x.htm (accessed July 30, 2009). Barr v. Matteo, 360 U.S. 564, 577, 79 S. Ct. 1335, 1342, 3 L. 16 David Randall Peterman, Bart Elias, & John Frittelli, Ed. 2d 1434, 1444 (1959) (Justice Black, concurring). Through- Transportation Security: Issues for the 110th Congress, CRS out this report the term "FOIA" refers to the federal statute Report to Congress, RL 33512, Jan. 3, 2007, unless otherwise specified.
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8 called out that principle: "Democracy works best when ents.28 State record retention requirements may be in- the people have all the information that the security of cluded as part of a comprehensive public records stat- the Nation permits."22 ute29 or may exist as part of other statutory schemes. The same principle is at work at the state level.23 The In addition to being protected by state statute, in principle is recognized in state statutes and by state some states the right to inspect public records is pro- 24 courts. The Alaska Supreme Court declared: tected by the state constitution. The California state The cornerstone of a democracy is the ability of its people constitution, for example, creates a constitutional right to question, investigate and monitor the government. of access to public agency records and calls for strict Free access to public records is a central building block of construction of statutes limiting such access.30 Other our constitutional framework enabling citizen participa- states with constitutional protection of right of access 31 32 33 tion in monitoring the machinations of the republic. Con- include Florida, Montana, and North Dakota. versely, the hallmark of totalitarianism is secrecy and the 25 foundation of tyranny is ignorance. 1. Effect of 9/11 Attacks Yet as important as the public's right to know is, it Following the 9/11 attacls, a trend developed at both must be balanced against other interests, such as per- the federal and state levels toward keeping more gov- sonal privacy, the need for commercial confidentiality, ernment information secret.34 Both the executive and and--increasingly--security. Balancing security and legislative branches of the federal government sup- disclosure considerations requires answering a funda- ported increased levels of secrecy. mental question:26 when does the public's right to know In particular, the Bush administration moved away outweigh the potential danger of releasing the informa- from the prior FOIA presumption of disclosure under tion in question? Or vice versa, as the phrasing of the the Clinton administration35 and under Supreme Court question may indicate the presumption of the ques- tioner: disclosure or nondisclosure. 28 Section 18.42, 49 C.F.R. pt. 18--Uniform administrative 1. Disclosing Public Records requirements for grants and cooperative agreements to State and local governments, http://edocket.access.gpo.gov/cfr_2008/ The presumption under FOIA27 and most state public octqtr/pdf/49cfr18.42.pdf. See II.C, Procurement and Contract records acts, embodying the principles described above, Management Issues, infra this digest. is one of disclosure. The obligation to disclose informa- 29 E.g., Florida Public Records Statute, §§ 119.01 et seq., tion under public records law exists so long as the pub- www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Stat lic agencies retain covered public records. Thus the ob- ute&URL=Ch0119/titl0119.htm&StatuteYear=2008&Title=%2 ligation is affected by federal and state laws requiring D%3E2008%2D%3EChapter%20119. See III.D., Record Man- that public agencies retain public records for specified agement Laws, infra this digest. periods of time. For example, the U.S. Department of 30 Michaelis, Montanari & Johnson v. Superior Court, 44 Transportation (USDOT) imposes retention and access Cal. Rptr. 3d 663, 667, 38 Cal. 4th 1065, 136 P.3d 194 (Cal. requirements for records related to awards to recipi- 2006), citing CAL. CONST. art. I, § 3, subd. (b). 31 FLA. CONST. art. I, § 24, www.myflsunshine.com/sun.nsf/sunmanual/AB22C5DD979202 22 70852566F30071D093. Kristen Elizabeth Uhl, The Freedom of Information Act 32 MONT. CONST. art. II, § 9 (preserving a right to examine Post-9/11: Balancing the Public's Right to Know, Critical In- documents "except in cases in which the demand of individual frastructure Protection, and Homeland Security, Comment, 53 privacy clearly exceeds the merits of public disclosure."), AM. U. L. REV. 261, 263, n.1 (2003), www.wcl.american.edu/ http://leg.mt.gov/css/Laws%20and%20Constitution/Current%20 journal/lawrev/53/uhl.pdf?rd=1 (accessed Mar. 4, 2009). 