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2002 FOI update: Federal legislation

By Kevin Goldberg

While the usual spate of legislation was introduced in the first session of the 107th Congress favoring personal privacy over the public’s right to know, most of those bills were introduced before Sept. 11 and do not appear to have gained any momentum after that date. Indeed, only one major bill affecting access to government information has actually been passed in the 107th Congress. That law — the USA Patriot Act — actually reduces the amount of personal privacy afforded to citizens vis-à-vis the government.

Two other bills — a holdover from the 106th Congress related to critical infrastructure information, the other dealing with monies paid out by the federal government to farmers — are poised to move through Congress at a moment’s notice and would greatly restrict access to fundamental information of importance to local communities.

USA Patriot Act

What contains 342 pages, a congressional lifespan of three days, and immeasurable threats to civil liberties? HR 3162, the “USA Patriot Act,” which was introduced in the House of Representatives on Oct. 23 and signed into law on Oct. 26. The bad news is that this law changes 15 existing statutes in order to “increase security,” even though some question whether the civil liberties that have been taken away actually contribute to that effort.

The main thrust of this law with regard to privacy involves a significant loss of protection against government intrusion. Various sections of this legislation increase the government’s ability to engage in traditional methods of surveillance such as wiretapping, residential searches (with and without search warrants), pen and trap orders, and subpoenas of suspected criminals. None of the information collected by the government will be available for public access.

The most notable provision of the USA Patriot Act in terms of restricting access to information involves the expansion of powers under the Foreign Intelligence Surveillance Act. Changes to this act allow the federal government to spy on citizens and foreigners in the United States who are suspected of being agents of a foreign government. The attorney general may obtain a wiretap against any such person even if probable cause — the usual standard for obtaining wiretap authority — does not exist. This authority can be obtained from any court authorized by the Foreign Intelligence Surveillance Act; these courts traditionally operate in greater secrecy than federal courts generally.

Critical infrastructure information

Bills that would allow private industry to share information with the government that is related to the security of our nation’s critical infrastructure are not new. In recent years, Reps. Tom Davis, R-Va., and Jim Moran, D-Va., and Sens. Robert Bennett, R-Utah, and Jon Kyl, R-Ariz., have introduced measures with the steadfast support of the technology sector. These bills have never gained enough momentum to make it to the floor of either chamber. However, efforts continue in the 107th Congress, where passage is more likely than ever.

In early 2001, it appeared that the Davis-Moran bill, HR 2435 — introduced on July 10 and referred to the House Government Reform Committee and the House Judiciary Committee — would finally get its chance for a floor vote. However, the hot summer months actually seemed to cool support for the bill. The focus has now shifted across the Hill to S 1456, the Bennett-Kyl measure, which was the subject of intense negotiation and revision before being introduced on Sept. 24 and being referred to the Senate Committee on Governmental Affairs.

Action on this bill has been primarily behind the scenes. No hearings have been held. Continued industry support, however, has many in the requester community fearing that it will be an uphill fight to derail this bill once its train leaves the committee station.

S 1456 differs only minimally from its sibling and older cousins. The bill aims to encourage private entities to share information related to the critical infrastructure with the federal government. Critical infrastructure is defined as "any industry sector that provides a continual flow of goods and services essential to the defense or economic security of the United States, the functioning of government, or the health, welfare or safety of the public,” meaning such things as telecommunications, financial and banking, electric, oil and gas, water, and transportation facilities.

The bill contains three main exemptions to the FOIA for private entities that voluntarily discuss with the government any information related to possible vulnerabilities, security breaches of the critical infrastructure or measures taken to prevent such breaches:

  • An antitrust exemption that allows these companies to share information with each other and with federal agencies.
  • Information that is shared with the government is exempt from public access through the FOIA.
  • Information that is 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.

No hearings have been scheduled on the bill at this time, but access advocates continue to work with Senate staff and administration personnel (who appear to generally support the bill) to create a workable compromise.

Senate farm bill

When it was introduced on Nov. 27, by Sen. Tom Harkin, D-Iowa, many interested in access to information paid little attention to the Agriculture, Conservation, and Rural Enhancement Act of 2001. After all, it was referred to the Senate Committee on Agriculture, Nutrition and Forestry — not a place where FOI bills have been known to thrive. A close examination of Section 204(g) of the bill has since piqued the interest of those who are infinitely more interested in pork barrels than pork bellies.

This section would exempt from the 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 — S 1731 is expected to provide nearly $44 billion to farmers over a 10-year period.

Information concerning issues such as land cover, land use, soil erosion, prime farmland soils, wetlands, habitat diversity, and conservation practices would be inaccessible for any useful purpose (this information currently is accessible). The bill contemplates that information would only be available when aggregated to a degree that would effectively prevent the public from determining the existence of specific problems, such as those involving pollution of local groundwater, or what is being done to remedy such a problem.

S 1731 has passed the Senate. A House version of this bill, HR 2646, now contains this provision.

Cameras in the courtroom

One of the bright points of the post-Sept. 11 access world is a spotlight on the issue of access to courtrooms. Specifically, the debate on whether cameras should be televising the trials of alleged terrorists has come into full focus. While court decisions have not been positive, legislation in Congress has gained renewed vigor.

On Dec. 18, Sen. George Allen, R-Va., introduced S 1858, which would allow survivors of the Sept. 11 attacks and the relatives of those killed to watch the trial of alleged conspirator Zacarias Moussaoui via closed circuit television. A companion bill, HR 3611, was introduced in the House by Rep. Tom Davis on Dec. 23. Neither has had a hearing in its committee of reference.

