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Senators reach compromise on FOIA exemption to Homeland Security bill, plan panel vote today

SPJ FOI Alert Vol. 7; No. 5

SPJ President Al Cross, political writer and columnist, The (Louisville) Courier-Journal

502-648-8433 or across@courier-journal.com

SPJ President-elect Robert Leger, editorial page editor at the Springfield (Mo.) News-Leader

417-836-1113 (417-425-9140 cell) or rleger@springfi.gannett.com

Robert D. Lystad of the Washington office of Baker & Hostetler LLP, counsel to the Society

202-861-1707 or rlystad@bakerlaw.com

After weeks of negotiations, Sen. Patrick Leahy (D-Vt.) and Carl Levin (D-Mich.) reached agreement late Tuesday with Sen. Robert Bennett (R-Utah) on language for a Freedom of Information Act exemption in the proposed Homeland Security Act. The compromise significantly narrows the types of information provided by the private sector to the new Department of Homeland Security that could be withheld from disclosure. It will be considered during a mark-up in the Senate Governmental Affairs Committee today (Wednesday).

While the Society of Professional Journalists preferred no exemption (as explained in our July 9
letter to senators), our Washington counsel advised us that the Senate version of the Homeland Security Act would include some sort of exemption. “The agreed language is much less damaging than Sen. Bennett's original proposal, and is head and shoulders better than the House version and proposals advanced by the White House,” said Robert Lystad of Baker & Hostetler, counsel to SPJ.

While a compromise has been reached, the battle is not over. “The bill is subject to change in the Senate and in conference with the House, which is about to pass a version that would blow a huge loophole in the FOIA,” said SPJ President Al Cross, political writer and columnist at The (Louisville) Courier-Journal. As part of the compromise, Sen. Bennett has promised to vigorously defend this language on the floor and, if chosen as a conferee, in conference.

The original proposal would prevent public disclosure of critical infrastructure information that is voluntarily provided by private companies to the new Department of Homeland Security. While the Society strongly believes that no new FOIA exemption is necessary, because Exemption 4 of the FOIA already protects from disclosure certain confidential or trade secret information that private entities supply to the government, Cross said a compromise was needed to prevent passage of the original proposal.

Lystad said the compromise would:
1. 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. 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. Include NO civil-immunity provision and NO antitrust immunity/protection that would undermine corporate accountability, as in the House and original Bennett proposals.

4. Be limited 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. Not preempt state or local sunshine laws.

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

7. Define “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. Make 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. Make clear that records submitted to other agencies are not covered, even if the same document is also submitted to the DHS.

10. Not criminalize disclosure of critical infrastructure information, the House bill would.

Cross urged SPJ members, all journalists and friends of freedom information to focus their attention, and the public’s attention, on this issue as it moves through Congress. “Freedom of information is under the greatest threat in our lifetimes,” he said. “While we can accept reasonable precautions at a time of increased threat, we must be careful about allowing our freedoms to erode at the beginning of an open-ended conflict that could last longer than any war in American history. Freedoms compromised now could be freedoms forgotten tomorrow.”

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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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