BEFORE THE DEPARTMENT OF HOMELAND SECURITY In the matter of Freedom of Information Act    and Privacy Act Procedures; Interim Final Rule   February 25, 2003    COMMENTS OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS            The Reporters Committee for Freedom of the Press submits these views to the Department of Homeland Security in response to its January 27, 2003, invitation for comments at 68 Federal Register 4055 regarding Interm Final Freedom of Information Act Rules.            The Reporters Committee is a voluntary, unincorporated association established in 1970 by news editors and reporters to defend the First Amendment and freedom of information rights of the print and broadcast media.            We are concerned that in the movement of some agencies to the new department, some benefits of expedited review procedures enjoyed by FOI Act requesters seeking information from the Department of Justice will no longer be available to requesters who seek the same information from the transferred agencies.            We urge the Department of Homeland Security to incorporate provisions of the Department of Justice regulation allowing expedited processing of requests and appeals when it is determined that they involve "a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence." 28 C.F.R. 16.5 (d)(1)(iv).            The 1996 Electronic Freedom of Information Act instructed federal agencies to provide expedited review of FOI Act requests when requesters demonstrate a "compelling need" to have responses to their requests. The Act defined two circumstances comprising compelling need: When the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or, where there is an urgency to inform the public about an actual or alleged federal government activity, if the request is made by a person primarily engaged in disseminating news.            The Act provides that, at their discretion, agencies may grant expedited review under other circumstances as well. The Justice Department in its implementing regulations describes two additional sets of circumstances in which it will grant expedited review: Circumstances of widespread and exceptional media interest as described above and, at 28 C.F.R. 16.5(d)1)(iii), circumstances which involve "the loss of substantial due process rights." The addition of circumstances for granting expedited review is not uniqe to the Justice Department. The Department of State chose, in its FOI regulations, to provide expedited processing if "substantial humanitarian concerns would be harmed by the [agency's] failure to process [the requested records] immediately."            On at least one occasion the Immigration and Naturalization Service granted expedited review to requesters seeking information on persons arrested or detained as suspects after the September 11 attacks. (Letter to Kate Martin, Center for National Security Studies, Nov. 23, 2001).             In response to an identical request, the Department of Justice, the then-parent agency of INS granted expedited review of departmental and Attorney General records because of "widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence."            We are hopeful that the movement of INS and the several other former components of the Department of Justice would not make them less forthcoming with expedited review decisions.            We note, as journalists, that the FOI Act's required expedited review standard which affects our work (where there is an urgency to inform the public of an actual or alleged federal government activity) may not cover the same kind of record that is covered by the Justice Department's additional standard of "widespread" media attention involving "possible questions ... which affect public confidence." Because of the distinction between these two, it is important for the new Department of Homeland Security to incorporate the Justice Department standard as well as the standard required by law.            The standard can be expected not only to allow journalists to effectively cover breaking news, it will undoubtedly also allow a government agency to quickly release records that clear up misunderstandings that may have proliferated if the public did not have access to a full array of facts.            We are also concerned about the business notification procedures described in these regulations in sec. 5.8. The regulations grant submitters of business information "reasonable time" to object to the disclosure of information. However, the FOI Act makes no such exception to the time limits imposed on agencies for responding to FOI requests. In 1987 when President Ronald Reagan's staff drafted the Executive Order 12,600 establishing notification procedures they specifically added the phrase "to the extent provided by law" to acknowledge that an Executive Order cannot set aside a mandate of the law.            To comply with the FOI Act, the agency must complete its notification, receipt of objections, review, decision and subsequent grant or denial within the 20 working days set out in the statute. There is no provision for altering that time limit for "reasonableness."            We recognize that agencies may sometimes fail to meet the deadlines set by law. However, we do not believe that it is at all appropriate for the agency to set aside the requirements of the Act in its regulations.            We are grateful for the opportunity to comment on these regulations. Respectfully submitted,   Rebecca Daugherty FOI Service Center Director Reporters Committee for Freedom of the Press