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SPJ takes FOI concerns to Congress

Society leaders spend two days in Washington

by Ian Marquand
Co-Chair, SPJ Freedom of Information Committee

SPJ volunteer leaders and our Washington legal counsel visited the nation’s capital on March 7 and 8 to call on key members of the U.S. House and Senate. Our lobbying visits have been an annual affair since 1999, but were more important than ever this year because of several threats to freedom of information, one of SPJ’s main missions.

These visits serve several important purposes for our organization and the public’s interest in freedom of information:

  1. To thank friends whose actions on behalf of the First Amendment, FOI and the public’s right to know have been a positive force over the previous year (or more in some cases).
  2. To educate members with whom we have not worked before about who we are, what our viewpoints are and what resources we can bring to the table on important issues.
  3. To serve notice to our adversaries that we pay attention to congressional activities and that we have the means to bring our views to the public’s attention through the media.
  4. To learn more about where issues stand in the fast-changing and often confusing congressional process.
  5. To learn how we can participate effectively in dialogues and debates on issues that affect our members.
  6. To educate members of Congress on the importance of FOI and public access to government information and process.
  7. To raise the profile of SPJ within Congress and the federal government.
This was my third visit to Washington for SPJ as your national FOI Committee chair. Between my first visit in 2000 and this spring, some issues remain evergreen, while some issues fade and yield to new ones. On this trip, the issues we tackled were:

Current Status:
Dormant, with potential to arise quickly
Key Player: Sen. Richard Shelby (R-Alabama)
SPJ Stance: To oppose legislation expanding criminal penalties for release of classified information and to support efforts by access and media leaders to create an “accepted practices” agreement with the national security community.

Access advocates have labeled Shelby’s attempts to punish any leak of classified information as America’s “Official Secrets Act,” after the one in Great Britain. We’ve had two extremely close calls with this proposal in the past 18 months. Only a last-minute veto by President Clinton and a last-minute cancellation of a Senate hearing have stopped harsh criminal penalties for those who reveal any kind of classified information. SPJ still believes his proposal could effectively turn journalists into criminal accomplices subject to federal criminal investigation and sanctions, changing the way journalism is practiced and denying the public information it needs.

In the fall of 2000, Shelby succeeded in attaching his legislation to a bill authorizing intelligence funding for fiscal year 2001. The proposal took a stealth trip through Congress, avoiding public hearings and standard congressional procedures and processes, until it reached President Clinton’s desk. Access advocates, including SPJ, pleaded for a veto. Clinton eventually obliged, although his veto surprised some of his closest advisers. A wave of relief swept through the access community.

Then, in the late summer of 2001, Shelby managed to get a hearing on a new version of his bill scheduled before the Senate Intelligence Committee for early September, immediately following Congress’ summer recess. Shelby’s timing was no accident. Typically, Washington is still dozing in the dog days of summer on Labor Day, and he apparently hoped to tiptoe his proposal past the sentinels. It didn’t work.

First, Shelby underestimated the effective work by the Washington access corps to mobilize opposition forces. Second, the power shift in the Senate to the Democrats created a new environment less friendly to him. New Intelligence Committee Chair Bob Graham of Florida, who originally had been amenable to a hearing, ultimately frustrated Shelby by canceling the hearing at the last moment.

Access advocates also were incredibly lucky. The cancelled hearing was scheduled just one week before Sept. 11. Had it taken place after that date, Shelby’s bill likely would have flashed through Congress on greased rails and been signed into law by President Bush with great fanfare as an anti-terrorism measure.

In our March meetings, we learned that Shelby still considers the bill a priority. However, we learned that cooler heads have recognized that his proposal would create a significant change in the First Amendment relationship between government and the media. In addition, discussions have taken place among Washington’s elite in both the media and the Bush administration to reach an agreement that would allow more information on America’s war on terrorism to reach the public, while protecting key sources of that information.

Assuming the administration holds up its end of the bargain and there is no egregious breach of the agreement by the media, the public should receive more complete, timely, and accurate information on the war without damaging national security assets.

However, the threat of a new “Official Secrets Act” remains. Though Shelby is more politically isolated than he was before, safety and security are still the watchwords in Washington, and one high-profile incident can put legislation on classified leaks back on a fast track.

