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When Hurricane Katrina wrecked New Orleans in 2005, it wrecked University of the District of Columbia law professor Will McLain a little bit, too. The Mississippi native had long cared passionately about New Orleans; after the hurricane, he followed events closely, becoming disgusted as he realized Katrina was a man-made disaster, too.
Katrina and New Orleans became the focus of a course on disaster law that McLain co-taught with fellow professors Susan Waysdorf and Laurie Morin in 2007. The course culminated in a field trip to the city during which students volunteered as public defenders, successfully springing some 39 people from jail.
“And then the idea was, because we are the public law school for the District of Columbia, to learn lessons from the New Orleans experience and bring it back home,” McLain says.
A logical first place to check on the District’s disaster readiness was the D.C. Department of Corrections (DOC). One of the most outrageous human rights failures of Katrina happened at the Orleans Parish Prison: Guards simply fled in the face of the hurricane, leaving thousands of inmates locked up for several days with no food, water, plumbing, or ventilation as the facility flooded.
Last December, McLain and fellow faculty member Matt Fraidin filed a request under the D.C. Freedom of Information Act (FOIA) for copies of emergency plans at the D.C. Jail. They stated in their request that they wanted to use the information as part of their upcoming spring course.
The professors’ request has become a quagmire of its own, a case study in bureaucratic obstruction. The corrections department has denied the request, citing 9/11 and the jail’s vulnerability as a terrorist target. It’s among the oldest tricks in the info-denial playbook of federal and municipal agencies—just cite public safety, national security, or terrorism, and be done with a noisome request for documents.
The corrections department didn’t completely stonewall the UDC professors. A month after the initial request, it released the emergency plans of the health-care provider for D.C. Jail inmates, UNITY Health Care. The provider’s disaster plan outlines procedures for treating ill or injured inmates in the event of a natural or man-made catastrophe. Thanks, but no thanks. The professors weren’t getting what they really wanted—the emergency evacuation plan for the Central Detention Facility (CDF), the main building on the D.C. Jail’s Southeast campus. The DOC’s information officer, Oluwasegun Obebe, identified “Program Statement Number 5031.1A” as the document the professors couldn’t have. Obebe said it was exempt because “it is security sensitive.”
In February, Fraidin and McLain sued, hoping a D.C. Superior Court judge would force the agency to disclose the docs. In its subsequent motion to dismiss the suit, the government argued that the CDF emergency plan is confidential under the statutory exemption for “any specific response plan” and “any specific vulnerability assessment…intended to prevent or mitigate an act of terrorism.”
“If forced to reveal this information,” the government argued, “DOC would be extremely vulnerable to increased security breaches at the Central Detention Facility and the Correctional Treatment Facility.”
By coincidence, that same month At-Large Councilmember Phil Mendelson asked the agency for its jail evacuation plans. He got the same kind of written response: “This is highly sensitive security information that cannot be released in a public document.” The department said one emergency plan had been approved by director Devon Brown in January and that an evacuation plan for the Central Detention Facility was under review.
The court sent the matter back to corrections for reconsideration. In July, the department again denied the request, providing instead an affidavit from the warden of D.C. Jail, Simon Wainwright. “To disclose the content of Program Statement No. 5031.1A to anyone other than those involved in a jail environment emergency situation would be counter-productive to a successful response to an emergency situation and create a greater potential risk to lives and properties,” Wainwright wrote.
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In August, the professors filed an administrative appeal with the mayor’s office, questioning corrections’ interpretation of the law. They argued that the “security sensitive” and “confidential” labels were bogus and that claiming the plan was intended to prevent or mitigate an act of terrorism was too vague.
In a letter from Obebe, the corrections department urged the mayor to let the department keep the plan a secret, arguing that if the document was released, it would “encourage an act of terrorism,” “[a]llow the exploitation of a terrorist or emergency situation to effect an escape” or allow criminals to carry out vendettas, and “[p]rovide operational procedures and vulnerabilities in order to defeat an effective emergency response and increase casualties.”
“The number of casualties denotes the measurement of success by terrorist organizations,” Obebe wrote. “Indeed, the 3,000 person death toll from the fall of the New York Twin Towers on 9/11 is touted as the greatest accomplishment of any terrorist act ever committed. The Jail alone houses close to 2,000 persons, exclusive of employees.”
Obebe piled on the terrorism-related points, claiming in his letter that “the District of Columbia is not vulnerable to such disasters as floods, earthquakes, hurricanes and tornadoes, but it is well known that it is highly vulnerable to terrorism.”