23 Constitution.asp. E.g., N.H. REV. STAT. ANN. 91-A:1 Preamble.--Openness 33 N.D. CONST., art. XI, § 6 (protects the right to protect pub- in the conduct of public business is essential to a democratic lic records unless otherwise provided by law), society. The purpose of this chapter is to ensure both the great- www.legis.nd.gov/constitution/const.pdf. est possible public access to the actions, discussions, and re- 34 cords of all public bodies, and their accountability to the peo- GINA MARIE STEVENS & TODD B. TATELMAN, PROTECTION ple, www.gencourt.state.nh.us/rsa/html/VI/91-A/91-A- OF SECURITY-RELATED INFORMATION, CRS Report for Congress 1.htm. RL33670, CRS-1 (2006), 24 www.fas.org/sgp/crs/secrecy/RL33670.pdf (accessed Mar. 4, E.g., Head v. Colloton, 331 N.W.2d 870, 87374 (Iowa 2009). 1983) (purpose of Iowa open records law: "to open the doors of 35 government to public scrutiny--to prevent government from Uhl, supra note 22, at 27274; 28587; GENEVIEVE J. secreting its decision-making activities from the public, on KNEZO, "SENSITIVE BUT UNCLASSIFIED" AND OTHER FEDERAL whose behalf it is its duty to act."). SECURITY CONTROLS ON SCIENTIFIC AND TECHNICAL 25 INFORMATION: HISTORY AND CURRENT CONTROVERSY, CRS Fuller v. City of Homer, 75 P.3d 1059, 1062 (Alaska Report for Congress, RL31845, CRS-23CRS-24 (2004), 2003). 26 www.fas.org/sgp/crs/RL31845.pdf (accessed Sept. 23, 2009); Mitchel A. Sollenberger, Sensitive Security Information UNITED STATES HOUSE OF REPRESENTATIVES COMMITTEE ON and Transportation Security: Issues and Congressional Op- GOVERNMENT--MINORITY STAFF SPECIAL INVESTIGATIONS tions, CRS Reports to Congress, RL32425, June 9, 2004, DIVISION, SECRECY IN THE BUSH ADMINISTRATION (2004); www.fas.org/sgp/crs/RL32425.pdf. David C. Vladeck, Symposium: Harnessing the Power of Infor- 27 5 U.S.C. § 552. mation for the Next Generation of Environmental Law: III.
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9 precedent.36 On October 12, 2001, the Attorney General issued a memorandum instructing federal agencies to issued a FOIA policy memorandum. The memorandum process FOIA requests for sensitive information in ac- urged agency personnel to exercise caution in making cordance with the Ashcroft Memorandum, that is, look- discretionary disclosures of information protected under ing for all applicable exemptions.42 FOIA and stated that the Department of Justice would On the legislative front, the Homeland Security Act 43 defend agencies' decisions to withhold information un- of 2002 (HSA) established two new mandatory exemp- der FOIA "unless they lack a sound legal basis or pre- tions to FOIA. First, under Title II of the HSA, the sent an unwarranted risk of adverse impact on the abil- Critical Infrastructure Information Act of 2002 (CIAA)44 ity of other agencies to protect other important exempted from FOIA disclosure certain voluntarily records."37 This was a significant change from the stan- submitted information, provided that the disclosure is dard under the Clinton administration, pursuant to accompanied by an express written or oral disclosure which the Department of Justice would only defend that it is being made voluntarily in expectation of pro- FOIA nondisclosures where the agency could reasona- tection under the CIAA.45 Second, under Title XVI, the bly foresee harm to a party protected by the exemption HSA amended the authorizing legislation for the TSA46 in disclosing the information.38 Federal agencies had to create an exemption from FOIA for certain informa- already removed information from Web sites in the tion obtained or developed in carrying out security un- 39 months immediately following the 9/11 attacks. Thou- der the Aviation and Transportation Security Act of sands more documents were removed from federal gov- 2001 (ATSA) or under Chapter 449 of Title 49. Unau- ernment Web sites after the White House Chief of Staff thorized disclosures are punishable by criminal fines, issued a March 2002 memorandum instructing federal