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2003 FOI update: Congress

By Kevin Goldberg

Ordinarily, when only two laws restricting access to information are passed, the access community considers it to be a good year. However, when one of those laws creates a new exemption so large that it effectively guts the Freedom of Information Act, then it is a bad year, indeed.

Though there were not many bills that were introduced or that received hearings in the second session of the 107th Congress, the passage of the Homeland Security Act garnered plenty of attention from public interest, press, civil liberties, environmental and other groups throughout the summer of 2002. Despite massive resistance that ultimately fell short of its goal of removing key provisions from the Homeland Security Act altogether, these groups felt confident that compromise language reached in August would minimize the harm to access this bill would cause. Unfortunately, after the Fall 2002 congressional elections, all that work was undone as a sweeping exemption was forced through first the Senate and then a Conference Committee, resulting in legislation that Sen. Patrick Leahy, D-Vt., described as “the most severe weakening of the Freedom of Information Act in its 36-year history,” and something which “guts the FOIA at the expense of our national security and public health and safety.”

Though it gained less attention, the Agriculture, Conservation and Rural Enhancement Act of 2001, which became law in May 2002, also continued a disturbing trend of favoring individual privacy over public access. Congress also passed a relatively non-controversial E-Government Act, but once again failed to move any of the numerous proposals related to cameras in the courtroom, human rights information or individual privacy.

Homeland Security Act
For the past two sessions of Congress, there have been numerous bills introduced proposing a FOIA exemption that would encourage private companies to share with the government information related to the nation's critical infrastructure. As of April 2002, the most likely to pass was S 1456, the Critical Infrastructure Information Security Act of 2002. The bill, introduced by Sens. Robert Bennett, R-Utah, and Jon Kyl, R-Ariz., would have created three protections for companies choosing to share such information with the government:

  • An antitrust exemption allowing these companies to share information with each other and with government agencies.
  • An FOIA exemption for information which is shared with the government.
  • Civil immunity providing that information shared with the government may not be used to prove liability in any civil action unless that information was independently obtained by the opposing party in that action.

A number of groups fought S 1456 because of the serious threat it posed to the ability of citizens to learn about dangers to security in their own backyards. Yet, S 1456 eventually became a pragmatic alternative after the introduction of the Homeland Security Act in the House of Representatives. Introduced as HR 5005 on June 24, 2002, by Rep. Dick Armey, R-Texas, the Homeland Security Act stated in Section 204:

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.

Section 204's reach was so broad that a private company could conceivably share information with the government, state that it related to infrastructure vulnerabilities or a vulnerability to terrorism, and never have that information, or even the fact of its existence, see the light of day, as it is highly unlikely that a claim of "vulnerable to terrorism" would be second-guessed by the courts. Almost immediately, open-government advocates shifted their focus from fighting S 1456 to fighting the Homeland Security Act exemption.

As soon as opposition to Section 204 hit the Hill, alternatives were forwarded from all sides. The first to become a viable option was a proposal set forth by the White House which combined the worst elements of S 1456 and the original, one-paragraph Section 204 of the Homeland Security Act. It was eventually passed by the House.

Meanwhile, Sens. Bennett, Leahy and Joseph Lieberman, D-Conn., were working toward compromise language that would be less stringent than the House version, but would still provide some protection for the voluntary submission of critical infrastructure information. At this point, it became apparent that defeating the FOIA exemption altogether was a lost cause. The goal switched to minimizing damage. When the Senate eventually passed its compromise language, it appeared that disaster had been averted.

