Congress in early October, facing an imminent election-year recess, was poised 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 state 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 (see Sept. EW -- .pdf version).

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 5-4. Rep. Janice Schakowski (D-IL) offered a similar amendment on the House floor, which failed on a 240-188 vote. A floor amendment to expand the number of agencies covered by the exemption, offered by Rep. Tom Davis (R-VA), was defeated 233-195 [see House-passed provision].

The Senate Governmental Affairs Committee worked out a different version of the bill, which it reported out as S 2462 on June 24. As House action neared after the Senate committee had reported its bill, Senators Patrick Leahy (D-VT), Carl Levin (D-MN), and Robert Bennett (R-UT) agreed on a compromise that all expected might prevail 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 proposed new Department of Homeland Security. It would not pre-empt state and local open-records laws and would require submitters to certify that the information is 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.

More Links:

• SEJ's New FOIA Web Page: http://www.sej.org/foia/index.htm
  
• OMB Watch -- Access to Government Info Post-9/11: http://www.ombwatch.org/article/archive/104/
  
• Reporters Committee for Freedom of the Press: http://www.rcfp.org/
  
• Sept. 2002 RCFP White Paper: Homefront Confidential: http://www.rcfp.org/homefrontconfidential/
  
• First Amendment Cyber-Tribune: http://w3.trib.com/FACT/
  
• Project on Government Secrecy (Fed. of American Scientists): http://www.fas.org/sgp/
  
• Freedom Forum First Amendment Web Page: http://www.freedomforum.org/first/
  
• The First Amendment Project: http://thefirstamendment.org/
  
• Copley First Amendment Center: http://www.illinoisfirstamendmentcenter.org/
  
• Society of Professional Journalists FOI Page: http://www.spj.org/foia.asp
  
• Investigative Reporters & Editors FOI Page: http://www.ire.org/foi/