imprisonment, or both, as well as by mandatory re- 47 agencies to review government information not only moval from office or employment. involving weapons of mass destruction, but also "other Although Congress had enacted FOIA exemptions information that could be misused to harm the security following the 9/11 attacks, the congressional stance on 40 of our nation and the safety of our people." In fact, the Bush Administration's "need to know" FOIA en- within a year of the 9/11 attacks, 13 federal agencies forcement eventually shifted. In the latter part of the and 3 state Web sites had blocked access to previously second Bush term, Congress enacted the "Openness available information.41 The Bush administration also Promotes Effectiveness in Our National Government Act of 2007."48 The OPEN Government Act specifically found that FOIA responses should be based on right to Access and Dissemination of Information: Information Access-- Surveying the Current Legal Landscape of Federal Right-to- know rather than on need to know.49 Know Laws, 86 TEX. L. REV. 1787, 1790 (2008), www.utexas.edu/law/journals/tlr/assets/archive/v86/issue7/vlad eck.pdf (accessed Sept. 18, 2009); Guinevere Jobson, On the Freedom of Information, 16 NAT. RESOURCES & ENV'T 139, 140 Public's Right to Proprietary Data, a Contribution to the SSRC (2002), discussing removal of information from agency Web Data Consortium for Media and Communications Policy 2 sites since September 11, 2001, www.abanet.org/environ/pubs/ (2007), nre/specissue/gidiereforrester.pdf (accessed March 4, 2009). In http://programs.ssrc.org/media/dataconsortium/RighttoAccess addition, these security concerns may have resulted in an ap- Memo0607.pdf (accessed Mar. 4, 2009). parent reluctance to post crisis communications or emergency 36 management plans. COMMITTEE ON THE ROLE OF PUBLIC Dep't of Air Force v. Rose, 425 U.S. 352, 96 S. Ct. 1592, 48 TRANSPORTATION IN EMERGENCY EVACUATION, THE ROLE OF L. Ed. 2d 11 (1976) (disclosure, not secrecy is dominant objec- TRANSIT IN EMERGENCY EVACUATION 82 (Transportation Re- tive of FOIA); U.S. Dep't of State v. Ray, 502 U.S. 164, 112 S. search Board Special Report 294, 2008), Ct. 541, 116 L. Ed. 2d 526 (1991) (FOIA establishes a strong http://onlinepubs.trb.org/Onlinepubs/sr/sr294.pdf. presumption in favor of disclosure). 42 37 Uhl, supra note 22, at 274. The Ashcroft Memo, reprinted by the Coalition of Journal- 43 ists for Open Government, Pub. L. No. 107-296, 16 Stat. 2135, Nov. 25, 2002. For a www.cjog.net/background_the_ashcroft_memo.html (accessed discussion of legislative history and competing policy argu- July 31, 2009). The memorandum is no longer available on the ments, see JOHN D. MOTEFF, CRITICAL INFRASTRUCTURE Department of Justice Web site. INFORMATION DISCLOSURE AND HOMELAND SECURITY, CRS 38 Report to Congress, RL31547 (2003), Uhl, supra note 22, at 271. 39 www.fas.org/irp/crs/RL31547.pdf (accessed Oct. 9, 2009). P. STEPHEN GIDIERE III, THE FEDERAL INFORMATION 44 Pub. L. No. 107-296, 16 Stat. 2135, Nov. 25, 2002, Subti- MANUAL: HOW THE GOVERNMENT COLLECTS, MANAGES AND tle B--Critical Infrastructure Information (6 U.S.C. § 131 DISCLOSES INFORMATION UNDER FOIA AND OTHER STATUTES 134). 35051 (2006). Reportedly much of the information was re- 45 posted by other groups. Nicholas Bagley, Benchmarking, Criti- Id. § 214(a)(2), codified as 49 U.S.C. § 133(a)(2). 46 cal Infrastructure Security, and the Regulatory War on Terror, Section 101 of the Aviation and Transportation Security 43 HARV. J. ON LEGIS. 47, 68 (2006). Act (ATSA), Pub. L. No. 107-71, 115 Stat. 597, Nov. 19, 2001, 40 Uhl, supra note 22, at 272. codified as 49 U.S.C. § 114. 47 41 One Year Later: September 11 and the Internet, Pew Critical Infrastructure Information Act, § 214(f), codified Internet & American Life Project, Sept. 5, 2002, at 89, as 6 U.S.C. § 133(f); 6 C.F.R. § 29.9(d). See II.B.1, Federal Leg- www.pewinternet.org/~/media//Files/Reports/2002/PIP_9- islation, infra this digest. 48 11_Report.pdf.pdf (accessed July 31, 2009). See also Stephen Pub. L. No. 110-175, 121 Stat. 2524-2531, Dec. 31, 2007. 49 Gidiere & Jason Forrester, Balancing Homeland Security and See Vladeck, supra note 35, at 181921.
