(CN) - Security concerns justify the U.S. government's withholding of records about two dams on the U.S.-Mexico border, but it may have to release a related expert report, the D.C. Circuit ruled.
Created in 1889 by the U.S. and Mexican governments, the International Boundary and Water Commission oversees the water rights and boundary treaties of both nations.
The agency consists of a so-called "U.S. Section," administered by the Department of State, which manages dams along the Rio Grande River. Mexico's Secretariat of Foreign Affairs meanwhile handles its section of the agency.
In 2010, the Department of Homeland Security reported an alleged plot by the Los Zetas drug cartel to blow up one of those dams, Falcon, which lies about 130 miles inland from the Gulf of Mexico.
Shortly thereafter, the nonprofit Public Employees for Environmental Responsibility sent the U.S. Section a request under the Freedom of Information Act for records about Falcon and the Amistad dam, another 260 miles northwest along the border.
The agency released many records to PEER, but, citing security concerns, withheld an expert report on Amistad Dam's structural problems, parts of an emergency action plan detailing how law enforcement should respond if the dams fail and maps showing how downstream areas would flood if the dams broke.
Unsatisfied with the response, PEER sought review from a federal judge in Washington.
After U.S. District Judge Barbara Jacobs Rothstein found the U.S. Section had properly withheld the records, PEER appealed to the D.C. Circuit.
A three-judge panel of the federal appeals court found Wednesday that the agency had properly kept a lid on records about the emergency action plan and flood maps.
The panel agreed with the U.S. Section that, since these records deal with how law enforcement may investigate a dam failure for suspicion of terrorism or criminal sabotage, they are exempt from disclosure.
"The record in this case includes an intelligence alert from the Department of Homeland Security describing an alleged plot by drug traffickers to blow up Falcon Dam," Judge Brett Kavanaugh wrote for the panel.
"The alert states that traffickers warned some local residents to evacuate in advance of a possible attack on the dam. That record evidence confirms what common sense suggests: The inundation maps, if disclosed, could reasonably be expected to endanger life."
But the panel breathed life into PEER's quest for the expert report on Amistad Dam, remanding the issue to Jacobs Rothstein.
PEER claims that the Mexican National Water Commission helped prepare the report to advance its own interests, which would move the document out from under a disclosure exemption.
"The problem is that we do know if officials of the Mexican National Water Commission actually assisted in preparing the expert report," Kavanaugh wrote.