I've made a lot of requests under the Michigan Freedom of Information Act as part of writing the FOIA Friday series, and I've had requests rejected a number of times. This week's mail brings a new rejection notice, one that I've never seen before. I asked for a document which is exempt from disclosure because of laws passed after September 11 that exempt documents which describe critical infrastructure, and the plans, policies, and procedures for keeping this critical infrastructure safe.

This schematic drawing of a dam on the Huron River, first published in 1917 and now in the public domain, would now fall under state laws exempting disclosure of critical infrastructure information passed in 2002.

American Hydroelectric Practice, 1917; via Google Books

What I asked for

The City of Ann Arbor is required by the Federal Energy Regulatory Commission to file an emergency response plan for the dams that it manages. I asked for the emergency response plan for the Barton and Argo Dams.

The design of an emergency management plan for dams is specified and standardized. It contains a standard set of sections designed to be disseminated to emergency operations coordinators, law enforcement, and other units of government who are responsible for carrying out emergency activities in the case of dam failure. The list is broader than you might expect; in particular, it is anticipated that the National Weather Service would have a copy of at least parts of the plan, in order for it to provide flood alerts and notification in the case of a dam disaster.

The text of the law

The Michigan Public Service Commission describes the new section of the law; emphasis attached.

13(1)(y). Records or information of measures designed to protect the security or safety of persons or property, whether public or private, including, but not limited to, building, public works, and public water supply designs to the extent that those designs relate to the ongoing security measures of a public body, capabilities and plans for responding to a violation of the Michigan anti-terrorism act, chapter LXXXIII-A of the Michigan penal code, 1931 PA 328, MCL 750.543 to 750.543z, emergency response plans, risk planning documents, threat assessments, and domestic preparedness strategies, unless disclosure would not impair a public body's ability to protect the security or safety of persons or property or unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance.

The law dates from 2002, and it was enacted a part of a national update of freedom of information laws in the wake of 9/11, intended to prevent disclosure of information that would enable domestic terrorists to plan attacks.

Oversight of public infrastructure

When these laws were put into place, there was concern expressed that the increased measures to provide protection for this information might lead to a culture of secrecy and impede the public's ability to get insight into the operations of critical infrastructure. The Coalition of Journalists for Open Government report on critical infrastructure, prepared in 2004, spells out the problem:

We are concerned that DHS, in its desire to create security partnerships with the private industries that own or control 85 percent of this nation’s critical infrastructure, may inadvertently cause public oversight to be ceded, resulting in unintended and unresolved dangers in areas that have nothing to do with terrorism.

The general public interest in review of emergency management planning

The general public interest in providing a review of emergency management operations is best illustrated by a case in which emergency response failed. An Enbridge pipeline along the Kalamazoo River near Marshall Michigan led to a release of nearly 819,000 gallons of oil. The timeline of the spill operations, produced by the Michigan Messenger, shows that initial operations were hampered by responders who were looking for a natural gas leak, and did not identify the source of the pungent fumes as crude oil until 18 hours after the initial report.

The specific local interest in dam emergency planning

The Huron River flooded in June, 1968, wiping out the Dixboro Dam, causing millions of dollars in damage, washing out railroad tracks downstream and flooding out apartments. A 2008 Ann Arbor News story describes residents memories of the flooding.

Even in the absence of catastrophic flooding, rapid rises and falls on the Huron River downstream of Argo Dam are of concern to the security or safety of persons who are fishing and wading in the Huron River. A June 2009 Ann Arbor Chronicle story describes fishermen who had to scramble out of the water after a rapid rise and fall in water levels downstream of Argo.

When the control system at the Argo Dam failed in January, causing water levels downstream to rise and fall rapidly, it took more than 24 hours for the City of Ann Arbor to notice and almost four days to regain control over water levels. Had this control failure occured during the flood season, it is reasonable to ask which emergency action plans would be activated to notify the public of the downstream danger.

Balancing tests and FOIA

The second part of this section of the FOIA law describes a balancing test for disclosure of materials that are otherwise exempt. Emphasis added:

unless disclosure would not impair a public body's ability to protect the security or safety of persons or property or unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance.

Writing an appeal to this kind of rejection is not as simple as it might be, since you have to make the case that the information that you want to have does not endanger the public and that there is a compelling interest in disclosure.

In general, Michigan Freedom of Information Act requests do not require the person asking to specify why they want the records that they are asking for. You can request a police report, an autopsy, an record of a bedbug inspection or a work order for a damaged sign or pothole repair and not have to explain why you want the records. In this case, however, you need to explain yourself.

Ironically, considerable details about the design and construction of dams along the Huron River have been in the public domain for years. American hydroelectric practice: a compilation of useful data and information on the design, construction and operation of hydroelectric systems, from the penstocks to distribution lines, a 1917 publication, has detailed drawings of dam designs originally build along the Huron River by the Eastern Michigan Edison Company.

The control of flow of water over the dam at Argo has failed before - catastrophically in 1968, and in small but significant ways in recent years. There is presumably a plan in place for noticing control failures, dealing with them, and informing the public of clear and present dangers when dam operations lead to unexpectedly high flows of water downstream. The anti-terrorism laws passed in 2002 make it just a bit harder to conduct public oversight of this planning and operations of critical infrastructure.

Edward Vielmetti writes the FOIA Friday column for AnnArbor.com. Contact him at edwardvielmetti@annarbor.com.