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Compromise FOI amendment goes forward

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  1. Freedom of Information

    NMU         WASHINGTON, D.C.         Freedom of Information         Jul 26, 2002    

Compromise FOI amendment goes forward

  • Senators agreed to compromise language in a recent markup of homeland security legislation that would give some protection to critical infrastructure information submitted to the government by industry.

Compromise language that would amend the federal Freedom of Information Act and permit the Bush administration’s proposed Department of Homeland Security to withhold some information submitted to it by industry was hammered out in a Senate committee July 23.

The language significantly changes a bill proposed by the Bush administration that would have given a blanket exemption to information submitted by industry to the department.

Homeland security legislation proposed by the Bush administration in June and July addressed information voluntarily provided by anyone outside of the government that relates to the critical infrastructure by making it “not subject” to the FOI Act. Federal agencies regularly deny the existence of other information that by law is “not subject” to the FOI Act and are advised by the Department of Justice not just to deny it but to claim that it does not exist, according to the Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act.

The compromise was engineered by longtime FOI advocate Sen. Patrick Leahy (D-Vt.), Sen. Carl Levin (D-Mich.) and Sen. Robert Bennett (R-Utah) in markup in the Government Affairs Committee. Levin and Bennett offered the amendment on July 24 to the Homeland Security legislation proposed by the Bush administration.

The resulting amendment would only protect records submitted by the private sector to the Department of Homeland Security pertaining to vulnerabilities of the critical infrastructure. The administration proposals covered any information about technologies and structures such as dams, roads, bridges or computer networks submitted to any federal agency.

It also limits the coverage to information that is submitted “voluntarily” and not in the pursuit of a government benefit or grant.

The measure does not criminalize disclosure of critical infrastructure information as does a similar House bill.

News media, environmental and watchdog groups sharply criticized efforts to remove industry submitted information from coverage by the FOI Act. They argued in letters to legislators that when disclosure of information could cause harm, existing exemptions to the FOI Act already enable government agencies to protect against disclosure, and that court decisions have given broad protection to information submitted by industry.

Bennett and Sen. Jon Kyl (R-Ariz.) had introduced a measure to protect critical infrastructure information from disclosure in an effort to elicit voluntary sharing of information between government and industry.

That bill and earlier bills in the House and Senate sought ways to promote information sharing between the government and industry as a means of protecting vulnerabilities in any essential infrastructure. Legislators introducing the bills hoped to induce industry cooperation by promising secrecy.

The events of September 11 intensified efforts to gain information exchanges. Some of the other measures to induce information exchanges give industries immunity from liability that might be revealed in the records and make them immune from any antitrust concerns.

Similar but temporary information exchanges between government and industry were authorized in 1999 after scientists voiced concerns that computers might misinterpret calendar changes from 1999 to 2000 and cause breakdowns in major industries and services. The government solicited information from industries in an effort to avert those problems.


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