The compromise bill did the following:

  • Provided an exemption from FOIA for any records voluntarily submitted to the Department of Homeland Security by a private company which pertained to the vulnerability of and threats to the critical infrastructure.
  • Defined the critical infrastructure as any system or asset, whether physical or computer-based, so vital to the United States that its incapacitation or destruction would have a debilitating impact on security, national economic security, national public health or safety.
  • Required that the records in question not customarily be made available to the public and that the information be designated by the provider as confidential.
  • Provided that the information be protected from disclosure if there was no requirement that it be submitted and if the records were not submitted to satisfy any legal obligation or requirement or to obtain any grant, permit, benefit, loan, reduction or modification of agency penalty or ruling.
  • Provided that the records could still be used in any criminal proceeding, including agency regulatory proceedings or congressional investigations, or as evidence in a civil lawsuit.
  • Provided redaction provisions to make access as comprehensive as possible, allowing any reasonably segregable portion of a record to be provided to any person.
  • Provided no penalties for those who released protected information.

Many access groups who had grudgingly supported this compromise had finally come to terms with the fact that they were helping to pass a FOIA exemption when the November elections changed everything. Upon return to a "lame duck" session in November, Senate Republicans, with little vocal opposition, rushed through a version of the Homeland Security Act that mirrored the House version.

When a private company provides any critical infrastructure information to the government, if such protection is requested when the information is voluntarily submitted to any federal agency, an antitrust exemption allows private companies to share information with each other and the government.

There is a "civil immunity" provision which prevents any information shared with the government from being used as evidence in a civil liability proceeding; though information can still be used in criminal, regulatory, and congressional proceedings.

Information, not records, must be voluntarily furnished to receive this exemption, meaning that if a private entity orally discloses information that is not reduced to writing and that information is later memorialized into an agency record, it becomes exempt from FOIA.

There is no explicit, or limiting, definition of “critical infrastructure information.” The only requirements that exist are that the information not customarily be in the public domain and that it be related to the security of the critical infrastructure or protected systems. The definition of "furnished voluntarily" is quite broad. It simply covers anything that is voluntarily submitted, whether or not the agency has the authority to require its disclosure.

A submission is not voluntary — and, thus, accessible — if the information:

  • Is being used in a civil action brought under the securities laws, and the materials were originally filed pursuant to certain SEC regulations.
  • Was filed as part of a sale or offer of securities.
  • Was filed for the purpose of making a licensing or permitting determination as part of a regulatory proceeding.

The law provides no redaction provisions that would allow for release of some portions of the records.

Further, this law endangers whistleblowers, as any government employee who releases critical infrastructure information will be fired from his or her job, fined and potentially subject to up to one year in jail.

A number of federal advisory committees which heretofore would have had their proceedings subject to public access are now relieved of that requirement.

The harsh nature of this bill has opponents renewing their fight in the 108th Congress. Already bills have been introduced by Sen. Tom Daschle, D-S.D., (S 6, the Comprehensive Homeland Security Act of 2003) and Sen. Lieberman (S 41) which would amend the FOIA or Federal Advisory Committee Act portions of the Homeland Security Act.

Sens Leahy and Levin, D-Mich., who with Sen. Bennett, R-Utah, had pushed the "compromise language" discussed above, announced on March 12 that they would reintroduce that language as a free-standing bill that would amend the FOIA provisions of the Homeland Security Act.

The Agriculture, Conservation and Rural Enhancement Act of 2001
One issue that sneaked up on the access community in the early part of 2002 was the Agriculture, Conservation and Rural Enhancement Act of 2001 (also known as The Senate Farm Bill), which was introduced on Nov. 27, 2001, by Sen. Tom Harkin, D-Iowa. The bill became law on May 13, 2002.

Section 204(g) of this law exempts from FOIA all information developed by the United States Department of Agriculture regarding natural resources programs administered by the Natural Resources Conservation Service or the Farm Service Agency. This includes a number of key documents relevant to local communities, including all farm conservation plans. The most important aspect of these documents is their itemization of the amount of federal cost-share dollars provided to farmers to implement the plan — the law is expected to provide nearly $44 billion to farmers over a 10-year period. The act prevents access to a number of key documents related to the receipt of federal subsidies by those wishing to take corrective action through the receipt of farm subsidies.