One bill that has moved, however, is S 986. Introduced on June 5, this bill is a repeat effort by Sen. Charles Grassley, R-Iowa, to allow federal judges to determine whether to allow televised coverage of trials being held in their courtrooms. Such legislation traditionally has not received much consideration from Congress, but S 986 broke new ground by passing the Senate Judiciary Committee on Nov. 29. Its House companion, HR 2519, was introduced on July 17 by Rep. Steve Chabot, R-Ohio, and has not received such beneficial action in that chamber’s Judiciary Committee.

Privacy Commission

Efforts to create a “privacy commission” that would study issues related to privacy and access were revived in the 107th Congress. This is the second consecutive Congress, which has seen a bill on this topic. However, while early efforts in 2000 garnered a number of hearings in the House Government Management, Information and Technology subcommittee of the Government Reform Committee, these bills have been less active in the 107th Congress. No hearings have been held on either bill.

The House bill, HR 583, introduced by Rep. Asa Hutchinson, R-Ariz., on Feb. 13, passed the subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations of the Government Affairs Committee on May 8. S 851, introduced by Sen. Fred Thompson, R-Tenn., on May 9, appears as though it will die in the Senate Committee on Governmental Affairs.

Human rights information

Every Congress seems to bring some form of special interest access legislation, and the 107th Congress is no different. While previous bills have dealt with records pertaining to Nazi War Criminals or Japanese Imperialists, HR 1152 is intended to promote human rights, democracy, and the rule of law by providing a process for executive agencies to declassify on an expedited basis and disclose certain documents relating to human rights abuses in countries other than the United States.

It was introduced on March 21, by Rep. Tom Lantos, D-Calif., and referred to the Government Reform Committee, which has taken no action on the bill.

Legislation related to personal privacy

Early in the 107th Congress, legislators wasted no time in one of their favorite political ploys — introducing legislation which purports to protect personal privacy (although the legislation rarely appears as though it would achieve this goal). None of the privacy-specific bills introduced in the 107th Congress has received a hearing.

In the House, they include:

  • HR 1478 (Personal Privacy Information Act of 2001), introduced April 4 by Rep. Gerald Kleczka, D-Wis., to protect the privacy of individuals with respect to the Social Security number and other personal information, and for other purposes.
  • HR 2135, introduced June 12 by Rep. Tom Sawyer, D-Ohio, to protect consumer privacy.

In the Senate, they include:

  • S 324 (Social Security Number Privacy Act of 2001), introduced Feb. 14 by Sen. Richard Shelby, R-Ala. It would amend the Gramm-Leach-Bliley Act to prohibit the sale and purchase of the Social Security number of an individual by financial institutions, to include Social Security numbers in the definition of nonpublic information.
  • S 450 (Financial Institution Privacy Protection Act of 2001), introduced March 1 by Sen. Bill Nelson, D-Fla., to amend the Gramm-Leach-Bliley Act to provide for enhanced protection of nonpublic personal information, including health information.
  • S 1014, introduced June 12 by Sen. Jim Bunning, R-Ky., to amend the Social Security Act to enhance privacy protections for individuals, to prevent fraudulent misuse of the Social Security account number, and for other purposes.
  • S 1055 (Privacy Act of 2001), introduced June 14 by Sen. Dianne Feinstein, D-Calif. It would require the consent of an individual prior to the sale and marketing of such individual's personally identifiable information.

One notable omission

To end on a bright note, it is important to recognize what did not happen in 2001. Congress did not reintroduce the Official Secrets Act, which had passed both Houses in 2000 before a last-minute lobbying effort resulted in a presidential veto. President Bush was expected to support this bill.

The Senate was ready to introduce similar legislation that would have broadened the criminal intent, leading to prosecution for leaking classified information and allowing a person to be prosecuted even if he or she were a legitimate whistleblower or were leaking information that he or she thought would protect national security. It also would have broadened the categories of information which, if released, would lead to punishment.

According to Sen. Shelby, the main proponent of this legislation, current law does not cover unauthorized disclosure of “intelligence methods regarding sources and methods, counter-narcotics, counterintelligence capabilities and liaison relationships with foreign intelligence groups because they do not fall within the accepted definition of national defense information.” This proposal would have simply covered all classified information.

A hearing had been scheduled for Sept. 5 but was cancelled in the face of vigorous opposition. One panel of witnesses was to have included CIA Director George Tenet and Deputy Attorney General Larry D. Thompson to present the administration position on this bill. The second panel was to be comprised of members of the media, mainly representing the four signatories from last year’s letter to President Clinton which played a part in the final veto — the Newspaper Association of America, CNN, The New York Times and The Washington Post.

In the end, it is likely that four factors did this legislation in:

  • The attorney general indicated that he could support the notion of such legislation at some time, but would not support this legislation at this time. Further, CIA Director George Tenet said that he would take no position on the legislation, despite supporting the provision last year.

  • Increased lobbying and public opposition — including editorials and op-eds — gave Senate Intelligence Committee Chairman Graham confidence that he could tell Senator Shelby that cancellation of the hearing was the only option.

  • The existence of alternatives such as the convening of an interagency task force to study this issue and draft a final report prior to legislation provided another "out" for the committee.

  • Groups opposing a legislative approach to the problem of unauthorized disclosures of information mounted a strong and coordinated effort against the measure.

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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