Imagine a whistle blower tells you about dangerous toxic waste sites at a local company, but your attempts to verify the information with environmental protection agencies have failed.
Then imagine the source tells you to check another federal agency – which you are told definitely has information on the dumps. But when you call the agency, your request is turned down cold. The information is off limits, a spokesman says, so it won’t tip off terrorists to a potential target.
Openness advocates fear such a scenario will become reality, given the direction in which homeland security legislation is moving in Congress. Others, including industry representatives, say such concerns are overblown.
The subject of the debate is language that would allow the Department of Homeland Security to withhold from the public certain details about the nation’s “critical infrastructure,” meaning everything from water pipes to phone lines. Specifically, the provisions under consideration would exempt from the Freedom of Information Act (FOIA) material that could potentially open critical infrastructure facilities to terrorist attack.
President Bush and other supporters insist such a step is needed to convince businesses to cooperate fully with the war on terrorism. They argue this assurance of confidentiality is the only way companies will candidly disclose their vulnerabilities and work closely with the government to correct them.
The exact wording of the FOIA exemption was unresolved when Congress adjourned for its August recess; the House and Senate have different versions. As this issue went to press, Congress was scheduled to reconvene shortly after the Labor Day holiday, and the homeland security legislation was expected to be a top priority.
The Society and other media organizations support the Senate language, which is included in legislation approved on July 25 by the Senate Governmental Affairs Committee. Committee Chairman Joe Lieberman, D-Conn., said the bill “can, will and should be the basis for the Senate’s final product.”
Under the homeland security plan, 22 federal offices and agencies would be wrapped into a single Cabinet-level agency with a workforce of about 170,000 people and a $38 billion annual budget. It has been billed as the largest proposed reorganization of the federal government since President Truman created the Defense Department, the Central Intelligence Agency and the National Security Council in the late 1940s.
Though FOIA proponents, such as the Society, prefer that no critical infrastructure exemption be included in the legislation, they are supporting the Senate language because it is considered to have a much narrower scope than the House’s bill.
“No one wants more government records to be exempted from the FOIA, except perhaps those with something to hide,” said Robert D. Lystad, a partner at Baker & Hostetler LLP, the Society’s First Amendment counsel. The firm spearheaded a lobbying effort among media groups this summer to limit the types of records that would be exempted by the homeland security legislation.
But supporting the Senate version is different from applauding the concept. The exemptions raise a controversial question: When is a “vulnerability” a dangerous secret to keep?
Exempting critical infrastructure information from disclosure could hide potentially serious flaws, said Rebecca Daugherty, director of the FOI Service Center at the Reporters Committee for Freedom of the Press. “One of the best ways to solve a problem is to put a lot of eyes on [it],” Daugherty said. “But if the problem only belongs to industry – or belongs only to industry and government – and other people aren’t allowed to see it, then you diminish the number of people who could help you solve that problem.”
That should not be a concern, said Chris VandenHeuvel, spokesman for the American Chemistry Council, which represents DuPont, Dow and nearly 200 other chemical manufacturing companies. Maintaining the confidentiality of facilities’ weak spots is not aimed at keeping the public in the dark, he said. “Our bias is generally toward openness as much as possible,” he said.
For instance, he said, public information chemical manufacturers submit to a variety of federal agencies would be unaffected by the FOIA exemptions in the homeland security bills. Those submissions include worst-case scenario reports to the Environmental Protection Agency, which detail the potential impacts of an accidental release. Unlike the voluntary submissions envisioned in the homeland security legislation, however, the worst-case scenario plans are required by the Clean Air Act.
Concerns that terrorists could use the worst-case scenario information to target lethal plants have led the EPA to limit the public availability of the information, and similar worries are driving efforts to put critical infrastructure information outside the scope of FOIA. The vulnerabilities of plants, VandenHeuvel said, is “exactly the type of information you don’t want to give to the enemy.”
But opponents of the critical infrastructure exclusion argue that FOIA’s nine exemptions more than adequately protect sensitive information. For example, exemption one allows for the withholding of information for national security reasons, and exemption seven gives agencies broad discretion to shield files relating to law enforcement.
In addition, exemption four – the one discussed most often in the critical infrastructure debate – covers trade secrets and other delicate business information. Many FOIA requesters think that exemption four – as interpreted by the courts – already is far too broad and does not need to be supplemented with the additional restrictions contemplated in the homeland security bills.