Current Status:
Bills in both House and Senate, no hearings scheduled.
Key Players: Sen. Jon Kyl (R-Arizona), Sen. Robert Bennett (R-Utah); Senate Committee on Governmental Affairs, chair Sen. Joseph Lieberman (D-Conn.) and ranking minority member Sen., Fred Thompson (R-Tenn.); Sen. Patrick Leahy (D-Vermont)
SPJ Stance: To contribute our views to the legislative process and work toward amendments that protect FOIA and the public’s right to know.

Safety and security also are the motivations behind new bills to help the government respond to threats to America’s “critical infrastructure” — the computer systems used to store data or control complex systems.

The vast majority of those systems are in the hands of the private sector. Some of those systems maintain vast databases of financial or operational information. Others are command systems for complex facilities ranging from drinking-water systems to chemical storage plants to nuclear power stations. There already have been reports that some of these systems have been probed by hackers, presumably for evil intentions. One can imagine nightmare scenarios should such an effort succeed.

While companies are required to provide lots of information to the federal government under a wide range of regulations, they are not required to report breaches (or attempted breaches) of their cyber-security systems. They are reluctant to provide the information voluntarily because they don’t wish to expose themselves to further government regulation or submit incriminating evidence about themselves. They also want to avoid embarrassment in the marketplace or potential civil liability among customers or citizens who might be affected by a security breach.

As a result, Congress is very serious about providing an avenue for private industry to report voluntarily on potential breaches of cyber-security without fear of penalty or public disclosure of the problem. Under that scenario, industry would report the problem, appropriate federal agencies would respond to help fix the situation, identify the intruder, and notify other private sector entities so they can defend against similar threats.

In return, the information provided by industry would be exempt from public disclosure. (It’s also conceivable that industry would not be liable for penalties under federal regulations, although we were told that corporate immunity is not the goal of the bill.)

Two bills have been introduced — a House bill by Rep. Tom Davis (R-Virginia) and James Moran (D-Virginia) and a Senate version by Sen. Jon Kyl (R-Arizona) and Sen. Robert Bennett (R-Utah.)

Although neither bill has come up for a hearing, the Senate version seems to be the lead vehicle at the moment. It also has drawn the most vocal opposition.

Access advocates fear the bill will create a broad new category of exemptions from the federal Freedom of Information Act. President Bush already has gone on record in favor of a narrow exemption for critical infrastructure, but FOIA watchdogs believe the original Kyl-Bennett version casts a cloak of confidentiality far beyond cyber-systems and could allow industry to label any information it provides the government as “confidential critical infrastructure information.”

A similar cry has been heard from the environmental community, which complained that Kyl-Bennett could allow polluters to keep environmental problems secret from communities as long as they report those problems voluntarily.

SPJ’s message on this issue was that private sector accountability should not be sacrificed on that altar of security. Even if short-term secrecy is deemed necessary so that immediate threats can be thwarted, the public has a right to know if there are threats to communities and whether those threats have been addressed. Emergency responders need information about dangers they may be asked to face. In addition, journalists’ access to accurate information can help quash the spread of rumor and fear in communities.

While in Washington, SPJ leaders met with Joseph Lozano of Sen. Kyl’s staff. We also spoke with key staffers for the Senate Committee on Governmental Affairs--Larry Novey, counsel to Sen. Joseph Lieberman (D-Connecticut and chairman of the committee), and Morgan Muchnick, a staffer for Sen. Fred Thompson (R-Tennessee and the committee’s ranking minority member.)

Lozano informed us that the complaints of the environmental community have led to a re-write of the bill in hopes that it can be presented before Governmental Affairs later in the spring. SPJ was invited to contribute its own suggestions as soon as possible.

Novey and Muchnick left no doubt that Congress intends to provide some kind of voluntary reporting avenue for industry. While they had no timetable for a hearing (too much other pressing business vying for attention in a crowded calendar) they, too, were anxious that we offer our input immediately. They also were the only people we met in Washington who asked directly if we had balanced our desire for public disclosure and accountability with the need for security against terrorism.

