FOIA Exemption in the Homeland Security Act


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.

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.”

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, there- by undermining
basic whistleblower protections.” The new bill “pre- empts
state law to insure that the information is not disclosed by state
openness laws.”

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.

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.”

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.

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

, 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.

Patrick Leahy (D-VT), the outgoing chairperson of the Senate Judiciary
Committee, warn- ed 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.

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.

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.”

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.”

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.”

columnist, radio talk show host, and political organizer Jim Hightower
pointed out in an


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.”

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.”

Retools FOIA


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,”

Access Reports.
The new policy superseded Attorney General Janet Reno’s 1993
memo, replacing her “foreseeable harm” test, which emphasized
disclosure, with Ash- croft’s “sound legal basis”
test that makes the withholding of records easier.

these changes seem like legalese blather—more subtle than substantive—they
actually represent a significant change in policy.

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

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.

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.”

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.”

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.”

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.”

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

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.”

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.”

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.”

Berkowitz is a freelance writer covering conservative movements.