A version of this article appeared in the January-February, 2003 issue of American Editor magazine.
Legislation rushed into reality in the waning days of the 107th Congress ordered the largest reorganization of the federal government since 1947 and dealt a bruising blow to state and federal freedom of information laws.
The open-government law exemption tucked away in the Homeland Security Act of 2002 was so broad that Sen. Patrick Leahy, D-Vt., called it “the most severe weakening of the Freedom of Information Act in its 36-year history.” The exemption "would hurt and not help our national security," said Leahy, "and along the way it would frustrate enforcement of the laws that protect the public's health and safety."
FOI advocates in Congress and in the access and right-to-know communities found the provisions particularly troubling in light of a long list of restrictions on access to information and increased government secrecy since the terrorist attacks on Sept. 11, 2001.
The 500-page homeland security law was passed by the House on Nov. 13, 2002, and the Senate on Nov. 19, and was signed into law by President Bush on Nov. 25. It also exempted the massive new department from requirements of the federal open-meetings law, the Federal Advisory Committee Act.
"The saddest result from this bill is not even that it will restrict access to information about what is being done to protect local communities from threats to the infrastructure, it's that the existence of a threat won't be known until it's too late," said Kevin M. Goldberg of Cohn and Marks LLP, legal counsel to the American Society of Newspaper Editors.
The FOIA exemption in the Homeland Security Act is titled the Critical Infrastructure Information Act of 2002. Proposals for FOIA exemption for critical infrastructure information had languished in the White House or Congress since 1997. But the idea gained new life last spring in one sentence in the White House's 35-page proposal for a new Homeland Security Department. In the House bill that emerged, that sentence had become 11 pages, fleshed out by language from separate bills proposed earlier in the House and Senate.
Several members of Congress were alarmed by the damage these provisions would do to access and accountability and were unconvinced that it would improve the nation's security. The proposed exemption forged a loose alliance of press, public interest and right-to-know organizations. Persuaded that they could not eliminate the provisions entirely, they worked with Senators Leahy, Carl Levin, D-Mich., and Robert Bennett, R-Utah, to produce a bipartisan compromise that would have been less damaging to access.
However, the drive to send the homeland security legislation to the president before the end of the session became a juggernaut when Congress returned from the election campaign recess. Despite tough editorializing against the FOIA exemption by a number of newspapers and feverish final-days negotiations by opponents, the Senate compromise fell by the wayside.
According to its proponents, the FOIA exemption was designed to ease industry concerns about revealing sensitive business information and to encourage companies in the telecommunications, transportation, financial services and other sectors to share material about critical infrastructure vulnerabilities with the Homeland Security Department.
In addition to exempting such voluntarily submitted material from disclosure, the new law criminalizes the intentional disclosure of such information by government employees with penalties including firing, fines and up to one year in prison. It immunizes companies from civil liability in any legal proceedings brought by local authorities or private citizens based on the voluntarily submitted material. And it trumps local and state FOI laws.
The new law also codifies a new category of restricted information by instructing the president to "identify and safeguard homeland security information that is sensitive but unclassified." Because the law does not define the word "sensitive," Steven Aftergood of the Federation of American Scientists wrote in Secrecy News, the requirement "could be used to justify expansive new restrictions on the disclosure of unclassified information."
Even routine information about critical infrastructure alerts issued to the public cannot be disclosed, including "information that is proprietary, business sensitive, relates specifically to the submitting person or entity, or is otherwise not appropriately in the public domain."
Relieving committees and task forces created within the department from requirements of the federal open-meetings law could mean that meetings won’t be open to the public or press, notice won’t be filed in the Federal Register, and minutes and records won’t be kept.
And because such panels wouldn’t have to be politically balanced, "the new department would seem to have a lot of leeway to solicit advice from only one set of speakers,” said Jon Devine, senior attorney for the Natural Resources Defense Council, one of the organizations that worked to delete those provisions of the law.
“Our greatest concern is that the bill seeks to get lots of information about vulnerabilities from private companies by shielding it in virtually every way from public use or disclosure, but does almost nothing about those vulnerabilities,” said Devine.
“There will be no sunshine on the department’s activities,” said Gary Bass, executive director of OMB Watch. “Secrecy will be shrouding the department’s operations, whether in the information submitted to it or in the actions it takes to get advice from outside players.”
Bass has taken a lead role in trying to assemble a coalition of public-interest, civil-liberties, environmental, press and other groups to address the FOIA exemptions in the Homeland Security Act, as well as other restrictions on access and right to know.
While praising the job the press did on covering the exemptions in the Homeland Security Act, Bass said he would have liked to see more news stories earlier because it might have helped those working with members of Congress and their staffs to defeat the exemption.
“People didn’t know enough soon enough about this issue,” said Bass. “The press coverage focused on the larger bill creating the department. The exemption components were hardly ever mentioned, so the net result was that the public knew very little, Congress knew very little, and it became a peripheral issue.”
Public-interest groups also have to do a better job, Bass said. “We did not have a good way of explaining the problem to reporters so it would have been easier to cover. We have to do a better job of framing our message.”
That will be one of the issues facing the new coalition Bass is helping to build. “We have to make sure that policy makers and the public understand what’s at stake: a core democratic principle of openness," he said. “We can’t undo in the name of homeland security basic democratic tenets that have lasted more than 200 years.”