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10 Critics of the trend to increasing secrecy have argued 3. Disclosure of Bid/Contract Information that unnecessary restrictions on public access to infor- Competitive bidding of publicly-funded contracts for mation violates fundamental public policy principles of large purchases is generally required under both fed- open government. In particular, application of the SSI eral and state law57 and may be advised even where not designation has been seen as limiting citizen access to 58 required. The competitive bidding process is generally public safety information.50 intended to provide reasonable competition, thereby The Obama administration appears to be moving protecting the public against discrimination, cronyism, back toward disclosure, with the President issuing an or waste of public funds, and to ensure optimum public executive order on FOIA on January 21, 2009, stating benefits from the contracting process.59 As a California that the presumption is toward disclosure,51 and the court noted, because of the purposes of competitive bid- Attorney General following up with a memorandum to ding, "the public may have a legitimate and substantial all department and agency heads reminding them that interest in scrutinizing the process leading to the selec- the presumption is to openness, even where the law tion of the winning proposal."60 allows nondisclosure.52 The Attorney General's March Nonetheless, information may be kept confidential 19, 2009, memorandum specifically rescinded the At- for competitive purposes of the public agency until the torney General's Memorandum of October 21, 2001, bid/contract is awarded. Federal law prohibits disclos- which had in effect encouraged a presumption of non- ing bid or proposal information before the actual disclosure. It remains to be seen whether the Obama award,61 and state or local law may contain similar pro- administration's formal position on FOIA will have any visions. Certain contract information must also be effect on its interpretation of SSI requirements. withheld after award. For example, under the Los An- Mirroring the trend at the federal level, in the wake geles Administrative Code, the contents of proposals of the 9/11 attacks, many states have added security must be secured during the negotiations process so that 53 exemptions to their public disclosure laws, although proposers do not obtain pricing and other information apparently more on the theory that secrecy will in- about the competing bids during the negotiations proc- crease security than in response to suspicious requests ess. Such information is not disclosed until an award for information.54 According to an Associated Press recommendation is made.62 It can be argued that by analysis of state laws nationwide, of the more than postponing disclosure until after the award recommen- 1,000 laws that have been passed by state legislatures dation but before the final award, the public can scruti- to change access to information, more than twice as nize the award decision in full and in time to provide many of the measures further restrict access to infor- input to the decision-makers, thereby balancing the mation than make more information available.55 While need to know with the need to keep information other concerns such as identify theft and privacy of confidential.63 medical records are also at play, the concerns for secu- Of course, even once the contract is awarded, some rity have clearly been a driving force. The scope of some proposal information may be protected from disclosure. 56 of the exemptions has been criticized as overly broad. Traditionally, competitive information has been the primary concern in this context, but now confidentiality 50 E.g., Feb. 20, 2007, Comments of the Coalition of Journal- concerns extend to security issues. ists for Open Government to TSA NPRM on Rail Transporta- 57 tion Security, Docket No. TSA-2006-26514, E.g., OR. REV. STAT. 279C.335, Competitive bidding; ex- www.cjog.net/documents/TSA_Regulations_Comments.pdf ceptions; exemptions, www.leg.state.or.us/ors/279c.html. See (accessed Feb. 28, 2009); Looking for Sunshine: Protecting Your generally KEVIN M. SHEYS & ROBERT L. GUNTER, Right to Know, League of Women Voters, Jan. 2006, REQUIREMENTS THAT IMPACT THE ACQUISITION OF CAPITAL- www.lwv.org/Content/ContentGroups/Projects/OpennessinGove INTENSIVE LONG-LEAD ITEMS, RIGHTS OF WAY, AND LAND FOR rnment/40404_LWV_LoRes.pdf (accessed Sept. 29, 2009). TRANSIT (Transit Cooperative Research Program Legal Re- 51 Memorandum of Jan. 21, 2009--Freedom of Information search Digest No. 6, 1996). 