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Senate Bill 1456 threatens public access


Al Cross, SPJ President, 502/648-8433 or across@mis.net
Ian Marquand, SPJ FOI Chair, (406) 542-4449 or ian@kpax.com

INDIANAPOLIS -- The Society of Professional Journalists is urging Congress not to further weaken the federal Freedom of Information Act and pose other obstacles to traditional newsgathering and public access as it considers legislation on private companies' sharing of information with the federal government.

SPJ submitted comments this week on Senate Bill 1456, which would protect corporations and other private entities that report security problems with computer systems that control "critical infrastructure" -- such things as chemical plants, public utilities, and water facilities. In return for providing the information and assisting the government in solving security problems, private entities would be immune from federal sanctions under the bill. In addition, all information about the reporting and any federal responses would be kept confidential.

In the wake of the terrorist attacks of Sept. 11, many corporate interests are calling on Congress to exempt all records "voluntarily" submitted to federal regulators under the bill’s provisions. SPJ, the nation's largest and broadest journalism organization, is warning that the bill could have disastrous implications on public scrutiny and accountability of the government and corporations.

In a letter to the sponsor of S. 1456, Sen. Jon Kyl (R-Ariz.), and staff members representing the leadership of the Senate Governmental Affairs Committee, SPJ Freedom of Information Co-Chairman Ian Marquand said existing exemptions in the FOIA covering trade secrets and other legitimate confidential business information are adequate to protect sensitive information companies might report to the government. In addition, SPJ believes that communities deserve to know if there are risks or problems associated with systems controlling potentially hazardous facilities.

SPJ's official comments submitted to the chairman of the Senate Committee on Governmental Affairs follow.

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.

SPJ Statement
To the Senate Committee
on Governmental Affairs Re: S. 1456

May 8, 2002

Thank you, Mr. Chairman, for the opportunity to submit these comments for the record.

My name is Ian Marquand. I am the Freedom of Information Committee Chair for the Society of Professional Journalists. My organization has been interested for some time in the issues which have led to S. 1456, the "Critical Infrastructure Information Act" introduced by Senators Bennett and Kyl.

In March of this year, I and other SPJ leaders came to Washington to express our concerns with Senator Kyl's staff and with staff members of this committee. We understood at that time that S. 1456 was being substantially re-written to address the concerns expressed by my organization and others.

We were therefore quite surprised to learn that the bill would be discussed by this committee in a form essentially unchanged from two months ago. Today, without a revised version of the bill before us, we therefore must voice the same objections that we raised in March.

We urge the Senate Committee on Governmental Affairs to oppose S. 1456. In SPJ's view, it remains sweepingly overbroad and does much to undermine public scrutiny and accountability of corporate America.

Supporters of S. 1456 say the bill's purpose is to encourage the sharing of information that would strengthen national security against terrorist attacks on and through computer systems. We understand this desire and the desire of Congress to establish a means by which government agencies can learn of weaknesses or vulnerabilities in our country's critical infrastructure.

In the name of improving cyber security, however, corporations are pushing for exemptions to the U.S. Freedom of Information Act (FOIA) that duplicate existing legal doctrine, then extend it even further to any and all information, so long as it is "voluntarily submitted."

In our view, however, S. 1456 promises the private sector too much in exchange for the information provided. The bill defines "critical infrastructure" as almost every possible imaginable system: "physical and cyber-based systems and services essential to the national defense, government, or economy of the United States." Who is to say what is "essential" to the economy?

It then goes on to exempt from FOIA several other categories of information including assessments; risk audits and evaluations; and insurance and recovery plans submitted by companies about critical infrastructure systems.

These broad exemptions are unnecessary. Trade secrets are already well protected under FOIA. Section 552 (b)(4) states that records that are "trade secrets and commercial or financial information obtained from a person and privileged or confidential" and not subject to the FOIA. The courts have ruled expansively on the issue, and there are no credible examples of confidential information of this nature being released.

The new exemption would, however, create huge new holes in the FOIA. It would bar the federal government from disclosing information regarding spills, fires, explosions and other accidents - even in public emergencies -- without first obtaining written consent from the company that had the accident. In our view, this would interfere with routine, traditional newsgathering in a way we find very disturbing. It also seems to remove the private sector from any accountability to the public in the communities in which these "critical infrastructure" systems and facilities exist.

The legislation applies "notwithstanding any other provision of law," thereby repealing all other provisions that require the government to disclose - to the courts and the public - information about a company's compliance record. In effect, the legislation invites companies to engage in a "race to voluntarily disclose," so that information cannot be made publicly available without their permission and volunteers are given immunity for auditing themselves and turning information about their violations over to the government.

Because the legislation does not prohibit disclosures by companies themselves, or their employees and competitors, it does not fulfill its stated purpose of protecting critical infrastructure information from being turned over to terrorists. Apparently, some of the information it covers is not truly sensitive data that could lead to harm to critical national infrastructures, but is, instead, information that companies would rather keep behind closed doors. There would be nothing to keep companies from abusing the proposed language to protect themselves from legitimate public scrutiny.

The Senate in general, and the Governmental Affairs Committee in particular, should not pass provisions with such profound unintended consequences without considering their implications very carefully. We respectfully ask that you oppose S. 1456 in its current form and demand that it be re-written in a way that does not compromise the public's right to know.


Ian Marquand
Freedom of Information Committee Chair
Society of Professional Journalists


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