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 public safety.

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," he explained.

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 do so."

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 General. "

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 conservative movements.

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