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Freedom of Information

Homeland Security Bill May Create New FOIA Exemption
by Joseph A. Davis

President Bush and many in Congress -- in the name of "homeland security" and in a political climate driven by continuing serious concerns over terrorism -- were poised in late July to cut off public disclosure of an indefinite and vaguely defined amount of information about environmental and public health hazards.

Fast-moving legislation could allow companies, and also states and local governments, to unilaterally and without review impose secrecy on information dealing with issues such as 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.

These proposals drew sharp objections from leaders of the Society of Environmental Journalists (SEJ) and other groups. It is the first time that SEJ has taken a formal position on legislation involving the First Amendment and the Freedom of Information Act.

Congress in late July was still debating parts of President Bush’s Homeland Security bill (HR 5005) that would create a new exemption to the Freedom of Information Act (FOIA). The final disposition of the provision had not been decided.

The provision (Sec.204) declares: "Information provided voluntarily by non-Federal entities or individuals that relates to infrastructure vulnerabilities or other vulnerabilities to terrorism and is or has been in the possession of the Department shall not be subject to section 552 of title 5, United States Code [FOIA ]."

"If simply volunteering information to the government makes that information private or secret,it is going to make it harder for journalists to do their jobs," said SEJ President James Bruggers, who reports on environment for The Courier-Journal in Louisville, Ky.

Bruggers,on behalf of SEJ and in concert with other journalism organizations, signed on to a July 10,2002, letter to Congress raising concerns about the vagueness of the provision and calling on Congress to reject it.

"This overbroad and unnecessary provision would severely compromise public health and safety,not to mention the public’s right to know. Congress should reject this provision,as it is ripe for misuse and abuse," the letter said (http://www.sej.org/foia_letter.htm).

FOIA mandates that any member of the public have access to most government information by asking for it in writing.The law exempts some basic areas such as employee personnel files, prosecutorial files, trade secrets,and national security information. Most journalists consider FOIA a basic tool for getting information about government.

Since FOIA was enacted in 1966, no additional exemptions had been added until 1999, when the chemical industry and others succeeded in a years-long campaign to limit public access to information about the hazards which chemical plants pose to surrounding communities. Another exemption was created in this year’s bioterrorrism bill, HR 3448, which President Bush signed into law (PL 107-188) on June 12, 2002. That bill requires local drinking water utilities to conduct terrorism vulnerability assessments, but exempts the assessments from FOIA.

The "voluntary disclosure" FOIA exemption in the homeland security bill is seen by many as a reincarnation of several earlier failed industry lobby campaigns to empower companies to remove embarrassing, inconvenient, or incriminating information from the public record merely by submitting it to the government. A lobbying campaign in the mid-1990s sought passage of a federal "audit privilege" law, which EPA opposed. Some 20 states eventually passed such laws.

A second such effort over the past two years operates in the name of "critical infrastructure security." HR 2435 (known as the Davis-Moran bill) was introduced well before the "9/11" terrorist attacks and S 1456 (Bennett-Kyl) was introduced immediately after. These bills were pushed by major industry groups, but drew stiff opposition from environmental and right-to-know groups and never made it to the hearing stage.

Industry groups and the Bush administration argue that such provisions are necessary to keep terrorists from knowing about safety, health, and environmental vulnerabilities that they could exploit to harm U.S.citizens. Environmentalists argue that public disclosure of such hazards is the best way -- without top-down government regulation -- to push companies and governments to make facilities safer in the first place.

The journalism and media groups opposing Section 204 of the homeland security bill argued that it is unnecessary. They say FOIA already has exemptions for business secrets and national security information that can be used to address infrastructure security concerns.

The administration’s homeland security bill went before the House under very unusual procedures.Under a special rule (H Res.449), it was referred to a dozen major committees,with a short time to consider it and make recommendations. The rule also created a Select Committee on Homeland Security,for the sole purpose of considering the bill. That panel was supposed to consider the various and possibly conflicting views of the dozen committees, and forge them into a single bill that could be sent to the floor of the full House.

The House Select Committee, with five Republicans and four Democrats, is chaired by Majority Leader Dick Armey (R-TX). Its recommendations generally track the administration’s bill and the wishes of the GOP leadership.

As this issue of EW went to press in late July, it appeared that House floor action would be completed before EW reached readers’ mailboxes.Armey had indicated that he wanted to keep some form of FOIA exemption in the bill, and there are indications that language similar to the Davis-Moran bill might be substituted.

Other versions of the "voluntary disclosure" exemption actually went much further than the administration’s bill -- offering immunity from prosecution and regulatory proceedings, exemption from antitrust laws, the Federal Advisory Committees Act, whistleblower laws, and more. With groups such as the U.S.Chamber of Commerce backing some of those provisions, it was unclear whether Democrats or libertarian groups could stop them.