Unfortunately, these questions could be more difficult to answer thanks to a new rule -- issued March 3 by the Federal Energy Regulatory Commission (FERC) -- that claims “critical energy infrastructure information” is exempt from the Freedom of Information Act (FOIA). This covers anything deemed potentially useful to a terrorist attack on “production, generation, transportation, transmission or distribution of energy.”

Needless to say, this is incredibly broad. For example, FERC no longer discloses “historical transmission planning reports,” in which utilities describe their power flow, transmission plans and reliability, and present a detailed evaluation of system performance. In a provision of the rule urged by the power industry, utilities amazingly no longer have to even publicly disclose plans for building a new plant -- leaving no opportunity for public questioning at any point.

FERC actually removed such information from its web site long before completing the rule, just after the terrorist attacks of Sept. 11, 2001. In the process, the commission assumed that “all oversized documents” contained information that should not be disclosed. No review was undertaken to confirm the truth of this assumption.

FERC, in its words, “next identified and disabled or denied access to other types of documents dealing with licensed or exempt hydropower projects, certified natural gas pipelines, and electric transmission lines that appeared likely to include critical energy infrastructure information” -- again, automatically yanking them from public view with no systematic review. According to FERC, this affected “tens of thousands of documents,” which the commission laughably asserts was “undertaken as cautiously and methodically as possible.” Under the new rule -- which was strongly backed by power companies, including their trade association, Edison Electric Institute -- these once widely disseminated documents may now be off limits even through a FOIA request.

While the usefulness of this information to terrorists is murky or perhaps nonexistent -- the administration has never specifically said why it thinks the information is dangerous -- the broader usefulness is crystal clear, enabling the public to hold FERC and power companies accountable. Unfortunately, in making its decision, FERC failed to consider the substantial benefits of disclosure, ignoring the fact that public pressure and embarrassment provide important incentives for preventive action. As a result, the public could be left unaware of a potential problem until another blackout happens.

This also hampers scrutiny of FERC and the power industry just as debate over how to respond to the Aug. 14 blackout heats up. Earlier this year, FERC proposed to create regional transmission organizations to oversee upgrades of the power grid. However, the administration temporarily shelved this plan to ease passage of comprehensive energy legislation, which is scheduled for negotiation in a House-Senate conference committee this fall. If the administration has its way, this legislation will loosen regulations on ownership, encouraging non-utilities and foreign firms to take over transmission lines on the theory that they will invest to upgrade the power grid. This would continue the trend toward deregulation that started in 1992 -- which consumer groups argue is folly.

In a new report, Consumers Union and Consumer Federation of America point out that deregulation has not worked as planned, costing the public hundreds of millions in extra utility payments while increasing the risk of blackouts. Instead, they argue, Congress should focus on upgrading the power grid, and drop the illusion that power companies will take it on themselves with just a little more deregulation.

Whatever path is ultimately chosen, FERC’s decision to withhold information on transmission lines could make it more difficult to assess whether necessary upgrades are being made and performance is improving -- making problems more likely. Unfortunately, the Bush administration doesn’t seem to appreciate that disclosure can actually help protect the public.

FERC, in particular, has shown that it can’t be blindly trusted to deal with information reported by industry. As California endured rolling blackouts between November 2000 and May 2001, it became clear that power companies, most notably Enron, had purposely caused the shortages to drive up prices and pad their bottom line -- taking advantage of the state’s deregulation of electricity two years earlier.

This market manipulation should have been obvious to FERC, which repeatedly refused to take action to protect consumers. As stated in a report by the Senate Governmental Affairs Committee on Nov. 12, 2002, “On a number of occasions, FERC was provided with sufficient information to raise suspicions of improper activities -- or had itself identified potential problems -- in areas where it had regulatory responsibilities over Enron, but failed to understand the significance of the information or its implications. Over and over again, FERC displayed a striking lack of thoroughness and determination with respect to key aspects of Enron’s activities -- an approach seemingly embedded in its regulatory philosophy, regulations, and practices.” With FERC now withholding information necessary for democratic accountability, we can only hope this will change.