All the information the security of the nation permits: information law and the dissemination of air force environmental documents

Air Force Law Review, Spring, 2006 by Barbara B. Altera, Richard S. Pakola

   I. INTRODUCTION
  II. THE IMPORTANCE OF MARKING DOCUMENTS
 III. FOIA HISTORY AND BACKGROUND
  IV. FREEDOM OF INFORMATION ACT
   V. DoD CATEGORIES OF INFORMATION
  VI. FOIA EXEMPTIONS & ENVIRONMENTAL DOCUMENTS
      A. Exemption 1
      B. Exemption 2 ("High 2")
      C. Exemption 3
         1. Safe Drinking Water Act
         2. Clean Air Act
      D. Exemption 5
      E. Exemption 6
      F. Exemption 9
 VII. RELEASABILITY OF ECAMP/ESOHCAMP DOCUMENTS
      AND FINDINGS
      A. Pre-Finalized Data and Documents
      B. The Final Assessment Report
         1. Current Policy/Guidance
         2. Findings--Exemption 5
      C. ECAMP Data
      D. Release to Regulators
VIII. ELECTRONIC FOIA ISSUES
      A. Electronic Messages (E-Mail)
      B. Web Sites
  IX. NON-FOIA RELEASES OF ENVIRONMENTAL DOCUMENTS
      A. Litigation
         1. Release to DoJ
         2. Release to a Third Party During Environmental Litigation
         3. Release of Environmental Documents During FOIA
            Litigation
      B. Releases to the EPA, State, and Local Agencies
   X. MISCELLANEOUS ISSUES AFFECTING PROTECTION OF
      INFORMATION
      A. Contractor-Generated Documents and Attorney Comments
      B. Metadata: The "Hidden Threat" of Inadvertent Disclosure
  XI. CONCLUSION
  ATTACHMENT 1--CHECKLIST FOR PROTECTING ENVIRONMENTAL
                INFORMATION
  ATTACHMENT 2--SUGGESTED FOUO MARKINGS
  ATTACHMENT 3--SUGGESTED TRANSMITTAL LETTER LANGUAGE

I. INTRODUCTION

The Freedom of Information Act "springs from one of our most essential principles: [a] democracy works best when the people have all the information that the security of the Nation permits." (1)

The terrorist attacks of September 11, 2001 prompted the most substantial changes in the United States government since World War II. (2) One small but significant aspect of these changes has been the United States exercising more caution on what information is released under the Freedom of Information Act (FOIA). (3) This article focuses specifically on the release and management of Air Force environmental documents. These documents often deal with dangerous substances (such as Resource Conservation and Recovery Act (RCRA) (4) hazardous wastes) and installation critical infrastructure (such as wastewater treatment plants, which may be covered under the Clean Water Act (CWA) (5)). Because of this, many environmental documents can be deemed to contain "sensitive" information which could be used by terrorists to assist in the targeting of military personnel or property. In addition to information that falls squarely within the environmental area, information related to land use (such as information related to a base's Air Installation Compatibility Use Zone (AICUZ)) may also be sensitive and require withholding from release.

Air Force organizations generate myriad environmental documents, but only a small number of these are written for public release. Some are specifically prohibited by statute from being released, while others are required by statute or regulation to be released to certain state and local entities. Given the sensitive information that is included in many of these documents, they must be properly marked at the time of their creation in a manner that protects them from inadvertent release and anticipates whether the documents will be provided to a state or local entity or released to the public at large.

Section II highlights the importance of appropriately marking documents at the time of their creation. The brief history and background on freedom of information issues provided in Section III is followed by a general overview of the FOIA in Section IV. Section V explains the three categories of Department of Defense (DoD) information and how they relate to FOIA, with specific guidance regarding "For Official Use Only" (FOUO) information (6) provided. Section VI highlights the exemptions most likely to apply to environmental documents, and Section VII focuses on information from the environmental audit, addressing the releasability of Environmental Compliance Assessment and Management Program (ECAMP) /Environmental, Safety, and Occupational Health Compliance Assessment and Management Program (ESOHCAMP) documents and findings of non-compliance. Section VIII covers electronic FOIA issues related to e-mail messages and web sites, and Section IX covers non-FOIA releases--such as releases to the Department of Justice (DoJ), third parties incident to litigation, the Environmental Protection Agency (EPA), and state and local regulators. The final section highlights miscellaneous issues that may affect the protection of information, including issues surrounding contractor-generated documents, legal comments that are combined with other comments in a document, and metadata--data that is hidden in documents but can be retrieved.

To provide a baseline for properly marking documents, several appendices are included. Appendix A provides a practical checklist for protecting environmental information. Appendix B contains suggested FOUO markings. Finally, Appendix C provides sample language for a transmittal letter to a non-Air Force entity to maximize the likelihood that the non-Air Force entity will properly safeguard the document.