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

• Author: Altera, Barbara B.

1. 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.

2. THE IMPORTANCE OF MARKING DOCUMENTS

   The importance of protecting sensitive, critical information from unauthorized release cannot be overstated. Protection of such information starts at the moment a document is created and requires that the document include appropriate markings in the header and/or footer. These markings inform readers about the status of the document (e.g., draft), its purpose/content (e.g., intended for official use only or to provide legal advice), and restrictions on further dissemination.

   The responsibility for properly marking the document rests with the individual who creates the document. At a minimum, the individual should accomplish each of the following initial steps when the document is created:

   * Determine the purpose of the document. In defining the purpose of the document, numerous questions implicitly will be answered. Is the document intended for internal use only (7) (e.g., provides legal advice or makes recommendations to a decision maker)? Will it be released to the public (8) or submitted to a regulatory agency? (9)

   * Identify which exemptions under the Freedom of Information Act may apply to the information in the document. Identify whether the document contains any personal information that may be protected by the Privacy Act.

   * Properly mark the document in the header and/or footer (e.g., DRAFT, attorney work product or attorney-client privilege). (10)

   Air Force attorneys, as well as all other Air Force personnel, should ensure that documents are properly marked. This should be done whenever a draft document is reviewed or a final document is read. Although the inclusion or omission of markings are not dispositive as to the exemptions that may protect a document from release to the public, appropriate markings serve three purposes: "1) to draw attention to the possible FOIA exemptions if the information is the subject of a FOIA request, 2) to highlight the need to protect the information, and 3) to have the record sent back to the originator for a release determination in response to a FOIA request." (11)

3. FOIA HISTORY AND BACKGROUND

   The belief that there should be some degree of freedom of information in our society goes back to our founding fathers. As James Madison wrote, "A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both ... a people which mean to be their own governors must arm themselves with the power which knowledge gives." (12) According to one commentator, (13)

   Prior to the passage of the FOIA, the prevailing public access law was Section 3 of the Administrative Procedure Act of 1947 (APA). (14) This section was interpreted to limit the amount of information the Government needed to disclose to the public. In 1955, [a House subcommittee was established to deal with the issue of freedom of information]. This subcommittee produced a 1958 amendment to the APA which stated that it "does not authorize withholding information from the public or limiting the availability of records to the public." (15) This trend towards openness continued. In 1966, Congress passed the FOIA as an amendment to the APA. (16) Despite the improvements over the APA, there were several loopholes in FOIA that allowed government agencies to circumvent compliance. In particular, FOIA contained no time limits and no limitations on fees, which allowed agencies to take extremely long periods of time to respond and charge unreasonably high fees. (17) Also, in 1973 the Supreme Court held that the test for Exemption 1 coverage is simply whether the President has determined by Executive Order that particular documents are to be kept secret, (18) thus providing a broad basis to withhold documents from release.

   Of the amendments to FOIA since its enactment, five most notably changed its procedures and/or substance. (19) The first amendment to FOIA was in 1974, resulting in part from a post-Watergate general increase in distrust of government and the perceived need for increased transparency. (20) This amendment was substantial and included provisions which narrowed the scope of the law enforcement and national security exemptions as well as broadened several procedural provisions (i.e., fees, time limits, and judicial review of classified documents). (21) The amendment in 1976, which narrowed Exemption 3 (that is, the incorporation of nondisclosure prohibitions contained in other federal statutes), (22) was followed by extensive changes in 1986. Specifically, the Freedom of Information Reform Act of 1986 provided broader exemption and exclusion coverage for law enforcement information and created a new fee structure. (23)

   The 1996 amendment, known as the Electronic FOIA, specifically applied FOIA to the Internet. (24) This amendment requires agencies to post FOIA guides on their web pages, requires agencies to make certain information available in...