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Senators Offer Fix For FOIA
Exemption
In The Homeland Security Act
WASHINGTON (Wed., March 12) – Senators
Patrick Leahy (D-Vt.), Carl Levin (D-Mich.), James Jeffords (I-Vt.),
Joseph Lieberman (D-Conn.), and Robert Byrd (D-W.V.) Wednesday
introduced the Restore Freedom of Information Act (Restore FOIA), four
days before Freedom of Information Day. The Restore FOIA bill would
replace the broad FOIA exemption for “critical infrastructure
information” included in the charter for the new Department of
Homeland Security, enacted last November. The Restore FOIA bill would
protect Americans’ “right to know” while simultaneously contributing
to the security of the nation’s critical infrastructure.
The FOIA exemption enacted in the
Homeland Security Act applies to information about facilities — such
as privately operated power plants, bridges, dams, ports or chemical
plants — that might be targets of a terrorist attack. The exemption
shields from FOIA almost any voluntarily submitted document stamped by
the facility owner as “critical infrastructure” and submitted to the
Department of Homeland Security (DHS). This is true no matter how
tangential the content of that document may be to the actual security
of a facility. The law effectively allows companies to hide
information about public health and safety from the public simply by
voluntarily submitting it to DHS. Firms’ disclosures to DHS neither
obligate the firms to address the vulnerability nor require DHS to fix
the problems. The law also shields such information from use in civil
litigation, criminalizes otherwise legitimate whistleblower activity
by DHS employees, and preempts state or local disclosure laws. Leahy,
long a champion of FOIA and of the public’s right to know, has said
the exemption adds up to the single most destructive blow to FOIA in
its 36-year history.
The Leahy-Levin-Jeffords-Lieberman-Byrd bill embodies the compromise
that Leahy, Levin and others reached with the White House during the
Senate’s earlier work on the homeland security bill. Last November,
this bipartisan compromise was stripped out of the underlying bill and
House language was enacted. The new Restore FOIA bill would:
·
Limit the FOIA exemption to relevant
“records” submitted by private entities, so that only those records
that actually pertain to critical infrastructure safety are
protected. “Records” is the standard category referred to in FOIA.
This corrects the free pass given to industry by the Homeland Security
Act for any information labeled “critical infrastructure.”
·
Not limit the use of such information by
the government, except to prohibit disclosure where such information
is appropriately exempted under FOIA.
·
Protect the actions of legitimate
whistleblowers, rather than criminalizing their acts.
·
Not forbid use of such information in
civil court cases to hold companies accountable for wrongdoing or to
protect the public.
·
Respect, rather than preempt, state and
local FOIA laws.
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