In the aftermath of the 9/11 attacks, the state Public Service Commission installed a policy to restrict public access to maps and other documents that show the locations of power lines, natural gas pipelines and water supplies.
The intent of the policy is obvious — to keep sensitive information about utility lines out of the hands of terrorists. But critics say that despite good intentions, the policy conflicts with the state Freedom of Information Act. And even the man in charge of screening requests for utility maps, chief PSC counsel Richard Hitt, concedes the policy probably stretches the limits of the law. "We got a little concerned after 9/11 to turn over information regarding locations of utility plants," said Hitt, head of the PSC legal division. "The commission decided to tighten that up and screen requests through a common person. That person is me." Hitt said he, commission Chairman James Williams and executive secretary Sandra Squire devised the new informal policy. Unlike many commission actions, it was not approved by a formal order of the full three-person commission.
"I'm not sure it's even memorialized in a memo," he said, but after some checking, he found an April 2 e-mail from Squire to her staff, who field requests for information at the PSC's front desk on a daily basis. The memo says, in part, "Materials to be considered sensitive include, but are not limited to, the following:
"Emergency response plans, specific information on distribution systems, maps, blueprints regarding access to water supplies, electric and gas transmission lines, lists of hazardous materials, or any other critical infrastructure information. "I would ask that requests to view or for copies of security sensitive information be accepted only in writing and only from individuals with verified identification (i.e. valid driver's license). "If you are processing a request which contains such material, and/or the request is suspicious, it should be presented to Rick Hitt for review before releasing said information." In practice, Hitt said, the executive secretary's staff sends him an internal e-mail whenever it receives a request for sensitive information. "If it's someone I know, I'll say OK.
"Over 90 percent of the time it's lawyers checking on applications. The rest of the time it's the general public." Hitt recalled two occasions when he did not approve a request on the spot. "One time I got a call on a cell phone from Virginia. He was going to be in Charleston in four hours and wanted information on a gas utility — pipeline routes. It turned out it was someone interested in acquiring acreage in the area. "Another time we got an e-mail requesting all the access roads to gas pipelines in Southern West Virginia. We never got a follow-up. "I think by and large the policy has worked fairly well. The problem is, I think the process has bogged down a few times, once when I was on vacation. I mean, it's public information. We're just trying to have a little oversight." Perhaps, but that worries public right-to-know advocates like Dawn Warfield, president of the state chapter of the American Civil Liberties Union.
"When you're talking about secure information, asking people to identify themselves — that's probably not unreasonable," Warfield said. "The risk I see is they start to use this for anything, which they're not entitled to do under the Freedom of Information Act," she said. "Asking someone for an ID whenever they want access to public information should not be allowed. "I haven't looked at the PSC statutes to see if they have any special exemptions. There is a public meetings exemption for security matters, but not in the Freedom of Information Act. "You look at this and say 'Is this a rational policy?' I would say yes. But when you get an ID, do you match it against anything? If not, what's the point? We all know driver's licenses can be faked. "I guess the ACLU will say you're giving people a false sense of security. I think it's comforting to think they're doing something, but it's one more restriction on our freedoms. "A lot of things the government is doing in the name of national security are not necessary and are excessive. You have to balance the public safety with individual liberties. "I'm not as troubled by this as by the government looking at your library records. They already eavesdrop on your telephone conversations if you use a wireless or cordless phone. Those are the kind of abuses I'm more concerned about. Holding people incommunicado without charging them with crimes. Whether they're citizens or not, they still have rights." Terry Wimmer, a Pulitzer Prize-winning journalist who teaches at West Virginia University, was even more critical. "This was a fear of mine, coming out of 9/11, that we will have bureaucrats deciding what is public records," said Wimmer, who has researched freedom of information issues in West Virginia. "The law is clear," he said. "They [PSC officials] do not have the power to create secret or unwritten policies about what is open or not. A decision made upon a subjective standard of 'suspicious' is disturbing and goes against the basic tenets of an open society. "It sets up great issues of racial profiling and sets up huge issues of snowballs rolling of whose agenda is being served. If a bureaucrat does not want information being released, they can hide behind the suspicious clause. "A citizen should not have to hand over identification. It goes against the spirit of open information. "The fear of 9/11 was that terrorists would win and we would put locks on public information, and it seems like that's what we're doing. "Obviously I haven't seen this policy. It might be well intentioned. But it seems to go against the state's Freedom of Information law. There are specific exemptions and this doesn't seem to fit any. "I don't think it has legal legs to stand on. But of course it's going to take someone to take them to court to knock it down. We have to be more vigilant than a year ago. That just proves the terrorists won." Hitt acknowledged the policy may be on shaky legal ground. "This doesn't fit into any of the existing [FOIA] exemptions. We might be able to stretch it into one. Frankly, I think this is something the Legislature ought to take a look at." To contact staff writer Jim Balow, use e-mail or call 348-5102.