Greenpeace denied right to names of de-tiered CFATS facilities
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May 07, 2018
Greenpeace denied right to names of de-tiered CFATS facilities

A 6-year effort by Greenpeace to obtain information about facilities removed from the high-risk lists developed by the Department of Homeland Security (DHS) under its Chemical Facility Anti-Terrorism Standards (CFATS) was turned back by a judge of the U.S. District Court for the District of Columbia.

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Greenpeace requested the list in May 2012 under the federal Freedom of Information Act (FOIA). After several years in which DHS officials deliberated over the request, 127 pages of records were released to Greenpeace. However, the records were so heavily redacted, it was not possible to actually identify facilities on the pages. Greenpeace continued to press the DHS for more complete information and was told that if it was not satisfied with what it had received, it should file suit. In March 2017, Greenpeace did so.

U.S. District Judge Timothy J. Kelly, a President Donald Trump appointee approved by the Senate 94 to 2, agreed with the DHS that releasing the information Greenpeace sought “could reasonably be expected to endanger the life or physical safety of any individual,” and therefore, the DHS was exempted from disclosing the information under the FOIA.

Tiering and de-tiering

Created by Congress in 2006, the CFATS authorizes the DHS to determine whether chemical facilities present “a high level of security risk” because of a potential terrorist attack that could result in significant adverse consequences for human life or health, national security, or critical economic assets. Facilities with screening threshold quantities (STQs) of dangerous chemicals or chemicals of interest (COIs) are placed into one of four high-risk tiers and must develop security plans. CFATS facilities that eliminate their COIs or reduce the amounts of COIs below the STQs are de-tiered; that is, they are no longer subject to the CFATS.

Safety of any individual

Faced with Greenpeace’s request, the DHS claimed that a number of exemptions under the FOIA allowed certain information to be withheld. Mainly, the DHS stated that the redactions were legal under FOIA Section 7(f), which allows a federal agency to deny a disclosure request if release of the requested information might endanger the safety of any individual.

Greenpeace disputed DHS’s position in several ways. For example, Greenpeace suggested that facilities that no longer have COIs at or above STQs are no more dangerous than thousands of other facilities that are unregulated by the CFATS. Greenpeace also asserted that much of the redacted information is already available to the public under other federal programs, such as the Clean Air Act’s Risk Management Program and the Emergency Planning and Community Right-to-Know Act’s Toxics Release Inventory Program.

Furthermore, said Greenpeace, much of the data it sought could be found by searching the Internet, phone books, tax records, or other public databases or records; direct observation; or engineering or other analysis of information sources that are lawfully disclosed or required to be disclosed. And, said Greenpeace, releasing the information should not pose a risk to any individual because the facilities are removed from the risk tiers and, therefore, are no longer high risk.

Strategic insights made public

None of these arguments convinced Kelly. For example, he noted that just because a facility did not have COIs in STQs, they could still possess COIs in amounts that terrorists could use to harm individuals. Also, said the judge, revealing the names of de-tiered facilities would be dangerous in at least two respects.

First, it would provide terrorists with valuable insight into how the U.S. government, including its intelligence services, assesses the risk of attacks on chemical facilities in this country. Making strategic insights about national security matters available to the general public (including our country’s enemies) has the inherent potential to cause harm, said Kelly.

Second, such revelations would effectively identify de-tiered facilities as soft targets for terrorists. The DHS does not require de-tiered facilities to implement security measures under the CFATS. Releasing the lists would thus allow terrorists to adjust their aim to focus on the very facilities that the government has decided are unlikely to be targeted.

Furthermore, said Kelly, facilities regularly change their amounts of COIs; therefore, facilities may fluctuate on and off DHS’s tiers. The FOIA requests for the same information can be repeated. In other words, whenever a facility on an earlier de-tiered list disappears from a later list, it effectively means the facility is once again high risk.

Not a balancing test

Greenpeace also argued that the benefit of disclosing to the public the identity of de-tiered facilities would benefit the public because such facilities would be more motivated to eliminate COIs from their inventory. This misses the mark, said Kelly.

“Exemption 7(F) merely requires the government to show ‘a reasonable expectation of endangerment’ if the records are released,” Kelly wrote. “It is not a ‘balancing test’ that requires the agency to weigh that danger against possible benefits of releasing the information. Therefore, DHS is not required to show that risks to human life and health from potential terrorist attacks outweigh the possibility that withholding the information might inhibit the development of best practices by the private sector.”

Kelly’s opinion in Greenpeace v. DHS is here.

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