MDC Uses Federal Anti-Terrorism Measure To Block Release Of Document To Critic

The Hartford region’s water-and-sewer agency has invoked a little-used federal Department of Homeland Security anti-terrorism restriction to block citizens’ access to what once was public information about its water-supply system.

Critics are blasting the legal maneuver by the Metropolitan District, known as the MDC, to have its water supply plan designated as “protected critical infrastructure information” by the homeland security department — under a post-9/11 program designed to prevent damage to public facilities by terrorists.

The critics call it an “end-run” to evade the state Freedom of Information Act by lumping non-sensitive information, such as simple supply water-capacity statistics, in with technical information about system controls that might be useful to wrongdoers.

For example, the voluminous document includes routine information such as how much water is in the scenic Barkhamsted reservoir — more than 30 billion gallons, impounded behind the impressive earth-and-stone Saville Dam, a popular tourist spot with ample public parking.

The MDC is the only one of hundreds of Connecticut water utilities to have sought and obtained the federal secrecy designation, the critics say. (An MDC lawyer acknowledged Wednesday that he knew of no other water supplier in the state doing so.)

Now a prominent MDC critic, Valerie Rossetti of Bloomfield, has filed an appeal with the state Freedom of Information Commission after being denied access to any part of the MDC’s water supply plan.

The FOI panel has scheduled a hearing Tuesday.

“The question in this case is whether in this case the MDC is abusing the federal Protected Critical Infrastructure Program by putting a ‘classified’ stamp on documents and information that clearly are not about ‘critical infrastructure’ — and we think they are abusing it,” said Dan Klau, the lawyer representing Rossetti in the FOI case.

An MDC assistant district counsel, Chris Stone, responded in an interview Wednesday that “it’s not an end-run” around the FOI law. “There’s no intent on our part” to deprive the public of information, he said, and the object is “to keep information from those who would harm our water supply system.”

Stone said the federal government established the program a decade ago for valid reasons, and the MDC filed an application March 3 that the feds approved June 3. “It’s their determination,” he said.

Rossetti is a founding member of the citizen group Save Our Water CT, which has clashed with the MDC all this year over the state-chartered water agency’s deal to sell up to 1.8 million gallons of water a day to the Niagara Bottling Co. for a new bottling plant in Bloomfield.

Save Our Water’s effort to block the Niagara plant was unsuccessful (it is largely complete), but Rossetti said she and her compatriots still hope to limit how much water the company takes out of the system — and that was part of her reason for requesting information contained in the MDC water system plan.

Timing Questioned

Rossetti’s FOIA request for the MDC’s water supply plan was filed with the state on March 1. Two days later, the MDC submitted its request for the federal Homeland Security exemption from disclosure.

Rossetti told several representatives of environmental organizations in a recent email that the MDC’s request for the federal exemption “apparently occurred during the contentious battle during the legislative session over Niagara Bottling and legislation involving the state water plan. I believe they are the only water utility in CT which has taken this unprecedented step.”

But Stone said Wednesday that the timing of the MDC’s federal submission was unrelated to the controversy.

Klau said he recognizes that some information in the MDC water supply document is legitimately sensitive, such as technical information about power supplies and computer codes that control the flow of water through the system.

But the total blackout doesn’t make sense, he said, because so much of it is already in the public domain, such as the locations and capacities of dams and reservoirs.

Stone responded that, on balance, withholding the whole plan is “the right thing to do” to protect the public, despite the harmless nature of parts of it.

The rules of the federal program required the MDC to certify “that the information being submitted [for federal protection from disclosure] is not customarily in the public domain.” Another assistant district counsel, Steven Bonafonte, submitted the application that included that certification.

FOI Complaint

Although the MDC is the agency that pushed to withhold the plan from disclosure, Rossetti’s FOI complaint, on the agenda for next Tuesday’s hearing, is actually against the state Department of Public Health.

That’s because Rossetti needed to file her request for the information with the health department’s drinking water section, which had the document on file. She did so on March 1, asking for either the whole plan or “those parts of it open to the public.”

Water utilities only need to file their water supply plans periodically, and the most recent one from the MDC was submitted in 2008 with hundreds of pages. Connecticut law, by itself, includes restrictions on what technical information can be made public about water supply systems — and, in response to that, the health department embarked on a laborious process of blocking out, or “redacting,” sections that weren’t supposed to be released.

Then, on April 20, the health department got a letter from MDC District Counsel R. Bartley Halloran, saying that “the MDC has voluntarily provided Critical Infrastructure Information (CII) to the Department of Homeland Security” including “various internal security documents, plans, schematics and related information used as part of MDC operations.”

Even though Homeland Security was still reviewing the submission at the time, Halloran said in his letter that the health department still needed to “comply with federal law and protect from disclosure any CII which you may presently have in your possession.”

Lori Mathieu, a section chief in the health department, informed Rossetti on Aug. 23 that the MDC “submitted a certification from the Department of Homeland Security … marking the 2008 Plan in its entirety as Protected Critical Infrastructure Information. … As a result and based on discussions with DHS staff, … the requested records can’t be disclosed.”

Klau said he hopes that the state FOI Commission will recognize that even though “a specific document called the water supply plan may fall under that [federal Homeland Security] program, that does not mean that all information in that report needs to be withheld,” such as information “which may exist elsewhere in state agency file drawers.”

However, on Thursday the MDC reaffirmed its opposition to the efforts by Klau and his client to win disclosure of the document.

“Disclosure of the entirety or portions of the … water supply plan would be in violation of the [federal] Critical Infrastructure Act of 2002,” another MDC assistant district counsel, John Mirtle, wrote in a “petition to intervene” as an official party in the FOI Commission case. The MDC “and the general public,” Mirtle said, “would be irreparably harmed by the disclosure of the entirety or portions of the…water supply plan.”

Jon Lender is a reporter on The Courant’s investigative desk, with a focus on government and politics. Contact him at jlender@courant.com, 860-241-6524, or c/o The Hartford Courant, 285 Broad St., Hartford, CT 06115 and find him on Twitter@jonlender.

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