FOIA [Freedom of Information
Act] exemption in the Homeland Security Act
by Bill Berkowitz
Z magazine, February 2003
Retired Admiral John Poindexter's sprawling
Internet spying plan, dubbed "Total Information Awareness,"
garnered the lion's share of attention in the run-up to the passage
of the Homeland Security Act (HSA), but there's another provision
of the Act that could have profound implications for the public's
right to know.
Tucked into the legislation is Section
214, a new Freedom of Information Act exemption. It's a small
provision, yet it is indicative of the Bush administration's predilection
for secrecy. A recent editorial in the St. Petersburg Times claimed
that the exemption threatened, "to reduce the public's access
to information in a way that could have serious implications for
Here is how OMB Watch, a long-time Washington,
DC-based government watchdog group, describes the exemption: "Information
'related to the security of critical infrastructure or protected
systems' that companies voluntarily give to the new Department
will now be automatically withheld from public disclosure. Moreover,
the information cannot be used in civil suits and any Department
employee providing such information will face criminal penalties,
thereby undermining basic whistleblower protections." The
new bill "preempts state law to insure that the information
is not disclosed by state openness laws. "
Homeland security promises to be a gold
mine for technology and security companies. Microsoft, for example,
recently named a new internal federal director of Homeland Security
to work with the government on information technology issues.
In the midst of this boom, privacy advocates are concerned about
the ubiquity and reliability of many of the surveillance projects
that are on the drawing boards or about to be put into action.
Under the Homeland Security Act, in order
to qualify for the FOIA exemption, a company would inform the
government about the critical infrastructure vulnerabilities of
their project. As the St. Petersburg Times noted, "Industry
could submit all sorts of information and call it critical infrastructure.
That way, regulators, consumer groups, and the media would be
precluded from seeing it, giving industries a tool to insulate
themselves from a degree of government and public oversight. Industries,
however, wouldn't be released of their responsibility to submit
regular safety and environmental reports to other regulatory agencies,
and those would remain as accessible as they are today. "
David Sobel, general counsel at the Electronic
Privacy Information Center (EPIC), said in a telephone interview
that there is currently no accepted standards as to what types
of projects could be covered by the critical infrastructure exemption.
"No one knows just how broadly this will be applied,"
he said. Sobel, who had testified several times at Congressional
hearings on this subject, is particularly concerned about companies
that would abuse the exemption.
Because of the exemption, privacy activists,
researchers, and journalists will be left in the dark when a system
fails or there are frequent snafus. In a recent interview with
Chemical & Engineering News, Steven Aftergood, director of
the Federation of American Scientists' Project on Government Secrecy
said: "We understand and acknowledge the need to keep some
infrastructure information confidential, but we're disappointed
that this exemption is drawn so broadly." The exemption "transfers
enormous authority to industry and gives it unusual control over
what information is allowed to enter the public domain,"
Senator Patrick Leahy (D-VT), the outgoing
chairperson of the Senate Judiciary Committee, warned that the
exemption "guts the FOIA at the expense of our national security
and public health and safety," Secrecy News, a publication
of the Federation of American Scientists, reported.
"This provision means that if a Federal
regulatory agency needs to issue a regulation to protect the public
from threats of harm, it cannot rely on any voluntarily submitted
information-bringing the normal regulatory process to a grinding
halt," according to Sen. Leahy.
"Public health and law enforcement
officials need the flexibility to decide how and when to warn
or prepare the public in the safest, most effective manner. They
should not have to get 'sign off' from a Fortune 500 company to
Not everyone thinks this exemption spells
imminent doom for FOIA. Harry Hammitt, editor of Access Reports,
an organization tracking access to government information for
more than 25 years, told me via an e-mail exchange, that he wasn't
"sure the Homeland Security exemption will have as much practical
effect as has been broadcast, but," he added, "it clearly
sets a very bad precedent and if it is used as an excuse to hide
information submitted by businesses, then it clearly will have
been a major minus."
Hammitt said that the real problem is
the issue of voluntary submission of information by corporations
to the government: "I really think if the government needs
this information it should require its submission," he said,
"not beg the private sector by promising confidentiality
but not making the private sector liable in any way for not cooperating.
As columnist, radio talk show host, and
political organizer Jim Hightower pointed out in an Alternet column
not long ago, "Secrecy...is now the prevailing ethos of the
White House. There's the secret government that Bush established;
the constant refusal to release public records...; Bush's attempts
to hide his father's presidential records and his own gubernatorial
papers from public view; the secret war on terrorism, complete
with secret arrests and closed military tribunals; the decision
to hide the results of the Pentagon's Star Wars missile tests;
the refusal to make public the SEC investigative files on Bush's
slippery stock deal with Harken Energy Inc."