58 Act, 74 Fed. Reg. 4683, Jan. 26, 2009, E.g., [Pennsylvania] Governor's Center for Local Govern- http://edocket.access.gpo.gov/2009/pdf/E9-1773.pdf. ment Services, Purchasing Handbook, downloading available 52 Office of the Attorney General, Memorandum for Heads of at http://www.newpa.com/get-local-gov-support/ Executive Departments and Agencies, Mar. 19, 2009, publications/index.aspx . 59 www.usdoj.gov/ag/foia-memo-march2009.pdf. Jennifer Jo Snider Smith, Competition and Transparency: 53 DOUGLAS F. GANSLER, REPORT OF THE OFFICE OF What Works for Public Procurement Reform. 38 PUB. CONT. ATTORNEY GENERAL ON THE PUBLIC SECURITY EXCEPTION OF L.J. 114 (2008), noting the importance of FOIA in providing THE PUBLIC INFORMATION ACT, App. B (2007), oversight of government contracting. 60 http://www.oag.state.md.us/Opengov/PIA_public_security_exe Michaelis v. Sup. Ct. of Los Angeles County, 38 Cal. 4th mption_report.pdf. See App. C: Exemptions to State Public 1065, 136 P.3d 194, 44 Cal. Rptr. 3d 663, 668 (2006) (citation Records/Freedom of Information Laws, infra this digest. omitted). 61 54 Beth Wade, Security Through Secrecy, GOVERNMENT 41 U.S.C. §§ 253b(f)(4), 253b(m), 423(a). 62 SECURITY MAGAZINE, Nov. 1, 2003, http://govtsecurity.com/ Michaelis, 44 Cal. Rptr. 3d at 666, citing § 10.15(f)(6) of mag/security_secrecy/index.html (accessed Feb. 26, 2009). the Los Angeles Administrative Code. 55 63 Tanner, supra note 20. See Michaelis, 44 Cal. Rptr. 3d 663, 38 Cal. 4th 1065, 136 56 Wade, supra note 54. P.3d 194 (Cal. 2006).
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11 A variety of contracts may cover security informa- or gain information about, a target without the need to tion. These include contracts to prepare employee physically access it."67 manuals and training materials that cover security re- It is important that agencies correctly characterize sponses, conduct vulnerability assessments,64 and pre- information: As discussed in this report, significant ef- pare or evaluate emergency response plans.65 In addi- forts are required to adequately protect designated se- tion, some contracts that do not directly cover security curity information, particularly SSI. Therefore, at- projects may require contractors to access system de- tempting to withhold nonsensitive information may sign documents that constitute SSI/restricted security impair efforts to withhold truly sensitive information.68 information: The range of persons who may request information Visual and textual architectural and engineering data are about requests for proposals or awarded contracts in- vital to understanding the core operations and structural cludes contractors, subcontractors, reporters, competi- components of transportation infrastructure. This infor- tors, citizens/activists, and persons with no legitimate mation may include information such as building or need for the requested information.69 For security pur- structure plans, schematic drawings and diagrams, secu- poses, the final category presents the greatest immedi- rity system plans, and threat analyses related to the de- ate danger, although any recipient of information could sign or security of critical infrastructure--all of which make further disclosure that could have security impli- may be of interest to terrorists and could be dangerously cations. In any case, state law may not allow the record misused by someone intending to cause harm to the sys- custodian to inquire as to the identity of the requestor tem or its users, employees, or the general public.... [D]esign documents are often copied and distributed for and/or the purpose for which the information is re- 70 use by architects, contractors, subcontractors, inspectors, quested. third-party reviewers, and others--all of whom need ac- There are several sources that can make unauthor- cess to blueprints, engineering schematics, and other ized disclosures of security information. Agency em- technical documents to be able to safely and effectively ployees may inadvertently or purposely make unauthor- 66 fulfill their