Access advocates responded with vigor, if not a little late. Letters of protest were sent to the Agriculture Committees in both chambers of Congress. A flood of news articles, editorials and op-eds were published. The Agriculture Committee’s staff disagreed with the news media's assessment that the law would irrevocably harm information-seekers by reducing the amount of information available under FOIA. Most editorialists and columnists had argued that the bill would not only prevent access to the applications filed by those seeking farm subsidies, it also would prevent access to the identities of those who had applied for, and been denied, such subsidies. The Committee staff agreed, but argued that the Department of Agriculture rarely provided this information to the public anyway — neglecting, of course, the complaint that the information would certainly never be available if this section were made law. In the end, it appears that information regarding the monies actually distributed in the form of conservation subsidies, including the identities of various recipients and the amounts they receive, will be the only farm subsidy information available through FOIA.

The E-Government Act of 2001
Government has long been known to lag well behind the private sector when it comes to utilizing the power of technology. Sen. Lieberman sought to change this when he introduced the E-Government Act of 2001 (S 803) on May 5, 2001. Rep. Jim Turner, R-Texas, took the lead in this area on the House side on July 11, 2001 when he introduced a similar bill (HR 2458). After differences between the two bills were ironed out through a series of compromises, HR 2458 was signed into law on December 17, 2002.

The law provides a mix of administrative and substantive measures which, for the most part, are calculated to increase electronic access to government records. There is some question as to whether the implementation will truly bear the fruit which was originally promised.

The administratively oriented sections of the bill create two new positions in government which are intended to increase the oversight of electronic access. The first is the establishment of an Office of Electronic Government within the Office of Management and Budget, headed by an administrator who is supposed to work with offices within OMB to oversee the implementation of E-government; one of the administrator's main duties is to keep tabs on the “access to, dissemination of, and preservation of government information.” Also created, within the Executive Branch generally, is a Chief Information Officers Council. This is to be the primary interagency forum for improving executive branch practices related to E-government.

Review of agency performance is also affected. Provisions require agency heads to consider E-government in most major decisions, including performance measurement for employees, reviewing customer service performance and agency productivity. The law requires agency head, when promulgating policies and implementing programs regarding the provision of government information and services over the Internet, to consider the impact on persons without Internet access. It also requires agencies to work together to maintain and provide an integrated system of providing public access to government information and services.

The law requires massive electronic access to Judicial Branch documents. It directs all federal courts to create and maintain Web sites that contain specific information regarding location and contact information for the courthouse, local rules, access to docket information, access to the substance of all written opinions and access to all information contained at the courthouse in electronic format. It directs the Judicial Conference of the Administrative Office of United States Courts to explore the feasibility of technology to post online dockets with links to all filings, decisions and rulings in the case.

There are also access provisions related to executive agencies. Subject to a specified timetable and limitations, an agency must ensure that its Web site includes all information required to be published in the Federal Register under FOIA, that its Web site accepts electronic submissions, and that there be electronic dockets for rulemaking proceedings. Agencies are also required to solicit public comments and establish processes for determining which government information it intends to make available by the Internet. Finally, a government-wide public domain directory of public government Web sites must be created.

Cameras in the courtroom
The trial of the so-called "20th Hijacker," Zaccarias Moussaoui, prompted the introduction of companion bills in each house of Congress dedicated to providing closed-circuit television access for victims of the Sept. 11 tragedy. The House version, HR 3611, was introduced on Jan. 23, 2002, by Rep. Tom Davis, R-Va. It was referred to the House Judiciary Committee but did not receive any attention from that committee. S 1858, introduced on Dec. 18, 2001, by Sen. George Allen, R-Va., fared batter. It passed the Senate Judiciary Committee almost immediately, on Dec. 20, 2001, and received the approval of the full Senate that same day. Despite being referred to the House Judiciary Committee on Jan. 23, 2002, it received no consideration in that body.

