A bill to broaden the D.C. Freedom of Information Act exemption for critical infrastructure information got a hearing by the D.C. Council Government Operations Committee Oct. 21. At the hearing, Robert Becker, the D.C. Pro Chapter's freedom of information chair, asked the committee to narrow the exemption considerably.
Bill 20-505, introduced at the D.C. Public Service Commission's request, proposed amendments to FOI Act Exemption 10 and four new definitions, including a very broad "cyber attack" definition. It argued that in reviewing utility rate-increase applications it needs to examine plans for buildings, distribution facilities and control systems. One of its main concerns is preventing disclosure of records related to utility computerized control systems. If such documents became public, terrorists could use them to attack electric, gas, communications and other vital services, but current law does not permit the Commission to withhold them in response to a FOIA request.
After meeting with PSC commissioners and the Office of People's Counsel, the D.C. Pro Chapter and the D.C. Open Government Coalition agreed that Exemption 10 needs to be amended, but they opposed the proposed definitions out of concern that many government agencies would invoke them to withhold records of significant public interest that are unrelated to critical infrastructure. They said government agencies could cite the "cyber attack" definition in response to virtually any request for information about government computer systems. Access advocates noted that the federal FOI Act, the Maryland Public Information Act,and the Virginia FOI Act do not include such sweeping exemptions.
Government Operations Committee Chair Kenyan McDuffie said he planned to move a bill soon, but his staff will meet with proponents and opponents of Bill 20-505 to seek consensus on the scope of the exemption. McDuffie initially intended to introduce the bill at the Council's early October legislative session as an emergency measure, without a public hearing. Had he done that, the exemption would have required only one vote by the full Council and would have taken effect immediately after the mayor signed it. After Coalition President Kathy Patterson informed McDuffie that the Coalition and the Chapter opposed a similar measure in 2012, the chairman withdrew the emergency bill and scheduled the hearing.