Infrastructure bill seeks to withhold new categories of records from the public

Buried deep within the recently passed infrastructure bill’s 2,740 pages are several provisions that have received little public attention but could dramatically affect the public’s access to information created under its programs. From cybersecurity to transportation research to Native American historical resources, H.R. 3684 is unusually full of efforts to create new exemptions to the federal Freedom of Information Act, and Congress hasn’t said why.

Although FOIA has just nine exemptions, the third (commonly referred to as “b3”) exempts records that are required to be withheld under other statutes. Courts have offered guidance on dozens of statutes over the years, but no comprehensive list of b3 statutes exists. In 2010, ProPublica reported that agencies cited more than 240 laws over a two-year period to deny information in response to FOIA requests. And a 2021 Government Accountability Office report found that agencies cited 256 statutes to deny FOIA requests between fiscal years 2010 and 2019. But until a statute is cited by an agency to withhold records, and is tested in the courts, its status as a viable b3 exemption remains uncertain. Because FOIA litigation is relatively rare, a statute can effectively operate as a categorical exemption without judicial review even if it does not meet b3’s requirements.

The infrastructure bill, as recently reported by the Wall Street Journal, contains an abnormally high number of references to FOIA, many of which appear to be aimed at shielding records from the public. The actual import of those provisions is far from clear, however, in part because of a 2009 amendment to FOIA. After years of ambiguity about whether particular statutes qualified under Exemption 3, Congress amended the exemption through the OPEN FOIA Act to require all future “b3” statutes to specifically cite to that FOIA exemption. That provision has proved highly effective over the years in helping transparency advocates locate potential new exemptions.

Some provisions within the infrastructure bill do refer to Exemption 3, including five sections that concern information provided to the federal government regarding energy security. Those provisions could come into play if the Secretary of the Department of Energy “reasonably foresees” that disclosure of such information “could be detrimental to the physical security or cybersecurity of any electric utility or the bulk-power system.”

Other provisions are far more nebulous. For example, a $42 billion broadband grant program purports to exempt “any action taken or decision made” by the Assistant Secretary of Commerce from “chapter 5 or 7 of title 5” of the U.S. Code. While it is possible that this provision was designed to avoid the Administrative Procedure Act, the referenced “chapter 5” also includes FOIA, the Privacy Act and the Sunshine in Government Act. The broadband provision, however, contains no cross-reference to FOIA’s Exemption 3, as required by the OPEN FOIA Act, casting confusion as to its import. As the Wall Street Journal reported, the “implications for transparency, privacy and open government weren’t mentioned during the floor debate, and it isn’t clear whether the Senate understood the potential consequences.”

Other provisions in the infrastructure bill reference FOIA in an attempt to exempt records, but not in the way the OPEN FOIA Act requires. Section 25012 — which creates an entity within the Department of Transportation to advance transportation infrastructure — states that certain collected information “shall be considered” to be “not subject to disclosure under” Exemption 4 of FOIA. But Exemption 4, unlike b3, imposes a fact-specific test that examines how information is treated in practice. So it’s unclear how Congress can declare that whole categories of information automatically qualify under its substantive requirements.

Even less specific is section 70801 of the bill, which amends the Fixing America’s Surface Transportation Act to state that in seeking authorization for certain construction projects, any “information relating to Native American natural, cultural, and historical resources” submitted by a project sponsor shall be “kept confidential” and “exempt from the disclosure requirements” of FOIA. No reference to Exemption 3, or indeed any FOIA exemption, is included in the provision.

Regardless of whether all provisions in the infrastructure bill can qualify as “real” b3 exemptions, agencies may attempt to rely on them in the future to deny FOIA requests for government records from journalists and the public. That could be particularly damaging to the public’s right to know. Unlike other FOIA exemptions, b3’s are mandatory, not discretionary, and, unless a sunset is included, the exemption will apply forever.

The public interest in records cannot overcome a true b3 exemption, nor does FOIA’s “foreseeable harm” provision apply to such statutes. In other words, once a b3 is created, the public’s right to know is extinguished unless and until Congress changes the law. The finality of such provisions deserves a robust public debate that, unfortunately, did not occur here.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.