Sen. Patrick Leahy (D-VT) called the portion of the Homeland Security Act that today passed the Senate the “most severe weakening of the Freedom of Information Act in its 36-year history.”
Journalists should take note of that assessment from Leahy, the Congress’s leading supporter of the Freedom of Information Act, according to Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press.
“Any credible story that covers the impact of the Homeland Security bill should tell the public that they will not have access to vital information about the public’s health and safety,” Dalglish said.
The Homeland Security bill originating in the House of Representatives provides that any officer or employee of the U.S. government who “publishes, divulges, discloses or makes known in any manner” information concerning the critical infrastructure will face fines up to $5,000 and/or imprisonment up to a year.
Leahy said, “Behind closed doors they jettisoned a bipartisan compromise on a responsible FOIA exemption and replaced it with a big-business wish list gussied up in security garb.”
The measure displaces a compromise agreement in the Senate that would have given protection outside the normal use of exemptions to the Freedom of Information.
The compromise agreement hammered out in the late summer gave new statutory protection to information provided by businesses but, unlike the bill passed today, did not levy criminal penalties for leaks. Today’s bill also immunizes companies who share information from liability for wrongdoing revealed in the information and from antitrust prosecutions.
Congressional proposals to criminalize leaks of information classified to protect national security have been rejected over the past two years for fear that the threat of prosecution would chill government employees from discussing important public issues. Critical infrastructure information is not classified or classifiable.
“This would hurt and not help our national security, and along the way it would frustrate enforcement of the laws that protect the public’s health and safety. For example, if a company submits information that its factory is leaching arsenic in ground water, that information no longer could be used in a civil or criminal proceeding brought by local authorities or by the neighbors who were harmed by drinking the water,” Leahy said.
At the behest of businesses who might share critical infrastructure information with the government, Congress has attempted for the past five years to enact legislation protecting against public disclosures. The Homeland Security Act gives businesses everything they ever sought as a condition for sharing information with the government that might aid in protection of the infrastructure.
Information that could cause harm can already be protected under existing exemptions to the FOI Act. One exemption to the FOI Act protects business information where disclosure might cause competitive harm or discourage companies from voluntarily providing information to the government. Another exemption protects information when it could be used to circumvent laws. Additionally under an executive order issued by President Ronald Reagan, all agencies notify businesses when FOI requests concerning their records are received and give them opportunity to object to disclosure.
The call for the legislation was not provoked by actual misuse of business information but by business fears that the information might be released.