The terrorism argument was unusual enough to make it into a brief Associated Press story on Sept. 4.
If the professors divulged the evacuation plan to students enrolled in their disaster law class, continued Obebe, they would be “publicizing it to a number of people whose only screening process and qualifications are that they signed up for the class.”
Several students helped the professors prepare the case, with a particular focus on the legislative history of the terrorism exemption in FOIA statutes. Their work on the case became part of the disaster law class.
“This project is personal to me,” says John White, now in his final year of law school. He had lived in New Orleans for seven years before fleeing Katrina, which he says washed away everything he had. He enrolled at UDC law in 2006 after he and his wife moved to D.C. to start over. As a first-year student, he wasn’t eligible for McLain’s class, but he pestered the professor until he allowed him to sit in for a few sessions and go on the trip to New Orleans. Now fully enrolled, White has found that his prior work as a legislative intern with the D.C. Council has come in handy for the homework. He researched the FOIA statute’s history at the council’s legislative services office, sifting through thick stacks of old committee reports, work he says he found fulfilling.
“This lawsuit is a concrete example of how lawyers can be activists and change policy through litigation,” he says. “The policy of hiding behind terrorism could easily give the government a total blank check.…It’s obviously ridiculous.”
But not nearly as ridiculous as what happened when Obebe sent his letter requesting the plan remain secret to the mayor and the professors: He attached an electronic copy of the sought-after evacuation plans. Obebe immediately sent Fraidin (McLain doesn’t use computers) another e-mail acknowledging the mistake and asking Fraidin to delete the attachment, the “disclosure of which the DOC continues to deny.” Obebe later reminded Fraidin that D.C. bar rules forbid a lawyer from knowingly reading material that has been sent by mistake.
Fraidin and McLain immediately got themselves a lawyer, adjunct UDC professor Stephen Mercer, for advice on how to handle the inadvertent disclosure. In his initial research, Mercer made an interesting find.
“I was investigating the possibility that the privilege of confidentiality asserted under the FOIA statute had been waived through publication of the document,” he says. “So, in researching that possibility, I—I Googled it.”
Mercer logged onto the ubiquitous search engine and plugged in “5031.1A.” There it was—the D.C. Jail’s emergency plan—out in the open, downloadable in PDF format, on the first page of Google search results via the Department of Corrections’ Web site. The document turned out to be version 5031.1B, with a header indicating it superseded the “A” version of the emergency plan. It had been up there since February, according to details on Google’s search results page.
The ease of access to material uploaded to the Internet had not been lost on Obebe, who in his Aug. 21 letter wrote, “Indeed, in the age of U-Tube, My Space and Google, the recipes for disaster can be posted by anyone and accessible to the world.”
Fraidin and McLain sent a follow-up to the mayor’s office on Sept. 10 pointing out that even before the inadvertent e-mail disclosure, the sought-after document had been on the Web for months, available to anybody anywhere.
“Given what we now know,” the professors wrote, “it seems apparent that DOC’s invocations of the threat of ‘terrorism’ are overblown: After all, for at leas the past half-year, Osama Bin Laden, his lieutenants, and every other evil-doer in the world has enjoyed quick and easy Google access to the D.C. jail’s emergency evacuation plan—and nothing untoward has happened.” [Emphasis in original.]
The mayor’s office declined to get involved in the matter, stating in a Sept. 18 letter that it would wait for the court’s decision.
The PDF of the plan has since been scrubbed from Google search results, but an HTML version of the document remained available by searching the Google cache as recently as this week. Instructions: Enter the search term “5031.1A,” scroll down to the “Program Statement,” and click. Copy the URL from the DOC error page and paste it into a new Google search prefaced with the word “cache:” (do not insert a space after the colon).
DOC spokesperson Beverly Young writes in an e-mail, “the problem has been fixed. The public can no longer access this sensitive information. The District’s IT Department (OCTO) totally removed the link last week at DOC’s request. Because it was published at one time, ‘Google’ scanned the information, making it available via the back door instead of through the DOC’s website.”
As for the department’s claim that the District is immune to natural disasters, the professors pointed to some recent events, like Hurricane Isabel in 2003 (for which Mayor Anthony Williams declared a state of emergency) and the F-3 tornado that in 2001 ripped up College Park. They also wrote that the “District’s vulnerability to flooding has been extensively documented and reported.…In light of your administration’s recent agreement with the Army Corps of Engineers and the Federal Emergency Management Agency to spend $2.5 million in the coming year to improve the city’s flood control infrastructure, we assume that it is unnecessary to belabor this point further.”