Access Reports' Hammitt said, "This
Administration has the same basic distaste for open government
as we saw during the Reagan years, but I think it has been much
more aggressive in trying out new constitutional separation of
powers arguments in attempts to basically make such laws go away."
Ashcroft Retools FOIA
Hammitt's characterization takes us back
to October 2001 when, with only a few hard-core right-to-know
advocates paying attention, Attorney General John Ashcroft issued
a memorandum regarding FOIA policy. In preparation before the
events of September 11, the memo reflected "a movement back
to the policy of the Reagan administration," observed Access
Reports. The new policy superseded Attorney General Janet Reno's
1993 memo, replacing her "foreseeable harm" test, which
emphasized disclosure, with Ashcroft's "sound legal basis"
test that makes the withholding of records easier.
While these changes seem like legalese
blather-more subtle than substantive-they actually represents
a significant change in policy.
Since its inception, the Freedom of Information
Act "has been hailed as one of our greatest democratic reforms...allow[ing]
ordinary citizens to hold the government accountable by requesting
and scrutinizing public documents and records," observed
Ruth Rosen in a San Francisco Chronicle column. "This act
allowed greater access to FBI records; access that had been previously
severely proscribed. Without it, journalists, newspapers, historians
and watchdog groups would never be able to keep the government
honest," she added.
A refresher: The Freedom of Information
Act was enacted by Congress and signed by President Lyndon Johnson
in 1966. But it wasn't until seven years later when Congress,
in the aftermath of the Nixon White House's Watergate scandal,
overrode President Ford's veto and passed the Privacy Act of 1974.
Ruth Rosen calls the FOIA "our post-Watergate reward....
[and] our national sunshine law, legislation that forces agencies
to disclose their public records and documents. "
Although succeeding Attorneys General
have issued memos reversing or modifying the policies of their
predecessor, "there is no substantial empirical evidence
that any of these memos worked a significant influence on implementation,"
Access Reports notes. However, "They do set a tone by which
the administration will be known. "
In the October 2001 memo, Attorney General
Ashcroft recognizes, "It is only through a well-informed
citizenry that the leaders of our nation remain accountable to
the governed and the American people can be assured that neither
fraud nor government waste is concealed." Then he raises
the question of "other fundamental values" including
"safeguarding our national security, enhancing the effectiveness
of our law enforcement agencies, protecting sensitive business
information, and not the least,
preserving personal privacy." In
instructing agencies dealing with FOIA requests, Ashcroft pointed
out, "any discretionary decision... to disclose information
protected under the FOIA should be made only after full and deliberate
consideration of the institutional, commercial and personal privacy
interests that could be implicated by disclosure of the information."
Ashcroft assured agencies that should
they decide to withhold information, they will be fully supported
by the Department of Justice "unless they lack a sound legal
basis or present an unwarranted risk on the ability of other agencies
to protect important records. "
At a mid-March, 2002 conference in Philadelphia
on computer-assisted reporting sponsored by Investigative Reporters
and Editors, journalists pointed out that the number of FOIA request
refusals is on the rise and the time it takes to hear from the
government about a request has gotten longer. It's not, John Giuffo
writes in the Columbia Journalism Review, "just access to
sensitive data about infrastructure and water supplies...that
is being blocked." Barbara Fought, a Freedom of Information
law officer at Syracuse University, spoke during one of four panels
convened to discuss the impact of the Ashcroft memo. She concluded,
"We're beginning to hear about a few problems, which I think
signal a different tone with the Bush administration and the Attorney
Several panelists felt that the Ashcroft
FOIA memorandum was symptomatic of the Bush administration general
bent toward greater secrecy. "The larger problem with the
Bush administration is its attitude toward secrecy," said
panelist William Ferroggiaro, director of the Freedom of Information
Project of the National Security Archive. Giuffo writes that Ferroggiaro
"pointed to a number of recent actions by President Bush-his
sealing of Ronald Reagan's presidential records and the White
House's battle with the General Accounting Office, for example-as
proof of a restrictive view of access to government information.
The Freedom of Information Act exemption
in the Homeland Security Act adds a layer of secrecy that will
be difficult for right-to-know activists, public interest groups,
and journalists to penetrate. There is no question that corporations
could easily misuse the exemption "to safeguard themselves
from lawsuits," says OMB Watch. "When in doubt stamp
critical infrastructure information on the materials and 'voluntarily'
send it to the new
Department. That way the company will
not be held liable for danger caused to the public. "
Bill Berkowitz is a freelance writer covering