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While considering Homeland Security Department, Senate Committee may deliberate a new FOIA exemption

SPJ FOI Alert Vol. 7; No. 4

SPJ President-elect Robert Leger, editorial page editor at the Springfield (MO) News-Leader, at 417/836-1113 (417/425-9140 cell) or rleger@springfi.gannett.com Robert D. Lystad of Baker & Hostetler LLP, counsel to the Society, at 202/861-1707 or by e-mail at rlystad@bakerlaw.com

The Senate Governmental Affairs Committee will consider amendments to legislation creating a new Homeland Security Department tomorrow, July 24. It is anticipated that the Committee will consider whether to create a new exemption to the Freedom of Information Act that would prevent public disclosure of critical infrastructure information that is voluntarily provided by private companies to the new department.

The Society strongly believes that no new FOIA exemption is necessary. Exemption 4 of the FOIA already protects from disclosure certain confidential or trade secret information that private entities supply to the government. As Ronald Dick, a senior FBI official, acknowledged at a recent Senate hearing, “We believe that there are sufficient provisions in the FOIA now to protect information that is provided to us.”

If the committee feels compelled to adopt a new and unnecessary exemption, the proposal being offered by Sen. Carl Levin, D-Mich., would do much less damage to the public’s right to know than an alternative proposal being offered by Sen. Robert D. Bennett, R-Utah, for the following reasons:

· Sen. Bennett’s amendment protects from public disclosure all “information” voluntarily provided to the new department, while Sen. Levin’s amendment limits such protection to “records.”

· Sen. Bennett’s amendment protects all information provided to the new department, regardless of the sensitivity of such information. Sen. Levin’s amendment protects only records pertaining to vulnerabilities to critical infrastructure.

· Both amendments protect from disclosure information that is “not customarily available to the public.” Sen. Levin’s amendment also requires that a private company certify this fact.

· Unlike Sen. Bennett’s proposal, Sen. Levin’s amendment makes clear that records supplied to the government as part of a grant proposal or the like cannot be shielded from disclosure under the FOIA.

Just as the FBI, the CIA, and the State Department already have adequate means under the FOIA to prevent the release of confidential data received from the private sector (not to mention information that could endanger national security), so too would a Homeland Security Department have these tools at its disposal. The FOIA exemptions being proposed now have the potential to shield from the public information about health and safety that is not otherwise sensitive or confidential. Congress should not undermine these interests in its quest to protect the nation. If the Senate must adopt a new FOIA exemption, at least the Levin proposal is more narrowly tailored to prevent only truly sensitive information from being released to the public.


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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.

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