We also learned that Sen. Patrick Leahy (D-Vermont) might become involved in this issue and might try to steer the bill to the Senate Judiciary Committee, which he chairs. Leahy is perhaps the greatest friend of FOIA in the Senate, and we believe he will play an active role in protecting the integrity of that law.

Current Status:
Senate version still is awaiting floor action, while House version is awaiting a committee vote.
Key Players: Sen. Charles Grassley (R-Iowa), Sen. Charles Schumer (D-New York), Rep. Steve Chabot (R-Ohio)
SPJ Stance: To continue supporting both bills and provide assistance as needed at critical times. We may benefit from a bit of legislative gamesmanship.

The effort by certain committed members of Congress to grant federal judges the authority to allow cameras and other recording devices in their courtrooms has made great strides in the past year. For the first time, a bill has passed through the Senate Judiciary Committee and awaits action on the Senate floor. This development is a direct result of the power shift in the Senate that gave Democrats control of committees in general and gave Sen. Patrick Leahy (D-Vermont) control of the Judiciary Committee specifically. Under Republican committee control, Sen. Orrin Hatch (R-Utah) and others effectively blocked this kind of legislation from moving forward.

SPJ met with staffers for bill sponsor Sen. Charles Grassley (R-Iowa) and his chief co-sponsor, Sen. Charles Schumer (D-New York), as well as with Sen. Leahy’s top staffer on FOIA issues, Beryl Howell, who has been a great friend to SPJ over the years. We also met with a staffer for Rep. Steve Chabot (R-Ohio), who has sponsored a parallel bill in the House.

We offered our thanks to the respective legislators for their work on this issue. Time might be the biggest challenge to this bill in the current congressional session. With a backlog of other legislation still to be addressed and with elections looming, the calendar might expire before the bill can be sent to the White House.

However, we were told that a scenario might exist to speed the process. If the House bill can be attached to a piece of bedrock legislation (such as an appropriations bill) it might be passed without having to go through the full congressional process.

Current Status:
GAO has been asked to review FOIA impacts of Ashcroft policy memo and post-Sept. 11 security
Key Player: Sen. Patrick Leahy (D-Vermont)
SPJ Stance: To support continued oversight of FOIA compliance by Congress and to solicit feedback from SPJ members on their FOIA experiences.

Attorney General John Ashcroft’s Oct. 12 memo outlining the Bush administration’s policy sounded alarm bells throughout the access community, and SPJ objected to it. While it’s still early, we expect that Ashcroft’s call for more thorough review of privacy implications of FOIA requests will lead to more denials or delays as time passes.

Senator Leahy has similar concerns and has voiced them in a request to the General Accounting Office, the investigative arm of Congress. Specifically, he has asked GAO to assess the impacts of the Ashcroft memo on decisions regarding FOIA requests and requests for fee waivers. He also asked GAO to look at electronic access to federal information following Sept. 11 to see how much information has been removed from public view and whether electronic delivery systems were adequately used once the congressional mail system became compromised during the anthrax scare of last fall.

The 2002 Washington trip also included a conversation with Dan Metcalf of the Justice Department’s Office of Information and Privacy. The OIP acts as a liaison between Justice and FOIA officers in all federal agencies and Metcalf, along with fellow veteran Dick Huff, represents the office’s institutional memory. While SPJ and OIP have different expectations of what the Ashcroft memo will mean for FOIA requesters, we agreed to see what the actual impact of the new policy will be. We also agreed to keep the lines of communication open. That’s important, since Metcalf and Huff have more real-world experience with FOIA and its implementation than most people in Washington and remain valuable resources, regardless of whether we view issues in different ways.

Some members of the delegation also paid a visit to the all-but-elected House Majority Whip, Deputy Whip Roy Blunt (R-Missouri), to discuss the overall legislative agenda for the remainder of 2002. This group was led by SPJ President-Elect Robert Leger, who hails from Blunt’s district.

Our delegation would like to thank Bruce Brown, Bob Lystad and Karen Kramer of the law firm of Baker & Hostetler for their assistance in scheduling our congressional visits and to Bruce and Bob for accompanying us around the Hill. We also would like to thank Paul McMasters of the Freedom Forum, Scott Armstrong of the National Security Archive, and Bruce Sanford of Baker & Hostetler for their fine briefing on the leaks legislation issue.

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