By Paul Gottlieb
Peninsula Daily News
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The U.S. Supreme Court on March 7 remanded to the Ninth District Court in Seattle a 2006 lawsuit filed by Glen Milner, who sought maps and other data that would show the extent of damage if such an explosion or explosions were to occur.
The Lake Forest resident had challenged the federal government’s 2003 denial of his FOIA request for the blast-zone information.
He said residents have the right to know if their homes could be damaged by explosions.
In its 8-1 opinion, the court rejected the “personnel rules and practices” exemption under which the Navy rejected Milner’s request.
Now the Navy wants to withhold the data under a law passed by Congress late last year and signed by President Barack Obama on Dec. 31 that protects information about “critical infrastructure” if preventing disclosure outweighs the public interest in granting disclosure.
In a Jan. 17 filing, Assistant U.S. Attorney Peter Winn notified the Ninth District Court that he is asking Secretary of Defense Leon Panetta to declare the data “critical infrastructure security information” and to decide that — as required by the law if the exemption is invoked — “the public-interest consideration in the disclosure of such information does not outweigh preventing the disclosure of such information.”
Winn estimated in his brief that Panetta or the agency’s director of administration and management will decide on the request by mid-March.
If the decision is in the affirmative, he will invoke the exemption to withhold the information, Winn said in his legal brief.
“As relevant to this case, the definition of critical infrastructure security information specifically includes information regarding the securing and safeguarding of explosives . . . including vulnerability assessments prepared by or on behalf of the Department of Defense, explosives safety information (including storage and handling), and other site-specific information on or relating to installation security,” Winn said.
The U.S. Attorney’s Office in Seattle would not comment on the case.
Milner did not return calls Friday for comment.
His lawyer, David Mann of Seattle, said he would not comment either until the exemption is actually applied to his client’s FOIA request.
“If they do, we will review that action,” Mann said.
In the Sept. 11, 2006, complaint Mann filed on behalf of Milner, Mann said the information will help residents “become fully informed” about the safety of the Indian Island depot.
“Indian Island is within close proximity to Port Townsend,” Mann said in the complaint.
Port Townsend is about 5 miles from Naval Magazine Indian Island when the distance is measured straight across Port Townsend Bay, and the facility has a Port Hadlock address.
The Port Hadlock-Irondale area has a population of about 3,500 residents, according to the 2010 Census.
“The safety and security of the public depends on the disclosure of this information,” Mann said.
“It is inconsistent of defendants to deny Milner the material requested, which do not involve nuclear materials, when it has released [Explosive Safety Quantity Distance] arcs for Trident submarine bases at King Bay, Georgia and Bangor, Washington,” the complaint said.
“This inconsistency elicits suspicion that members of the public live and conduct affairs in the ESQD arcs and explosives handling zone.”
Toby Nixon, president of the Washington Open Government Coalition, said Friday the Navy quickly approached Congress after the Supreme Court decision.
“The Navy basically immediately went to Congress to say, ‘We want to undo this Supreme Court decision,’ and that’s how we got to where we are.”
Nixon contended that the exemption allows the Navy to conceal records “and only superficially consider the public interest.”
The exemption is “sweeping and all-encompassing,” said Ken Bunting, executive director of the National Freedom of Information Coalition.
“There should be no exceptions to public disclosure that give the government that much freedom,” he said.
“I’m not suggesting for a second that there is not critical infrastructure information in the real world and the cyberworld that is not deserving of some kind of exception to full disclosure to anyone who asks,” Bunting added.
Senior Staff Writer Paul Gottlieb can be reached at 360-417-3536 or at firstname.lastname@example.org.