Particularly repugnant to many observers is the 1992 decision of the U.S. Court of Appeals for the District of Columbia in Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871 (D.C. Cir 1992). That decision is generally considered to have broadened the authority of agencies to withhold business information voluntarily submitted to the government – just the type of submissions envisioned by the homeland security bills. In perhaps the most telling illustration of how much FOIA advocates oppose the House homeland security language, they support Senate wording that would essentially codify the Critical Mass decision into law.
Even some members of the Bush administration have acknowledged that there are adequate tools in place to prevent disclosures the critical infrastructure proposals envision.
In May 8 testimony before the Senate Governmental Affairs Committee, the director of the FBI’s National Infrastructure Protection Center (NIPC) said there are “sufficient provisions in the FOIA now to protect information that is provided to us.” Ronald Dick mentioned, in particular, exemptions four and seven. But he testified in favor of additional exclusions for critical infrastructure material. “Clearly, there is room for increasing the private sector’s confidence level in how we will protect their information from public disclosure,” Dick said.
The U.S. Chamber of Commerce supports that opinion. Chamber spokesman Joe Rubin acknowledged that businesses are already cooperating with the government through organizations such as NIPC (the General Accounting Office has identified six such groups in various departments). But, he said, there is “quite a lot more that can be shared,” such as threat and damage assessments.
A nod to business is unnecessary, opponents said, arguing that industry representatives have never given an example where sensitive information has been disclosed through FOIA.
Lawmakers, however, have cited instances in which the private sector has withheld information because it didn’t believe the government could maintain its confidentiality.
During the House’s July 26 debate on the homeland security legislation – as members considered an amendment from Rep. Jan Schakowsky, D-Ill., to delete the FOIA exclusion – Rep. Tom Davis, R-Va., said that last year companies were reluctant to share information about Internet vulnerabilities. (The Schakowsky amendment was defeated, as was one offered by Davis that would have expanded the critical infrastructure protection to information submitted to agencies other than the Department of Homeland Security.)
Skeptics such as Alyssondra Campaigne, legislative director for the Natural Resources Defense Council, wonder how affording corporations greater secrecy is going to make them more forthcoming. “We’ve just never seen that,” Campaigne said, “and we’re not optimistic (that if the homeland security language is enacted) we’re going to suddenly see people turning over loads of new documents.”
Many actually fear that the reduced likelihood of public scrutiny actually will embolden corporations to cover up mistakes, much the same way Enron and WorldCom hid their difficulties from regulators.
Conversely, some observers have said the protection of critical infrastructure information might prompt “document dumps” – when companies provide loads of incriminating documents to the Department of Homeland Security, knowing the information will not be disclosed by government. The House bill would exempt submitters from civil prosecution that could arise from information provided to the Department of Homeland Security; the Senate bill would not.
Critics of the proposed FOIA exemption also wonder that, if this critical infrastructure information is so important, why not require these submissions instead of “coaxing [them] … by relaxing the disclosure law that is a cornerstone of open government,” as Schakowsky argued during floor debate.
Arguments like that miss the point, U.S. Rep. James Moran, D-Va., countered during the debate. He said the intent is to foster “collaborative and constructive business-government cooperation in the cause of homeland security.”
Though Moran said the House provision was a narrowly tailored approach to withholding critical infrastructure information, members of the FOIA community disagree. They believe that the Senate version – written with the help of longtime FOIA supporter Sen. Patrick Leahy, D-Vt. – would exempt far less material from disclosure.
Campaigne said the Senate version “balances public accountability with security needs.”
One of the key differences is that the Senate bill would limit the exemption to “records” submitted by the private sector instead of the broader term, “information,” used in the House bill. The Senate bill also would not pre-empt state or local sunshine laws as the House bill would.
Additionally, the Senate bill specifies that voluntary submissions do not include materials that are required in order to obtain benefits such as government grants, loans or permits. The House bill is much less specific.
At this point, the outcome of the debate is far from certain. Some observers worry there will be attempts in the Senate to dilute the compromise reached by Leahy and other key lawmakers, including Sens. Robert Bennett, R-Utah, and Carl Levin, D-Mich.
But even some supporters of the Senate language wonder what – if anything – the provision actually will accomplish. Said Campaigne: “This isn’t going to do anything to make us all safer.”
Mike Sherry was the Society’s Pulliam/Kilgore Freedom of Information intern this past summer in Washington, D.C. In May, he received his master’s degree from the University of Missouri School of Journalism.
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