Young contends, via e-mail, that “[n]o correctional system provides public access to its sensitive/confidential information, which includes evacuation plans. It would present a major security threat and a gross imperilment to public safety if such information was inappropriately disclosed.”
Two days before a status hearing last Friday at Superior Court, the city entered an emergency motion to prevent anyone from seeing the exhibits attached to the professors’ previous memorandum, which included the disaster plan. “By placing the documents in a court filing, plaintiff has further compromised the security at D.C. Jail.” The filing indicates that the original was supposed to be posted on the corrections department’s “intranet” for internal use, not on the Internet for public consumption.
Abandoning an earlier claim that the document couldn’t be provided with partial redactions, the corrections department also provided a copy of the plan with several lines blacked out, stating that providing the redacted version moots the lawsuit.
In the hallway outside the courtroom, things got a little testy between the two sides of the case. Assistant Attorney General Kerslyn Featherstone, representing the government, demanded of McLain, “What is this lawsuit about? What is this lawsuit about?”
Featherstone said it was inappropriate for the professors to be pursuing the matter both in court and with the mayor’s office. McLain argued that it was a common strategy.
“You are not being reasonable. I’m not talking to you anymore,” she said. McLain shrugged and took a seat on a bench as Featherstone turned to McLain’s lawyer. “I’m talking to Mr. Mercer now,” she said.
Mercer began to argue that the government’s motion for a protective order was absurd because of the document’s long-standing Google availability. “You can’t get a protective order for that,” he said.
Featherstone said that when she tried to find the document online, it didn’t come up, so she didn’t understand how Mercer had done it.
“You’re accusing me of hacking into the system,” Mercer said. He turned around and walked back toward the courtroom.
“If you make that representation to the judge,” Mercer said as he pushed the door, “you better be able to substantiate it.”
Judge Maurice Ross seemed amused by the case but said he didn’t understand why the two sides hadn’t reached some kind of agreement, since he thought the plaintiffs had obtained the document they wanted. “I thought you guys would have it all worked out,” he said. “I don’t understand why you guys can’t resolve this.”
The professors agreed to the court’s request that they not disseminate the document before the judge makes a decision on the motion for a protective order. The next hearing in the case has not been scheduled. The professors say the info they do have is not the info they want. The document, which the Washington City Paper obtained by a Google search on Sept. 2, contains almost no specific information about the jail facility or how, exactly, the department would respond to any type of disaster. The plans for responding to specific types of emergencies are listed near the end of the document as 11 separate plans for events like hunger strikes, bomb incidents, and “major disturbances.” The professors plan to press for information on those 11 additional plans, particularly for the evacuation and shelter-in-place procedures.
The redacted version blacks out bits about communication among staff during an emergency, such as “Command Center staff shall immediately report the situation to the Shift Commander,” and “The Incident Commander shall have the authority to activate additional functional elements of the Incident Command System as necessary.” It blacks out emergency containment procedures, such as securing elevators and stairs to prevent movement between floors and escorting visitors out of the building. A five-item list of emergency equipment, entirely consisting of “Protective Suits,” “Masks,” “Gloves,” “Boots,” and “Goggles” is off-limits. And so is the directive for zone supervisors to ensure “[a]n adequate number of correctional officers are available for medical escort duty.” The list of the 11 plans for specific emergencies is blacked out entirely.
In a 2005 report on preparing for and responding to prison emergencies, the Justice Department’s National Institute of Corrections noted that prisons do represent “potential” targets for terrorists, since they hold large population and are symbols of government authority, and a successful attack could menace surrounding communities with an outbreak of criminals.
McLain views the corrections department’s hostility to disclosure in this case as of a piece with another government effort to limit scrutiny in the name of terrorist-inspired security concerns. Last year, the administration of Mayor Adrian Fenty sent the D.C. Council its “Freedom of Information Homeland Security Amendments Act,” a bill that would expand the government’s ability to deny FOIA requests in the name of defending the homeland from terrorists. The bill would amend the statute to include infrastructure systems, like sewers and power plants, and also “public administration” systems, including schools, parks, monuments, and health care facilities.
As for this particular FOIA request, the case may be ongoing, but McLain is beginning to reach some conclusions on his own.
“All we’ve asked is, ‘Are you or are you not ready to take care of these people who can’t take care of themselves if something disastrous happens?’ And they’ve employed every evasion to avoid answering the question,” he says. “The inference is clear: They aren’t.”
Arin Greenwood contributed to this report.