Over the next several weeks, NRC staff will be reviewing thousands of documents related to all aspects of NRC regulation of power reactors and nuclear materials to identify and sequester any information that might be useful to a terrorist intent on attacking or disrupting nuclear facilities.

This is not the first time the NRC has pulled information from public view. Following September 11, 2001, the entire NRC Web site was taken offline. That somewhat knee-jerk response was soon tempered by valid public demands for information access. For instance, as an energy market reporter, I would check the NRC's site nearly everyday to see the status of nuclear electric facilities in the West and to get details of any unusual events related to outages or operations. Other legitimate public needs were voiced by citizens of communities in which nuclear facilities were located, and by those participating in proceedings for relicensing of plants or related to safety issues. The agency heard from many people with similar interests and responded by restoring its site and revisiting its access regulations.

"Obviously, the public has a right to know there's a licensee in their neighborhood," observed NRC public information officer Scott Burnell. "But we do have to draw the line somewhere."

That line has been moving in recent years. After 9/11, commission members redefined the access policy to exclude "any information that could clearly be useful to a potential adversary." Last spring, that policy was broadened significantly by deleting the word "clearly" from the definition of sensitive information.

Also, this summer, the commission revised its policy on access to security information at nuclear power plants. For example, results of inspections and enforcement actions related to physical security of facilities will no longer be available to the public and won't be updated in existing files. In addition, this information has been exempted from provisions of the Freedom of Information Act, the NRC declared.

The agency has consistently said that no classified material has ever been permitted on the Web site. Apparently, the reason for the broad-stroke restrictions now in place have more to do with the state of technology than widespread concern about sensitive materials on nuclear power operations. Burnell told me that several "concerned individuals," including nuclear safety advocates were pressing the agency about "materials licensee" data-such as medical facilities and R&D testing projects-that might well contain critical information that could be used for unlawful purposes.

Because of the way ADAMS was designed, it was not possible to sequester the materials database, so the entire system needed to be taken out while the review was underway.

Burnell said access to some public-interest information is already being restored, including documents related to high-level waste storage proceedings and the pending Yucca Mountain license application from the Department of Energy.

The timeline for full restoration of public access on-line is still "on the order of weeks," Burnell reported. Physical access via the agency's Public Documents Room remains a question. The PDR staff is still working through a process for dealing with requests for hard-copy documents to ensure consistency of access policies. Currently, the division is taking in requests for specific documents, but it has not formalized procedures for the future, he indicated.

The NRC is not the only federal agency grappling with the issue of access to sensitive or critical documents. The Federal Energy Regulatory Commission recently revised its policies on Critical Energy Infrastructure Information (CEII). This refers to information about critical "physical or virtual infrastructure" related to related to production, generation, transmission or distribution of energy that could be useful to a person planning an attack on the nation's power infrastructure, or that gives "strategic information" beyond the location of those facilities.

On the surface, that's a pretty broad sweep, and under FERC's policies it may entail a case-by-case review of document requests and, in some cases, a requirement for the signing of a non-disclosure certificate by the party seeking the documents.

FERC's implementation of this policy drew some adverse media attention when it appeared that journalists might be required to run their stories that rely on such critical information by FERC's press office prior to publication.

Interestingly, the strongest reaction against such policy came from within FERC's press office. Bryan Lee, a former Dow Jones reporter who is now director of FERC's division of press services, said that FERC's rule on CEII initially had no specific provisions for journalists' use of information. Some agency staff members charged with implementing the confidentiality process drew up a non-disclosure form that would have required pre-publication (or broadcast) review by the agency. That's an action that obviously would cross the line of Constitutional safeguards for freedom of the press.

Like others, Lee expressed surprise and chagrin upon reading about pre-publication reviews in a New York Times article last August. "As soon as I learned of it, I started a process internally to change the policy," he said. "Today, there is no difference between the general public and the press." The current policy "strongly encourages" reporters to check with FERC when they are using critical information, he added, but there is no requirement.

"This is not a requirement designed to keep information away from the public," Lee said. "It's designed to make information available to the public under controlled circumstances."

The Bottom Line: Clearly, we now live during an era of global terrorism. There are unprecedented threats to the health and safety of our populace and to the critical infrastructure of communications, energy and emergency services. The balance of government confidentiality and the public's right to information has shifted post 9/11. As we have learned from some court decisions and provisions of the Patriot Act, there is now a different set of considerations applied to what journalists previously considered fundamental rights of access to information and protection of sources.

Personally, I will always be among those who fight for maintenance and widespread applicability of the Freedom of Information Act at the federal level and for public records access at the state and local levels. I am a proud member of the American Civil Liberties Union and the Society of Professional Journalists, two of the best organizations dedicated to safeguarding Constitutional rights for reporters and for the public.

I've never signed a non-disclosure agreement with regards to my reporting, and I never intend to do so, preferring instead to base my work on public documents rather than state secrets. Still, I have been known to reveal information that somebody thought should be a secret, but which was not legally protected or adequately secured.

Some of the restrictions imposed by the agencies cited above go against my professional tendencies. But I certainly appreciate the efforts of those public servants who try to find the proper balance for public-interest access to information.

I apply a practical test to the current situations at both FERC and the NRC. Can I still get operational and events data for power plants that help me understand market dynamics and public safety? Yes. Can I uncover the list of potential sites for liquefied natural gas (LNG) facilities that have applied to FERC for certification, or view documents that provide for environmental reviews of these facilities? Yes. Is there any obvious withholding of public-interest materials about nuclear waste storage or applications for license extensions at existing facilities? Not that I can tell. Do I need to know how a particular facility fared in its physical security evaluations or whether some NRC enforcement action has taken place? I don't know, but I certainly think the public should be informed about the state of security in the industry.

In the end, it's this practical level of information that I need to do my job as a reporter, and which is necessary for "concerned individuals" to pursue their rights to information that affects their lives and health. That's how I will judge whether an agency has crossed a line.

I'm certain there will be times when these rights are frustrated by well-meaning but overzealous bureaucrats, just as I'm certain there will be attempts by some licensees or applicants to shield sensitive "competitive" information under the guide of national security.

So, I can promise that my colleagues and I will continue to maintain a watchful eye on how information access policies are shaped and implemented.

Arthur O'Donnell is Editorial Director for Energy Central. The Business Electric is found exclusively on Energy Central.

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