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(FEBRUARY 14, 2005)



EPIC is a public interest research center in Washington, D.C. It was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values. EPIC is a strong advocate of open government, and has made use of the federal Freedom of Information Act and other open government rules many times to obtain information from the government about a wide range of policy issues, including consumer privacy, electronic surveillance, encryption controls and Internet content regulation.

The WMATA, by seeking to amend its Public Access to Records Policy (“PARP”) by incorporating provisions of the Freedom of Information Act has made a step in the right direction. We welcome such amendments as they will better protect the privacy of WMATA riders while allowing the public and the media to get better access to information about the WMATA, and enable them to get a right of administrative appeal and judicial review where necessary. We firmly believe that public disclosure of information about government activities improves its oversight and accountability, and helps ensure that the public is fully informed about government activities. We also believe the WMATA has an obligation to safeguard the privacy of its riders.

However, there are two sections in the new PARP that deserve comments as they may allow the WMATA’s PARP administrators to deny information access requests for illegitimate reasons, thereby precluding the public and the media adequate oversight over the WMATA’s activities.

I. The exemption from disclosure for “Critical Infrastructure Information” and “Sensitive Security Information” is too vague

Section 6.1.1. of the new PARP exempts from disclosure matters or records to the extent that they are “designated Critical Infrastructure Information or Sensitive Security Information (…).”

Part of this provision aims at limiting public access to information concerning infrastructure protection. Although PARP Administrators will use them as guidance in their assessment about whether to grant or deny access to documents held by the WMATA, the terms “Critical Infrastructure Information” and “Sensitive Security Information” are not defined anywhere in the PARP. We believe that these terms could be interpreted to conceal from public view the WMATA’s critical function of ensuring security for its riders. No provision in the new PARP should cast a shroud of secrecy over the WMATA’s activities and prevent meaningful public accountability.
Section 6.1.1. should be drafted so that it does not allow PARP administrators to prevent the release of documents that enable the public and the media to have adequate oversight over the WMATA’s activities and ensure accountability to its riders.

We therefore strongly recommend that the PARP define both terms “Critical Infrastructure Information” and “Sensitive Security Information” and would like to make further recommendations on Section 6.1.1. once the definitions are made public.

II. The exemption from disclosure for SmarTrip information is too broad

Section 6.1.8. provides that “All SmarTrip information [is exempted from disclosure], unless the request is made: (1) pursuant to a court order; or (2) by a law enforcement official that meets the requirements of Section 6.1 (D) of the WMATA’s Privacy Policy; or (3) by the registered user of the SmarTrip card upon proof of identity for release only to that user. (…)”

The way Section 6.1.8. is drafted could make it possible for the WMATA to refuse to disclose more information than only personally identifiable information. Such information could include policy documents, and generally all documents likely to significantly contribute to public understanding of the operations or activities of the WMATA that, without divulging SmarTrip users’ personal information, may reveal information about the WMATA’s activities with respect to the SmarTrip program.
What the drafters of Section 6.1.8. seem to have been willing to accomplish is to prevent information requesters from accessing the personal information of SmartTrip users, unless there are legitimate reasons for a requesting entity to get access to that personal information, i.e., where the request is made pursuant to a court order or is necessary for law enforcement purposes ((1) and (2) of Section 6.1.8.). However, what Section 6.1.8. is not meant to achieve is to prevent information requesters from accessing information about the SmarTrip system that does not identify specific individuals.

We therefore urge the WMATA to limit the exemption for SmarTrip information to personally identifiable SmarTrip information.


- WMATA’s question on the PARP and the Privacy Policy: “Should there be an internal appeal of an agency decision? We would like to get comments about experiences you may have had with internal appeals used by other governments:”

Yes, EPIC’s experience with administrative review under the federal Freedom of Information Act is that some disputes may be resolved without going to the courts. We favor this appeal since it encourages agency compliance with the purpose of the Freedom of Information Act.

- WMATA’s question on the Privacy Policy: “We would only give your information to the head of a public agency or instrumentality with jurisdiction within the transit zone. (para. 6.1(D)). Is that controlled enough to make sure that this exception is not overused?:”

No. Our view is that the disclosure by the WMATA of personal information to a federal agency requires a court order as well as accounting by the WMATA.We would be glad to answer any question you may have on these comments.

Respectfully submitted,

Cédric Laurant, Policy Counsel
1718 Connecticut Avenue, N.W., Suite 200
Washington, DC 20009
1 (202) 483-1140 (x114)