Freedom for information!

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May 2003

Freedom for information!
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Freedom for information!
The following action item is courtesy of the Friends Committee on National Legislation.

RESTORE FREEDOM OF INFORMATION: The heightened threat levels and security concerns here in the U.S. stemming from the war in Iraq and the on-going "war on terror," are no excuse for undermining one of the foundations of our democracy: public access to information. Restore Access to Public Information Diminished by the Homeland Security Act

Contact your senator today to urge support for S 609, "Restore the Freedom of Information Act" (FOIA), introduced by Sen. Leahy (VT), joined by Sens. Levin (MI), Jeffords (VT), Lieberman (CT), and Byrd (WV). S 609 ("Restore FOIA") contains the provisions of a compromise bi-partisan Senate amendment that was stripped out of the Homeland Security Act by the House last November (2002). Supported by a broad range of environmental and public interest groups, S 609 preserves the federal government's ability to protect the public from damage to critical infrastructure but also reinstates public access to federal records. Restore FOIA retains exemptions to protect public safety and security, but removes the ability of businesses to hide information that does not fit the exemptions. In addition, Restore FOIA removes criminal penalties for whistleblower action, allows non-exempt information to be shared between federal agencies, restores protection of the public through agency action or private lawsuit, and restores the independent control of state and local FOIA laws.

ACTION: Write your senator today, urging support for S 609, "Restore the Freedom of Information Act." It is particularly important to contact Senate Judiciary Committee members, the committee to which S 609 has been referred: Sens. Hatch (UT), Grassley (IA), Specter (PA), Kyl (AZ), DeWine (OH), Sessions (AL), Graham (SC), Craig, ID), Chambliss (GA), Cornyn (TX), Leahy (VT), Kennedy (MA), Biden (DE), Kohn (WI), Feinstein (CA), Feingold (WI), Schumer (NY), Durbin (IL), and Edwards (NC).

It's easy to send email or faxes to your senator. Start with the sample letter posted in our Legislative Action Center, personalize the language, then email or fax your message directly from our site. You can also print it out and mail it.

BACKGROUND: "Knowledge will forever govern ignorance. And a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both."—James Madison (1822).

Enacted in 1966, the Freedom of Information Act (FOIA) protects citizen access to federal agencies' records and documents that do not fall within nine specific exemptions. For example, the exemptions protect from public view records and documents that contain national security information, information exempted by statue, and confidential business information. Citizens whose FOIA requests are denied or not granted in a timely fashion may sue the government agency to determine whether access to the information is appropriate. Access to state and local records are protected by state and local FOIA laws.

The attacks of September 11, 2001, created a new urgency to government efforts to protect information about critical U.S. infrastructure, 90 percent of which is in private ownership. The Homeland Security Act established a new FOIA exemption, removing from citizen view "critical infrastructure information" that is "voluntarily submitted" by private entities to the Department of Homeland Security. Under Homeland Security Act provisions, a company could "voluntarily" submit evidence of environmentally poisonous dumping to the Department of Homeland Security, thereby preventing access to the information by community activists, environmentalists, local and state agencies, and (in many cases) other federal government agencies, preventing whistleblower action, and preventing corrective public or private lawsuits. Once "critical infrastructure information" is submitted, it may not be accessed by the public or shared between government agencies without written permission of the submitter. Whistleblowers using the "information" are subject to criminal penalties. Neither government agencies nor private citizens can sue to correct the submitter's activities based on the submitted information. And, the new federal provision overrides state and local FOIA laws.

Those who approve of the Homeland Security Act provisions report that the private sector has been reluctant to submit information to the government that may damage its reputation, weaken its competitive position, lead to costly investigation, be used inappropriately, or expose businesses to liability under federal, state, or local laws, including anti-trust restrictions. And, of course, the government does not want to share information with the public that might compromise intelligence activities or investigations or that might assist acts of terrorism.

However, those critical of these Homeland Security Act provisions argue: (a) Under the Homeland Security Act, a private entity can determine what constitutes "critical infrastructure information," and the definition of a "voluntary" submission is only broadly outlined. (b) The act's provisions give unprecedented immunity from complying with a variety of laws (e.g., antitrust, tort, tax, civil rights, environmental, labor, consumer protection, and health and safety laws), because once information has been submitted as "critical infrastructure information," even if previously public, it is off-limits for use in government or private suit. (c) The exemptions and case law in place before the Homeland Security Act was passed offer sufficient protections to owner/operators. (d) Anti-whistle blower provisions stifle accountability. And, (e) state and local communities lose the control previously offered by state and local FOIA provisions.

The provisions of S 609, "Restore FOIA," protect the public safety and the confidentiality of business records by carving out appropriate exemptions for records pertaining to critical infrastructure while retaining traditional FOIA and case law definitions for "records" and for what constitutes a "voluntary" submission. S 609 also allows agency review and oversight of the submissions, and allows coordination of the use of the information within federal and state agencies (while maintaining the protected exemptions from public access). S 609 establishes procedures for receiving, designating, storing, and protecting the confidentiality of records voluntarily submitted and certified as critical infrastructure records. It reimplements whistleblower protections and removes the prohibition against civil court cases for liability using non-exempt information. State and local FOIA laws would not be preempted by the federal provisions under S 609. And, finally, S 609 provides for Congressional oversight through reports from the Comptroller General.

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