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Judge orders U.S. to disclose rail-security documents

(The following article by Joe Fiorill of Global Security Newswire was posted on GovExec.com on December 15.)

WASHINGTON -- A federal judge's order issued Wednesday should require the Bush administration at last to hand over a secret rail-security plan for the District of Columbia, according to the D.C. Attorney General's Office.

In a case in which the federal government and rail operator CSX are challenging what is effectively a ban on carrying certain toxic materials over D.C. rails, District Court Judge Emmet Sullivan ordered the federal Transportation and Homeland Security departments to go farther than they have in responding to a discovery request for information from the District and the Sierra Club.

"This is a major victory for the city," said D.C. Council member Kathy Patterson, who sponsored the new city law. "It is critical that federal agencies be called to account for their failures to protect this and other at-risk cities, rather than hiding behind the cloak of secrecy."

In adopting the new law, D.C. officials and lawmakers cited concerns that terrorists could blow up trains carrying chlorine, which has been historically used as a chemical weapon, as a way of carrying out a chemical attack without having to procure the chemical agents.

Sullivan earlier this year criticized the federal government's use of a "secret" plan to protect the rails and its refusal to share the plan with D.C. officials.

The judge succeeded in September in obtaining the plan for his own viewing. City officials have not yet been granted access to the plan, but Sullivan's order yesterday requires the federal government to share it with the District, D.C. Attorney General's Office spokeswoman Traci Hughes said today.

Sullivan instructed the United States to conduct "a good-faith search" of files at the Homeland Security and Transportation departments, including the latter's Surface Transportation Board, for additional documents relevant to a D.C.-Sierra Club request to which he had already instructed the federal government to respond.

Sullivan also instructed the federal government to draw up a "detailed log of all documents and information that it seeks to withhold under any claim of privilege (including classification as sensitive security information)." He set Jan. 31 as the deadline by which the federal government must yield the new documents to the city.

The order follows the city's allegation in a Nov. 18 filing that the federal government "unilaterally" and "in defiance of the plain language of the court's order" had decided to disclose only documents involved in making and enforcing a 2003 Transportation Department rule on hazardous materials-transport security.

Sierra Club legal expert Jim Dougherty said the discovery response should have been much broader.

"What we're looking for is anything that they either produced or relied upon when they were making their decision about rerouting," he said.

Until the lawsuit is resolved, the city and railroad company have reached a voluntary agreement under which CSX is rerouting the materials away from at least one of its two lines through the District.

Friday, December 16, 2005

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