responsibilities. ized disclosures. Contractors who have received security The FTA Security and Emergency Preparedness information, whether authorized or unauthorized, may Planning Guide defines sensitive information as "any make unauthorized disclosures, whether intentionally information that would allow a malicious actor to select, or from ignorance about their nondisclosure responsi- bilities. Subcontractors pose the same danger. And once 64 E.g., Use of contractors in conducting rail security as- an unauthorized disclosure has been made, each recipi- sessments: U.S. GOV'T ACCOUNTABILITY OFFICE, ENHANCED 67 FEDERAL LEADERSHIP NEEDED TO PRIORITIZE AND GUIDE BALOG, BOYD, & CATON, supra note 1, at 93. 68 SECURITY EFFORTS 45 (2005), TRANSTECH MANAGEMENT, INC., supra note 1, at 3. 69 www.gao.gov/new.items/d05851.pdf (accessed Mar. 31, 2009). Coalition of Journalists for Open Government, An Oppor- 65 See Use of Funds, § 1406(b), Pub. L. No. 110-53, 121 Stat. tunity Lost: Part I, An In-Depth Analysis of FOIA Performance 405407, 6 U.S.C. § 1135(b). E.g., Connecticut Commuter Rail From 1998 to 2007 (July 3, 2008), accessed Feb. 28, 2009, at Security and Emergency Preparedness Planning Study: Legal www.cjog.net/documents/Part_1_2007_FOIA_Report.pdf; Soci- Notice--Request for Letters of Interest--CSO Solicitation No. ety of Professional Journalists, Frequent Filers: Businesses 2059, www.das.state.ct.us/rfpdoc/DOT08/bids/2059.pdf (ac- Make FOIA Their Business, July 3, 2006, cessed Oct. 1, 2009). There has been some controversy to keep- www.spj.org/rrr.asp?ref=31&t=foia (accessed Feb. 26, 2009). ing emergency response plans confidential because of public See II.A.1, Overview of FOIA, infra this digest. 70 right to know and ability to respond to threats. See Comments E.g., Hawaii requires that requested information not sub- of the Silha Center for the Study of Media Ethics and Law on ject to disclosure exceptions be made available to any person TSA Interim Final Rule on Protection of Sensitive Security requesting it. HAW. REV. STAT. § 92F-11(b). In most circum- Information, July 16, 2004, http://www.silha.umn.edu/assets/ stances anonymity is allowed. Water Service Consumption pdf/silhacenterssicomments.pdf ; Uhl, supra note 22, at 3045. Data, OIP Op. Ltr. No. 90-29 (Oct. 5, 1990), TRB's Committee on the Role of Public Transportation in http://state.hi.us/oip/opinionletters/opinion%2090-29.pdf. Mary- Emergency Evacuation recommends making sanitized versions land: Superintendent v. Henschen, 279 Md. 468, 473, 369 A.2d of emergency evacuation plans public: 588, 561 (1977) (Maryland statute affords general right of ac- The committee believes that the public should be informed cess to any person, without need to show grievance or interest); about area emergency evacuation plans and how transit will be New Mexico: § 14-2-8(C), N.M. STAT. ANN. 1978 (requesters deployed in an emergency. An informed public, particularly spe- shall not be required to state their reasons for requesting the cial-needs populations, is critical to preparedness in an emer- records, although they must provide identifying information), gency incident. However, sensitive operational details should be www.conwaygreene.com/nmsu/lpext.dll?f=templates&fn=main- excluded from emergency planning documents and only "sani- h.htm&2.0; North Carolina: § 132[ ]6(b) (individual requesting tized" versions made publicly available. FEMA could provide a information not required to disclose reason for inquiry), template for suitable presentation formats as part of its guid- www.ncleg.net/EnactedLegislation/Statutes/HTML/ByChapter/ ance to state, local, and tribal governments. Chapter_132.html; Texas: A & T Consultants Inc. v. Sharp, COMMITTEE ON THE ROLE OF PUBLIC TRANSPORTATION IN 904 S.W.2d 668, 676 (Tex. 1995) (government cannot look at EMERGENCY EVACUATION, THE ROLE OF TRANSIT IN the motives of requester of information); Washington: EMERGENCY EVACUATION 82, Transportation Research Board Livingston v. Cedeno, 164 Wash. 2d 46186 P.3d 1055, 1058 Special Report 294 (2008), (Wash. 2008) (en banc) (state agency must respond to all public http://onlinepubs.trb.org/Onlinepubs/sr/sr294.pdf. disclosure requests without regard to requester's status or 66 TRANSTECH MANAGEMENT, INC., supra note 1, at 34. motivation).