Introduced repeatedly in recent years, bills that would allow media coverage of federal court proceedings received only scant consideration after being introduced early in the 107th Congress, despite continued vocal support from the electronic media. HR 2519, introduced on July 17, 2001 by Rep. Chabot, R-Ohio, did not move at all. S 986, introduced on June 5, 2001, by Sen. Grassley, R-Iowa, did pass the Senate Judiciary Committee late in 2001, but garnered no attention in 2002.

Human Rights Information Act
This bill was introduced early in the 107th Congress, on March 21, 2001, by Rep. Tom Lantos, D-Calif., but languished save for one subcommittee hearing late in 2002. The bill sought to promote human rights, democracy and the rule of law by providing a process for executive agencies for declassifying and disclosing, on an expedited basis, certain documents relating to human rights abuses in countries other than the United States. It was referred to the House Government Reform Committee, where its only action was a favorable vote by that committee's Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations on Sept. 17, 2002.

Sequel to the USA Patriot Act
One major concern on the horizon in 2003 is controversial legislation that was drafted by the Department of Justice entitled the Domestic Security Enhancement Act of 2003, but known to most civil liberties advocates as USA Patriot Act II after legislation rushed through Congress in 2001 that increased the surveillance and detention powers of the government. Though not yet introduced as a bill, it has been thoroughly reviewed from all sides and is known to have several provisions which would affect access to government information by:

  • Legislatively resolving cases pending the 3rd and 6th U.S. Circuit Court of Appeals that would determine whether a constitutional right of access exists to “special interest” immigration hearings. This bill would codify the “Creppy Memo” issued by the Department of Justice which prohibits access to even docket information regarding such cases.
  • Depriving access to “worst case scenario” information required to be produced by private companies under the Clean Air Act. This bill would limit access to this information (which lets the government know the resultant community damage, including deaths and injuries, expected in the event of an attack on or accident at a chemical plant) by prohibiting those reading such records from making copies or even taking notes.
  • Preventing grand jury witnesses from discussing their testimony with any member of the public or the news media.
  • Allowing private companies to share information they have gleaned in their own investigation of terrorism with the government in exchange for immunity from civil liability in the event that their information turns out to be false and injures the subject’s reputation.
Congressional Research Service Documents
Sen. McCain, R-Ariz., has reintroduced a resolution that would allow for greater public access to Congressional Research Service documents, long considered to be the most comprehensive publications on Capitol Hill. Currently, they are only directly available to members of Congress with the taxpayers that fund this service only able to obtain these objective research documents through a congressional office. McCain's legislation would change this, allowing Internet access to certain forms of CRS publications, as well as Senate lobbying and gift report filings and Senate and Joint Committee documents.

In 1998, this legislation was introduced as a free-standing bill (S 1578) that never made it out of the Senate Rules Committee. The bills were re-introduced as S 393 and HR 654 in 2000 but again did not make much headway. Finally, the legislation was introduced in the form of a Senate Resolution (S 21), similar to what will be pending this session.

Two privacy bills have already been introduced in the 108th Congress. On Jan. 7, 2003, Rep. Freylinghuysen, R-N.J., introduced the Online Privacy Protection Act of 2003. This bill seeks to protect the personal privacy of Internet users in much the same way that the Children's Online Privacy Protection Act protected children under the age of 13 who provided personal information to Web site operators.

A more interesting, if not slightly disturbing, bill is HR 338, the Defense of Privacy Act introduced on Jan. 27, 2003, by Rep. Chabot. This bill will require that agencies, in promulgating any notice of proposed rulemaking related to a rule affecting internal revenue matters, perform an "initial privacy impact analysis" to determine the effect of the proposed rule on personal privacy.

Kevin Goldberg of the Washington, D.C., law firm of Cohn & Marks is legal counsel for the American Society of Newspaper Editors.

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