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Secrecy Now.  Secrecy Tomorrow.  Secrecy Forever?   

For several years, Rivers Alliance has been concerned by Connecticut water secrecy laws that were passed subsequent to the Al Qaeda attacks of 2001.   These laws, written by the Connecticut Water Works Association (CWWA), appear to be the strictest in the nation, and, in several respects, stricter than federal law.  Basic information, previously widely accessible, has been withheld, not just from groups like Rivers Alliance, but also, on occasion, from the US Geological Survey and state agencies. This blackout of basic information on water resources was intended to foil terrorists but also foils research, policy work, and advocacy litigation.      

 River Alliance began requesting material under Freedom of Information (FOI) law in 2009, and to file complaints over long delays and extensive redactions in 2010 and 2011.    The FOI Commission created three dockets, the first of which has been heard and decided.   (See below for a report on the Hearing Officer’s ruling in the Rivers Alliance complaint.)

 Unfortunately, there isn’t much left of FOI law with respect to water.  Water companies have more right to keep secrets in the name of security than is accorded nuclear power plants, transportation systems, chemical manufacturers, or other facilities of concern.  There was no legislative discussion as to why water would be more of a target than other infrastructure. The most restrictive language was inserted into a budget implementor bill for 2003.  Budget implementor bills are always done at the last minute, and sometimes contain provisions that have nothing to do with the budget.

Based on the Hearing Officer’s ruling in the first RA docket, and the decision of the FOI Commission, here is the law.  The dominant arguments were from the Attorney General’s Office, which assigned an Assistant Attorney General to defend the state’s redactions of material sought.    Although the AG’s office has expressed interest in reforming water-secrecy statutes, in this litigation the AG took the hardest position among various possible interpretations of the law. 

 The best hope for a small breakthrough to sunlight was the request by Rivers Alliance that the state consider releasing documents sought by the public when the information is actually already in the public domain.  The Department of Public Works in the past had shown some inclination to acquiesce in this request. 

 But the Assistant Attorney General (AAG) opposed such releases, in part because the law does not say anything about an exception in such cases.  In addition, the AAG explained to the Commission, it would put an unfair burden on public agencies to have to research whether information, such as the name of a reservoir, is available on the internet.  Evidently, it is less burdensome for our agencies to redact every name of every reservoir in water utility documents than to go to Google and type in “CT reservoirs,” and see what’s there. 

 According to the AAG, water utilities may withhold from the public all information in their water supply plans and other records relating to the names of their reservoirs and well fields; how much water they have where; the quality of that water; the condition of their pipes and holding tanks; where they plan to run water mains; where they own land; and so forth. 

 At this time, the law is that water utilities may withhold any information requested by the public that might pose a safety risk to water-company property, including equipment and appurtenances.  Risk includes risk of petty vandalism.  It is not relevant whether there is or is not a risk to the public health and safety.  It is sufficient to state that utility property might be damaged.  In fact, even if secrecy were demonstrably shown actually to endanger the public, that would not justify requiring the utility to release information. Based on legal decisions so far, no balancing is required between the public welfare and the welfare of the utility.  The latter, technically, is what is protected, not public health and safety. 

The secrecy protections apply not only to a wide range of information in water utility documents, they apply to information about water utilities.  Thus, Rivers Alliance requested a list of future water sources prepared by Department of Public Health for a report to the legislature. This is essential information for water planning. 

Consistency in application of the law is not required.  A company can choose to keep confidential information that other companies reveal.  A company can reveal information to one group of people and deny it to another. 

Actually, Rivers Alliance reads the statute to say that secrecy may be invoked only when there is a “reasonable” fear that release of information could pose a risk to the utility..  Also, it appears to say that secrecy rights apply only to “critical” infrastructure.  At this point, however, there is at best a very low standard for reasonableness.  And all infrastructure apparently is critical.  No distinction has been drawn between critical and non-critical infrastructure.

In the hearing on the first Rivers Alliance docket, acceptable evidence for reasonable fear may be based on articles seen on the internet, on intuition, or on confidential statements made by government authorities..  These authorities need not be named, their statements cannot be detailed, their sources are also secret. 

