Homeland Security Bill Compromises Federal FOI Act

FOI ALERT
11/13/2002

Society of Professional Journalists FOI Alert: November 13, 2002
Homeland Security Bill Compromises Federal FOI Act

CONTACTS:
SPJ President Robert Leger, 417/836-1113 or cell: 417/425-9140.
SPJ FOI Co-Chair Charles Davis, 573/882-5736

INDIANAPOLIS -- In its first act since the midterm elections, Congress is turning its back on a bipartisan Freedom of Information Act compromise in favor of a sweeping proposal that would hide virtually all information submitted to the government’s new Department of Homeland Security.

The new version of the homeland security bill speeding through Congress includes language that blows an enormous hole in the federal Freedom of Information Act. The Society of Professional Journalists, the Radio and Television News Directors Association and the Reporters Committee for Freedom of the Press today called on Congress to replace that language with a more palatable compromise worked out in the Senate over the summer.

Reports from Capitol Hill indicate the compromise includes FOI exemptions favored by the House and Bush administration. It would require the government to close “information” about critical infrastructure received from the private sector. It would apply to information sent to any federal agency that eventually was forwarded to the Homeland Security Department. This would allow private companies to submit to the government far more information than necessary that would then immediately be closed. The bill also allows the federal government to trump any state’s own freedom-of-information protections.

The bill would result in large amounts of information that is now open to be closed. It has the effect of shielding from the public and from lawsuits any industry mistakes that threaten public health.

“This bill sacrifices, in the name of homeland security, the long-standing American principle of open government,” says Robert Leger, president of the Society of Professional Journalists and editorial page editor of the Springfield (Mo.) News-Leader. “If any new FOI exemptions are necessary - and we don’t believe they are -- they should be written as narrowly as possible.”

Compromise language from Sens. Robert Bennett, R-Utah, Patrick Leahy, D-Vt., and Carl Levin, D-Mich., does far less damage to open government while acknowledging industry concerns. At the time the compromise was reached, Sen. Bennett pledged to vigorously defend the language on the Senate floor. SPJ and RTNDA strongly urge him to do so now, and they urge the Senate to restore the compromise language.

The Senate language is superior for at least 10 reasons:

1. It would limit the exemption to “records” submitted by the private sector, not “information” from the private sector. Thus, if companies provide mere information to DHS that is recorded in an agency-created record, that record will be subject to the FOIA and not exempt simply because private sector information is referenced or contained in the record.

2. The Senate language would limit the exemption to records pertaining to “the vulnerability of and threats to critical infrastructure (such as attacks, response and recovery efforts),” rather than the much broader proposal of any “critical infrastructure information.”

3. The House version includes civil-immunity provision and antitrust immunity/protection, which undermines corporate. The Senate version did not.

4. The Senate version limited the exemption to records submitted to the new Department of Homeland Security, not to any federal agency, as in the Bush Administration’s July 10th proposal. Thus, the compromise exemption does not affect information voluntarily submitted to other agencies that would continue to be processed under the current FOIA.

5. The Senate version does not preempt state or local sunshine laws.

6. It also requires certification of confidentiality by the submitter, unlike the Administration’s original June 18 proposal.

7. The Senate version defined “furnished voluntarily” (which are the records covered by the exemption) more narrowly than the Administration or House proposals to ensure that records submitted by companies to obtain grants, permits, licenses, benefits or other government approvals are not exempt, but are still subject to the FOIA process. The Administration and House proposals define voluntary submissions more broadly to exempt many more documents than would even be subject to withholding under current judicial interpretations of the FOIA’s (b)(4) exemption.

8. The Senate version made clear that portions of records that are not covered by the exemption should be released pursuant to FOIA requests, unlike the Administration and House proposals which would apparently allow the withholding of entire records if any part is exempt.

9. The Senate version made clear that records submitted to other agencies are not covered, even if the same document is also submitted to the DHS.

10. The House bill would criminalize disclosure of critical infrastructure information. The Senate version did not.

The Society of Professional Journalists works to improve and protect journalism. The organization is the nation’s largest and most broad-based journalism organization, dedicated to encouraging the free practice of journalism and stimulating high standards of ethical behavior. Founded in 1909 as Sigma Delta Chi, SPJ promotes the free flow of information vital to a well-informed citizenry; works to inspire and educate the next generation of journalists; and protects First Amendment guarantees of freedom of speech and press.

RTNDA is the world’s largest professional organization devoted exclusively to electronic journalism. RTNDA represents local and network news executives in broadcasting, cable and other electronic media in more than 30 countries.