“Critical Infrastructure” Exemption: Senators Try to Plug FOIA Hole in 2002 Homeland Security Act
Contact: Ian Marquand, SPJ Freedom of Information Committee Co-Chair, 406/542-4449 or firstname.lastname@example.org
The Society of Professional Journalists is among more than 30 groups that have signed a letter supporting a proposed amendment to the 2002 law creating the Department of Homeland Security. The amendment, to be proposed this week by Senators Patrick Leahy, Carl Levin and others, attempts to undo the damage wrought to the FOIA by the Homeland Security Act’s current language regarding “critical infrastructure” information provided to the federal government by the private sector.
The legislation, entitled the Restoration of Freedom of Information Act of 2003 (“Restore FOIA” for short) would replace the bill’s current (and seriously flawed) language with bipartisan language developed last year by the Senate Governmental Affairs Committee.
The letter states that in its current form, the exemption contains “ambiguous definitions that could unintentionally allow companies to keep broad categories of information secret and provisions that restrict the government's ability to use the information,” the letter states. “In order to better serve the goal of improving public safety and security, we support efforts to fix the Homeland Security Act by clarifying the scope of the information protected and removing provisions that overly restrict the government's ability to use the information.”
The letter states that information provisions currently within the Homeland Security Act of 2002 do not accomplish the goal of the law -- empowering the government to protect citizens using private-sector information which is “voluntarily” shared and identifies potential vulnerabilities to terrorist attacks.
Society of Professional Journalists President Robert Leger has endorsed the amendment. In joining the broad-based coalition seeking to repair the new FOIA exemption, SPJ urges its members to draw attention to the issue while congressional attention to the topic remains high. You can register your support for the amendment by contacting the congressmen copied on the letter and your own congressional representative.
The supporting letter is attached.
SPJ also provides the following brief comparison of “Restore FOIA” vs. the Homeland Security Act (HSA), based on previous analyses and a new report provided by the Congressional information service GalleryWatch:
1. Scope of exemption
“Restore FOIA” exempts only “records.” HSA exempts all “information”
2. “Critical Infrastructure”
“Restore FOIA” narrowly defines it. HSA broadly defines it.
3. Agency FOIA discretion for release of non-exempt information
“Restore FOIA” allows agencies to release non-exempt information. HSA offers no direction for release of non-exempt information.
4. Sharing among government agencies
“Restore FOIA” places no limits on agencies sharing records with one another. HSA places severe limits on sharing between agencies.
5. Are state or local laws pre-empted?
“Restore FOIA” leaves state and local laws in place. HSA overrules state and local laws for all information submitted “voluntarily.”
6. Definition of “Voluntarily submitted”
“Restore FOIA” defines it narrowly. HSA defines it broadly, to the benefit of the private sector.
7. Criminal penalties for disclosure of “critical infrastructure” information
“Restore FOIA” has none. HSA provides for fines and jail time for unauthorized disclosures.
8. Corporate immunity Under “Restore FOIA,” companies can be held accountable through civil suits. HSA makes companies immune from such suits.
9. Agencies covered
Under “Restore FOIA,” only records submitted directly to the Dept. of Homeland Security are exempt. Under HASA, any information submitted to any federal agency may exempt.
10. Congressional access to information
“Restore FOIA” allows Congress to access critical infrastructure information submitted. HSA allows agencies to withhold information from Congress.