I sat down to write this column the weekend after the November elections. What, I was going to ask and attempt to answer, would become of freedom of information after the Republicans take control of both houses in January?
You’re not reading that column, because the GOP isn’t waiting for January. One week after the election, before the formal change of leadership occurred, Republicans exercised their new muscle by pushing a “compromise” for the creation of the Department of Homeland through a lame-duck Congress.
Most of the media attention the bill received focused on the labor rules for the department’s 170,000 workers. That’s understandable, given that disagreement over the rules had stymied the bill in October. But deep within the bill was another section that slaps all 281 million Americans. In the name of homeland security, it sacrifices the American principle of open and accountable government.
The section creates a new and unnecessary exemption in the federal Freedom of Information Act. For those who fear that an all-Republican government will toss favors to business and industry, this bill is Exhibit One.
It exempts from disclosure any “information” about critical infrastructure provided voluntarily to the department – even if the information is sent first to another agency. It makes that information off limits for any government regulatory action or civil lawsuit. “Critical infrastructure” and “voluntary submission” are so broadly defined that this bill would exempt many more documents than are withheld today under the FOIA’s (b)(4) exemption. Also, the bill allows the federal government to supersede state Sunshine Laws.
The result: The bill would allow private companies to submit to the government far more information than necessary that would then immediately be closed. It creates a black hole into which industry can dump information about any mistakes, which would forever be hidden from the public. Want to know about a chemical leak at a plant down the road? Forget about it.
A Senate compromise drafted last summer was more narrowly written. It protected records, not information, pertaining to “the vulnerability of and threats to critical infrastructure (such as attacks, response and recovery efforts).” It did not trample on state law nor criminalize the release of information, as the House version does. It contained no immunity from lawsuits and made it clear that records submitted by companies to obtain grants, permits, licenses, benefits or other government approvals are still subject to the FOIA process.
It balanced two competing interests – industry’s and the public’s. It was the far better approach.
As I write this, SPJ and other pro-access groups are calling on the Senate to slow the railroad and insist on language that protects the public’s interest. It’s a long shot. By the time you read this, we’ll know how long the shot was.
Questions remain about how a GOP majority will treat a number of other issues. The party doesn’t walk in lockstep on these issues. Some Republicans, such as my neighbor John Ashcroft, are no friend of openness in government, while the new GOP senator from Texas, John Cornyn, is a believer. He has said Cheney’s energy task force records should be released, he objected to the proposed secrecy in the homeland security department and he expressed qualms about the lack of access to Guantanamo detainees.
Which view will prevail in Congress if or when it takes up:
• An FOIA exemption for “sensitive but unclassified information,” a dangerous I-know-it-when-I-see-it approach to closing records.
• An “official secrets act,” legislation to criminally punish leaks of classified information that would make any reporter using leaked information an accessory to a crime. Ashcroft said a new, tougher law isn’t necessary, but his October memo left plenty of wiggle room for U.S. Sen. Richard Shelby, R-Ala., and other proponents of this bad idea.
• Cameras in federal courts.
• Restoring the Presidential Records Act, a principled effort led by Republican Reps. Dan Burton of Indiana and Stephen Horn of California.
Lawmakers are often quick to dismiss our pleas on these bills as selfishly motivated. We’re just protecting our special interests, they say. Florida, the crux of so much national politics lately, has given us the best answer to that false argument.
Voters in the Sunshine State made a loud statement Nov. 5 in support of open government. By better than a 3-1 margin, they approved a constitutional amendment that requires a two-thirds majority in both houses of the legislature to add an exemption to the state Sunshine Law. I can think of no more persuasive way to make the point that citizens value open records and meetings as a way of keeping their government accountable.
Florida has long had a reputation of having the nation’s strongest Sunshine Law; open government is guaranteed in the state’s constitution. But a growing list of exemptions, accelerated by post-Sept. 11 fears, has slowly eroded the law. The resounding yes vote last month should stop that erosion.
The amendment, proposed and strongly supported by a coalition of Florida newspapers and press groups including SPJ, is a model for other states.
And for a Republican Congress.
Robert Leger is president of SPJ and editorial page editor of the Springfield (Mo.) News-Leader.
Tagged under: FOI
