Scope of Looming New 'Homeland Security'
FOIA Exemption Undecided
Joseph A. Davis

Congress in early October,facing an imminent 
election-year recess,appeared likely to
pass new exemptions from the Freedom of
Information Act (FOIA) as part of pending
"homeland security" legislation, but only if
the House and Senate and the Administration 
could first break logjams over other contentious 
issues.

How broad an exemption -- justified as
protection against terrorism but also along
lines long sought by industry -- remained to
be decided in an eleventh-hour conference
committee to reconcile the Senate and House
bills.

Members of the Senate Governmental
Affairs Committee agreed in late July to narrow
the broad FOIA exemption in the bill
(HR 5005) passed by the House.But the
overall bill remained stuck on the Senate
floor as parties wrangled over unrelated issues 
like Administration-backed exemptions
from federal labor practices.

As passed by the House,the bill would
exempt from FOIA disclosure requirements
any information on "critical infrastructure"
that is voluntarily submitted to a federal
agency.

Professional journalism organizations
have raised concerns that such an exemption
could allow companies and states and local
governments to unilaterally and without review 
impose secrecy on information about toxic 
pollution, drinking water contamination, 
pipeline safety lapses, dam safety, electric 
utility pollution and reliability, sewage
plant overflows,nuclear plant safety,and the
healthfulness of air in public buildings, for
example.

Efforts to strike that language from the
bill failed on party-line votes both in the 
Select Committee on Homeland Security and
on the House floor.The amendment to strike
was offered in committee by Rep.Rosa
DeLauro (D-CT) and defeated 4-5.Rep.
Janice Schakowski (D-IL) offered a similar
amendment on the House floor, which failed
on a 188-240 vote.A floor amendment to
expand the number of agencies covered by
the exemption,offered by Rep.Tom Davis
(R-VA), was defeated 195 -233.
[Text of House-passed provision at http://
thomas.loc.gov/cgi-bin/query/D?c107:1:./
temp/~c107FPWfWa:e216058:]

The Senate Governmental Affairs Committee 
worked out a different version of the
bill, which it reported out as S 2452 on June
24.As House action neared after the Senate
committee had reported its bill,Senators.
Patrick Leahy (D-Vt.), Carl Levin (D-Mich.), 
and Robert Bennett (R-Utah) agreed on a
compromise that all expected would hold up
on the Senate floor.

The Leahy-Levin-Bennett compromise
left agency-created "records" open to FOIA,,
even if they contain exempt "information."
It would limit the exemption narrowly to 
information about critical infrastructure 
vulnerability. It would drop the immunity 
from civil and antitrust lawsuits granted 
to corporations in the House bill.Their 
compromise agreement would not exempt 
information submitted to agencies other 
than to the propoed new Department of 
Homeland Security. It would not pre-empt 
state and local open-records laws,and 
requires submitters to certify that
the information is actually confidential.

A fuller summary of the compromise and
report on the action was published by the
Society of Professional Journalists in its FOI
Alert of July 24,2002,online at http://
www.spj.org/news.asp?ref=253.