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Comments sought on new critical infrastructure rules


Contact: Ian Marquand, SPJ Freedom of Information Committee Co-Chair, 406/542-4449 or ian@kpax.com

It’s time for journalists to speak up again on the subject of “critical infrastructure information.”

Despite the efforts of SPJ and others, Congress included a provision in the Homeland Security Act of 2002 that prevents disclosure of “critical infrastructure information” to the public. That provision, known as “The Critical Infrastructure Information Act of 2002” or “CII”--essentially created a large new volume of confidential information apart from provisions of the federal Freedom of Information Act.

Senators in the current Congress, notably Sen. Patrick Leahy (D-VT), Sen. Carl Levin (D-MI) and Sen. Joseph Lieberman (D-CT) are trying to replace the CII language with more narrow language.
That bill is S 609, known as the “Restore FOIA” bill. It currently is early in the legislative process and is awaiting a hearing in the Senate Judiciary Committee. SPJ supports that legislation.

The real world impact of the CII will be influenced largely by how the Department of Homeland Security implements the act through its published rules. The draft version of those rules now is available and is open to public comment.

The proposed rules are identified as “6 CFR Part 29” and are available online (in .html and .pdf form) through the Government Printing Office at:

PDF version -

HTML version -

Or, visit http://www.gpoaccess.gov/fr/index.html and type “6 CFR Part 29” in the search window. That will take you into the “frweb” area where you can also view the critical infrastructure documents.

These rules embody the worst fears SPJ and other open government advocates had about critical infrastructure legislation more than a year ago. Private sector companies will be able to label virtually anything as “critical infrastructure,” dump it on any federal agency and receive complete confidentiality and immunity from regulatory consequences.

Journalists and others who make information requests under the Freedom of Information Act should note Section 29.3. That section states that the CII will not apply to any information the private sector is required to provide to the federal government because of law or regulation. Journalists also should note the language in Section 29.3 (d):

“Independently obtained information. These procedures shall not be construed to limit or in any way affect the ability of a Federal, State, or local Government entity, agency, or authority, or any third party, under applicable law, to obtain information by means of a different law, regulation, rule, or other authority.” (Emphasis added.)

The Department will take comments until June 16, 2003. SPJ will submit comments on behalf of the national organization. We also encourage individual news organizations and journalists to read the rules and make their own comments. We especially encourage journalists and other open government advocates to point out the dangers of the CII and the need to bring common sense to its provisions. Since Congress ignored this issue in including the CII in the Homeland Security Act in the first place, it’s important to get such comments on the record in this process. We also encourage you to send copies of your comments to your Congressional delegation as a means of supporting the “Restore FOIA” bill.

Written (paper) comments should be sent to:

Associate General Counsel (General Law)
Department of Homeland Security
Washington DC 20528

Electronic comments should be sent to: cii.regcomments@DHS.gov.

SPJ also urges journalists and news organizations that lose access to information because of HSA or CII to contact us so we can prepare appropriate comments to Congress.

And as always,
Write about it!

SPJ FOI Alert Vol. 8; No. 7

To subscribe to the Society of Professional Journalists FOI Alert, contact SPJ at spj@spj.org or call 317/927-8000. In your message, provide your name, organization, mailing address, e-mail address, phone number and fax number. There is no fee. We strongly encourage the wide dissemination and publication of these alerts in other forums.

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