In other communities, FERC has applied its CEII policy in ways that have prevented some city officials -- including elected representatives -- and the public from seeing certain information regarding risk assessments and safety...or required the signing of a non-disclosure agreement in which those who view what FERC allows pledge not to disclose what they see.
FERC has refused to allow the Mayor of Fall River, MA (one of several east coast communities confronting a proposed LNG facility) an opportunity to see such information unless he agreed to submit to such a non-disclosure agreement...which he has pointedly refused to do.
FERC's web site indicates CEII is "information concerning proposed or existing critical infrastructure (physical or virtual) that relates to the production, generation, transmission or distribution of energy; could be useful to a person planning an attack on critical infrastructure; is exempt from mandatory disclosure under the Freedom of Information Act; and gives strategic information beyond the location of the critical infrastructure."
FERC has promulgated rules concerning CEII via two administrative rulemakings, publicly cited on the agency's web site, along with procedures for handling requests for CEII under the federal Freedom of Information Act (FOIA).
The request by the CA group to LB's Harbor Department was made under the CA Public Records Act, a state freedom of information provision that CA voters incorporated in state constitution in a November 2004 ballot measure.
The CA Public Records Act allows (but does not require) a city agency to withhold information if it falls within certain exceptions to disclosure. CA Gov. Code §6254 states that (except as provided in two other sections) nothing in the CA Public Records Act "shall be construed to require disclosure of records that are" [under §6254(k)] "Records the disclosure of which is exempted or prohibited pursuant to federal or state law..."
Public Records Act requester Boyd commented to LBReport.com, "What the City is doing is using FERC's rules to block disclosure under a CA law that voters recently made part of the CA Constitution."
The other Public Records Act provision, section 6254(a), is a "catch-all" section that allows (but does not require) a city agency to withhold "Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure." The determination of whether the records "clearly outweigh the public interest in disclosure" is presumably left to the City of LB, not FERC.
LB activist and LNG project critic Bry Myown said she believes the City's response is charting a collision course with the City's disclosure duties under the CA Environmental Quality Act (CEQA). "No one has seriously discussed how LB is going to reconcile what CEQA requires with what FERC claims," Ms. Myown said, adding:
"A recent study ordered by FERC from Sandia Laboratories purports to model what might happen in the event of a terrorist attack...but the assumptions Sandia used -- for example, what kind of weapon an attacker might use -- are classified. Therefore, the public has no way to satisfy themselves regarding whether Sandia's assumptions, and consequently their results, are valid."
In March 2004, the Port of LB's Managing Director of Development, Geraldine Knatz Ph.D. assured a League of Women Voters forum that a Port-commissioned "independent risk analysis" of the LNG project would be "totally independent of the [risk] analysis that we're doing with FERC" and there's really going to be three risk analyses done of this project: the one that the applicant did as part of their application; the one that the Port and FERC are doing together that's going in the Environmental Impact Report; and the one that the Port has decided that we want to do just independently..."
However, the policy enunciated by the City indicates that detailed information requested under CA law by the public -- and potentially city lawmakers -- regarding preparation of the Port of LB's "independent risk analysis" is being treated as a practical matter as subject to the same FERC CEII rules as FERC's study.
Ms. Myown said, "I certainly do understand that there's a terrorist threat to the nation, but how to deal with that has been determined by the appointed staff of one federal agency whose purpose is not homeland security but energy procurement."