Counsel for the Department of Public Works (DPW) and others asserted that utility may have a reasonable fear of enemy attack but still not take any take any steps to warn the public..  In withholding information, the state or a utility can give as a reason an unsourced report that an enemy seeks to poison, say, a particular reservoir.  But there is no requirement for the state to inform the public of the risk, so that people might, for example, stock up on bottled water.  Quite the contrary, according to the present interpretation of the law, the utility and state agency can refuse to release any information at all relating to the reservoir, including which customers are served by that water source.  Counsel for DPW said that he believed it was the FBI’s job to warn the public.

 There has never been a threat against or attack on a Connecticut water company.  But, still, Rivers Alliance agrees that security is an important aspect of water management, Rivers Alliance has no interest in public disclosure of the details of true security.  Based on the few security breaches or possible security breaches involving water known to have occurred elsewhere, the most important of these defenses probably is cyber-security (and we are not doing a very good job of it).  Hostile present or past employees are always a risk, and security-minded organizations use a range of technologies to monitor workers, even down to the keystrokes on company computers.   Smart and sophisticated human intelligence can abort enemy attacks.   Least effective against terrorists are special gates and locks, much less trying to hide the entire water supply infrastructure from the public.  In fact, many security experts advise working with the public as an ally in the effort to protect water resources. 

Rivers Alliance has two more dockets pending that might clarify the law further, although it is doubtful the outcome will be more thoughtful..  When the first docket came before the members of the commission, they seemed unfamiliar with the submissions, and even had to ask which way the hearing officer had ruled.  Upon ascertaining that hearing officer had denied the Rivers Alliance complaint, the commission immediately voted in favor of the hearing officer, unanimously and without further discussion.

Probably the most productive avenue for reforming these secrecy laws to something more effective and sensible is to pursue a change in the statute..   But the climate for any return to a more open process is not favorable.  In fact, while some utilities are willing to be completely open, others have evidenced interest in limiting public disclosure even further.

Meanwhile, water policy work, such as drafting the long-awaited streamflow regulation, proceeds in a sort of law-free spirit, with people discussing data that is not supposed to be public.  Insiders get to do this.  But Rivers Alliance would like to see non-insiders, ordinary Connecticut residents, once again able to research water company documents relating to the quantity and quality of water supply. The water, after all, belongs to these residents. 

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WATER SECRECY UPHELD IN FOI DRAFT DECISIONN

In a draft decision issued on March 29, 2011 Freedom of Information Commission Hearing Officer Clifton Leonhardt ruled in favor of the contention of water utilities and the state Department of Public Works that the public may be denied access to almost all information relating to water companies’ facilities and operations.  In legislation dating from 2003-2003, written primarily by the Connecticut Water Works Association, water companies evidently have obtained sweeping exemptions from the requirements of the Freedom of Information Act.  In the course of working on water-related issues such as mining in in water company lands, streamflow regulation, and controversial diversions, Rivers Alliance has requested to review various water company documents, including water supply plans.  These were documents of the type used to create the flow management plans for the Shepaug River in Litchfield County and the Mill River in Hamden and New Haven.  In 2009, Rivers Alliance of CT began to challenge the heavy redactions in requested documents. 

The FOI Commission held two days of hearings on requests from Rivers Alliance for water supply plans and other water-related documents from

Wallingford Water Department, Heritage Village Water Company, United Water, and others.  Some documents had been delivered; some were not.  In the documents delivered, deleted information included names and addresses of reservoirs, location of other water sources, most infrastructure information, data on how much water is available to the utility, and odd facts such as the location of an e coli spike and information in the condition of the interior of water tanks. 

The inspiration for the original legislation was fear of terrorist attacks.  But the Attorney General’s office pointed out that the legislation as written does not address only public safety, but also the safety of the water company, including equipment and appurtenances.    

The draft decision will be considered by the full Commission on April 13.   

