[GSDI Legal Econ] Circumvention of Open Access to Geodata through Homeland Security Claim

[Harlan Onsrud]

Subject: We knew it was coming...
From: Jim Campbell <campbell at spatial.maine.edu>
To: Harlan Onsrud <onsrud at spatial.maine.edu>

>From http://www.rcfp.org/news/2005/0712-foi-utilit.html

Utility uses homeland security law to keep data secret
     *
The federal Department of Homeland Security has designated a New Jersey
town's electronic mapping data to be "critical infrastructure information"
protected from public disclosure.

July 12, 2005  ·   The governing body of a New Jersey municipal utility has
circumvented an open records request for electronic mapping data by
submitting the data as secret "critical infrastructure information" to the
U.S. Department of Homeland Security. The department approved the utility's
submission as CII in a June 5 letter.

By so designating the geographic information system data, the Brick Township
Municipal Utilities Authority may withhold the information from the public,
including New Jersey resident R. Bradley Tombs who requested it in 2003. The
authority's original mission was ensuring the operation of the city's water
and sewer systems and to bill customers. In the early 1990's, the agency
also assumed control of the township's electronic mapping system which
manages land parcels for property tax purposes.

Though willing to release paper copies of its maps for $5 apiece, the agency
refused to provide electronic access to them. When confronted with Tombs'
open records request, the utility voluntarily submitted the data to federal
homeland security officials, and petitioned for and won its designation as
protected information under the Critical Infrastructure Information Act of
2002.

Although the Homeland Security Department defines CII, it allows submitters
to use their discretion in determining what qualifies. DHS defines CII as
information relating to the security of critical infrastructure -- systems
and assets so vital to the nation's well-being that their incapacity or
destruction could jeopardize security, public health or safety.

The CII Act protects voluntary submissions of CII from freedom of
information disclosure so long as the information is not customarily in the
public domain. Kevin Donald, the municipal authority's executive director,
said in an affidavit attached to the submission to the Homeland Security
Department that the "totality of the [Brick Township] GIS database, in a
digital format, is information that is not customarily in the public
domain."

Tombs disagrees with that representation and said he believes that the GIS
information's status as a public record means that it is in the public
domain. The municipal authority "doesn't have the authority to make a
determination if it's a public record,'' he said. "If it's a public record
then it's in the public domain," he said, adding that "the fact that they
offered all the same information in paper form also proves that it's in the
public domain."

"Now the question is whether or not the Department of Homeland Security will
actually have a backbone and investigate" the veracity of the agency's
assertions, he added. "I've asked what the appeals process is, and there is
none," he said.

Steven Aftergood, project director at the Federation of American Scientists,
noted that CII confidentiality is meant to encourage the voluntary
submission of infrastructure security plans to the Homeland Security
Department, especially by private industry. He added that the agency "seems
to be using this statute as a tactic to evade open government laws more than
as a way to support security.