On Denying Information From Terrorists

Environmental authorities accumulate information, part of which has to do with hazardous substances: their storage, their possible effects on their environment should they be suddenly dispersed, and the measures taken to prevent such incidents. As of 1998, with the enactment of the Freedom of Information Law, this information is made available to everyone. Two interests compete in this case: the nation’s interest in its security and the public interest in the environment. In this short commentary we examine the statutory regime in which this conflict of interests is being resolved and suggest an outline for a more appropriate policy. We distinguish between two types of information regarding hazardous substances whose security and environmental implications are manifestly different. The first type - which we term “information about the actual“ - includes information about substances that were emitted or poured to the environment, or disposed in it. The second type - “information about the possible” - includes information about stored quantities of hazardous substances, access to them or protection measures taken. The differences between the two types are obvious: information of the first type has no use to a terrorist, whereas information of the first type is; the public environmental interest as regards information of the first type is considerable, but is less so as regards information of the second type. Our conclusion is that as regards information of the first type there should be a rule of discovery, but that the discovery of information of the second type should be controlled where the security interest cannot be satisfied.