 PRESS RELEASE                                                            January 24, 2011

CHALLENGE TO WATER SECRECY LAWS

CONTACT:

Margaret Miner at 203-788-5161 (mobile); or rivers@riversalliance.org

LITCHFIELD --  On February 25, Rivers Alliance of Connecticut will ask the Freedom of Information Commission to rule on the little understood and convoluted process by which documents concerning water utilities are being withheld and redacted by state agencies in consultation with utilities.  These vital documents concern service areas, system capacities, transfer agreements, ability to release water downstream, and so forth.  The statutory amendments that exempt water utilities from key portions of the Freedom of Information Act passed with almost no public discussion in the two years following the attacks on the World Trade Center and the Pentagon.  While well-intentioned, these amendments, together with provisions to protect financial and business information, have resulted in sweeping claims that it is  essential to keep secret a great deal of vital data concerning the state’s water supply. 

The new laws, as interpreted to this point, almost entirely block the sort of citizen review of water service that in 2000 and 2001 led to reforms in water management on the Shepaug River in Litchfield County and the Mill River in New Haven County.  The Shepaug River case, for example, started with ordinary citizens who saw that the river was running extremely low summer after summer.  They were able to review water planning documents available to the public to ascertain the reason for low flows and the amount of excess water available to the supplier (the Waterbury Water Department) to relieve the impairment of the river.  This led to litigation and a restorative flow-management plan.    

This kind of citizen scrutiny of water use can now be blocked or delayed by months or years.   Rivers Alliance has submitted several complaints to government agencies, including the Freedom of Information Commission (FOIC).  The FOIC has merged two complaints into one docket that will be heard on February 25 at 11 a.m.  A third complaint is awaiting a docket number. 

The secrecy laws have been especially troublesome during negotiation of the pending state streamflow regulation because independent verification of many utility claims is now difficult or impossible.  Even the US Geological Survey has been denied science data because USGS would not agree to keep it secret. 

The complaint that will be heard on February 25 relates to requests from Rivers Alliance to view the water supply plans of two of the many utilities that gave testimony but little detail in opposition to the regulation.  The companies, which were chosen for technical reasons (for example, one is public and one is private), Wallingford Water and Heritage Village Water Company in Southbury.  Water supply plans are the basic documents prepared by utilities to enable the state to safeguard both water supply and the natural resource. They give a complete profile of a utility:  available supply, current and projected demand, conservation measures, and other management efforts.   After many months, Rivers Alliance received redacted versions of the plans, and we are challenging most of the redactions.

The pending complaint relates to a request to see a consultant’s study done for Wallingford on the municipality’s water system’s safe yield.  This study was cited as the basis for an estimate that it would cost $10 million for Wallingford to comply with the proposed streamflow regulation.  Rivers Alliance is trying to ascertain how this was calculated and whether utilities use the same or different means of estimating safe yield.  The question of preserving safe yield has become a key issue in ongoing negotiations relating to the flow regulation.

The attorney representing the state in the February 25 hearing will be appearing for the Department of Public Works (DPW), although the material was originally requested from the Department of Public Health (DPH).  One interpretation of the law is that DPH only does what DPW requires in the way of redaction.  The respondent in the pending request for the Wallingford safe yield study will be the Department of Emergency Management and Homeland Security.  For some reason, the statutes require that a request to a state agency go to DPW, while the same request for the same document addressed to a municipality goes to Homeland Security. 

The goal of Rivers Alliance and most water company representatives is to identify what security measures yield a net gain in water safety and to be sure such measures are in place.  We believe that effective security is expensive and challenging, but also that it is consistent with allowing the public to ask questions of their utilities and to get informed answers. 

We would be happy to provide examples of redactions and to elaborate on this tangled issue.  We can also give contact information for people in the water business and at the state agencies who have been trying to find an answer to the various problems raised by the security laws. 

Margaret Miner, Executive Director

Rivers Alliance of Connecticut PO Box 1797 7 West Street, 3rd Floor Litchfield, CT 06759 860-361-9349 rivers@riversalliance.org www.riversalliance.org