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Coalition of Journalists for Open Government gives low marks to 109th Congress

Coalition of Journalists for Open Government Update 12/12/06
SPJ is a member of the Coalition
 To read CJOG's agenda for the 110th Congress click here.


By  Pete Weitzel

The 109th Congress has called it quits, having spent fewer hours on the
people's business than any Congress since the 1948 "do nothing" session.
It failed to pass Freedom of Information Act reform but its attention
did spur a Presidential Executive Order that could prompt better agency
service.  It also failed to move Reporter's Shield legislation.

There were a few positive notes.  Congress also failed to pass a number
bills that would further restricted access to information and declined
to move along proposals aimed at leakers and, indirectly, the reporters
who receive the information that is leaked.   And it tightened
application of the overly broad Sensitive Security Information law.

Below is a final report on the 109th and the legislation we have
spotlighted along the way.   I think it indicates that a combination of
aggressive media reporting on open government issues, strong editorial
comment, and push or pushback by media organizations, can make a
difference.

 The leadership of the incoming, 110th Congress has promised to promote
more openness, with an initial focus on the Congress itself.  We'll see.
Only a few days after he suggested conference committees should be open,
Sen. Harry Reid, the new majority leader, also proposed a closed,
"bipartisan caucus" of the 100-member Senate.  Not exactly openness.
I've attached an Agenda for Open Government, a look at a variety of open
government issues that could come up in the new Congress, brief
background information and an explanation of our position on these
issues. (See SPJ's letter to Reid).

The 109th Congress and Open Government

Freedom of Information Act Reform.   Quiet opposition from the Bush
Administration  prevented the OPEN Government Act from moving past the
Senate Judiciary Committee.  The companion House bill was approved by a
House Government Reform subcommittee, with some positive amendments.
Sen. Patrick Leahy, D-Vt., a Senate co-sponsor, will be the new Senate
Judiciary chair.  Rep. Henry Waxman, D-Cal., who offered the amendments
to strengthen reporting requirements, is the new House Government Reform
chair.   We expect a modified bill to be introduced early in the new
session. 

Reporters Shield Law.    The initial bill filed by Sen. Richard Lugar,
R-Ind., was modified with amendments by Sen. Arlen Specter, R-Pa., the
chair of the critical Judiciary Committee, but with strong Justice
Department opposition, the bill remained in committee, as did the
original House bill filed by Rep. Mike Pence, R-In.   These, too, should
be refilled early in the next Congress.   

BARDA.     The initial proposal creating Bioterrorism Advanced Research
and Development Authority gave it a blanket exclusion from the public
records and meetings laws -- and as a result from any effective public
accountability.   Organizations and editorial writers and columnists
responded quickly and sharply to our alert and the bill's  drafters
agreed to listen to our concerns, then agreed to rewrite the bill.
Although much improved, we thought the new, statutory exemption provided
for bioterrorism information was still too broad. When the BARDA bill
was combined into a pandemic preparedness, reorganization and
reauthorization bill, we initiated another conversation and the drafters
made a series of modifications that narrowed the scope of the exemption
to "technical data and scientific information  .. that reveals
significant and not otherwise publicly known vulnerabilities", provided
for periodic review of non-disclosure decisions and agreed to sunset the
exemption in seven years.

Weapons of Mass Destruction:    At the urging of  the Department of
Defense, the initial draft of  2007 Defense Authorization Bill contained
a FOIA exemption for "any information" the Pentagon deemed related to
weapons of mass destruction and to potential targets of WMDs - not just
from FOIA but from state or local open records laws as well.   Working
with the Sunshine in Government Initiative, we were able to win approval
of a substitute that eliminated the exemption but clarified protections
of security information that DoD shares with local and state
governments.

Port Security:  The Port Security bill that passed Congress initially
contained an exemption for any information on incoming cargo shipments
provided the Coast Guard.  When we raised objections, drafters said the
confidentiality was required to get industry cooperation to share
proprietary information.  We pointed to the existing FOIA exemption for
proprietary information.  The exemption was absent in the final bill.
assessments of wastewater treatment plants or information "derived from"
such assessments.

Wastewater Treatment.    This bill provided a statutory exemption for
information on vulnerability assessments and related security plans  at
local wastewater treatment plants, whether privately or publicly owned.
Even the federal government couldn't get copy of the evaluations.  State
and local laws were also preempted.  The bill was reported out of
committee in the Senate but never put to a floor vote.   There was no
House counterpart.

Official Secrets Act:  The bill submitted by Sen. Kit Bond, R-Mo., that
would criminalize the disclosure of any classified information,
effectively creating an official secrets act, failed to get a committee
markup.  There was no House counterpart.  Congress members, however,
continued heavy criticism of leaks to the media and stirred several
investigations.   The Sunshine in Government Initiative organized
witnesses for the media for a House Intelligence Committee hearing on
the leaks issue in May and later worked with the Newspaper Association
of America and the Ford Foundation in re-establishing a series of
dialogues on the media and national security with media members,
legislators and representatives of the intelligence community.   

Homeland Security Appropriations:  This turned out to be an open
government win on two counts.   Provisions of the Chemical Security Bill
that would preempted state and local law were dropped when the bill was
folded into the appropriations act.   And a House committee, upset with
the Department of Homeland Security's handling of Sensitive Security
Information, which is exempt from FOIA, put in a provision that
effectively requires that SSI be reviewed for possible release whenever
there is a request and released if the initial exemption criteria no
longer hold.   It also requires SSI to be disclosed after three years
unless the information has been folded into an existing security plan..

Federal Contracts and Earmarks:   The blogging world can take credit for
at least expediting passage of a bill establishing an online database of
federal contract information.  Bloggers mounted a campaign to identify
the senator who placed a secret hold on the bill, and quickly turned up
denials from all but Sen. Ted Stevens of Alaska.  Once the hold was
dropped, the bill sped through Congress.  But a bill that would have
required online posting of earmarks - those unrequested spending items
slipped into appropriations bills - was defeated by the House 70-330 on
the final day of the session.

On the non-legislative front, openness won a victory when the
Environmental Protection Agency agreed to continue to publish its Toxics
Release Inventory annually.  The agency also said it would weaken the
reporting requirements of chemical and other facilities that handle
hazardous materials, and has not budged on that change.   The Society of
Environmental Journalists was a leader in the protests.





Published Thursday, December 14, 2006 12:29 PM by JoelCampbell

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