Statement Of Senator Patrick Leahy
On Introduction Of The Restoration Of Freedom Of Information Act
 (“Restore FOIA”)
March 12, 2003

Mr. LEAHY.  Last year when I voted to support passage of the Homeland Security Act (HSA), I voiced concerns about several flaws in the legislation.  I called for the Administration and my colleagues on both sides of the aisle to monitor implementation of the new law and to craft corrective legislation in the 108th Congress.  One of my chief concerns with the HSA was a subtitle of the act that granted an extraordinarily broad exemption to the Freedom of Information Act (FOIA) in exchange for the cooperation of private companies in sharing information with the government regarding vulnerabilities in the nation’s critical infrastructure. 

Unfortunately, the law that was enacted undermines Federal and State sunshine laws permitting the American people to know what their government is doing.  Rather than increasing security by encouraging private sector disclosure to the government, it guts FOIA at the expense of our national security and public health and safety. 

On March 16, we mark Freedom of Information Day, which falls on the anniversary of James Madison’s birthday.  Madison said, “A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.”  As a long-time supporter of open government, I believe we must heed Madison’s warning and revisit the potentially damaging limitations placed on access to information by the HSA. 

I rise today to introduce legislation with my distinguished colleagues Senator Levin, Senator Jeffords, Senator Lieberman, and Senator Byrd to restore the integrity of FOIA.  I want to thank my colleagues for working with me on this important issue of public oversight.  This bill protects Americans’ “right to know” while simultaneously providing security to those in the private sector who voluntarily submit critical infrastructure records to the newly created Department of Homeland Security (DHS). 

Encouraging cooperation between the private sector and the government to keep our critical infrastructure systems safe from terrorist attacks is a goal we all support.  But the appropriate way to meet this goal is a source of great debate – a debate that has been all but ignored since the enactment of the HSA last year.

The FOIA Exemption in the Homeland Security Act

The HSA created a new FOIA exemption for “critical infrastructure information.”  That broadly defined term applies to information regarding a variety of facilities—such as privately operated power plants, bridges, dams, ports, or chemical plants—that might be targeted for a terrorist attack.  In HSA negotiations last fall, House Republicans and the Administration promoted language that they described as necessary to encourage owners of such facilities to identify vulnerabilities in their operations and share that information with the Department of Homeland Security (DHS).  The stated goal was to ensure that steps could be taken to ensure the facilities’ protection and proper functioning. 

In fact, such descriptions of the legislation were disingenuous. These provisions, which were eventually enacted in the HSA, shield from FOIA almost any voluntarily submitted document stamped by the facility owner as “critical infrastructure.” 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 American citizens simply by submitting it to DHS.  The enacted provisions were called “deeply flawed” by Mark Tapscott of the Heritage Foundation in a November 20, 2002 Washington Post op-ed.  “Too Many Secrets,” Washington Post, November 20, 2002, at A25.  He argued that the “loophole” created by the law “could be manipulated by clever corporate and government operators to hide endless varieties of potentially embarrassing and/or criminal information from public view.” 

In addition, under the HSA, disclosure by private facilities to DHS neither obligates the private company to address the vulnerability, nor requires DHS to fix the problem.  For example, in the case of a chemical spill, the law bars the government from disclosing information without the written consent of the company that caused the pollution.  As the Washington Post editorialized on February 10, 2003, “A company might preempt environmental regulators by ‘voluntarily’ divulging incriminating material, thereby making it unavailable to anyone else.”  “Fix This Loophole,” Washington Post, February 10, 2003, at A20. 

The new law also (1) shields the companies from lawsuits to compel disclosure, (2) criminalizes otherwise legitimate whistleblower activity by DHS employees, and (3) preempts any state or local disclosure laws. 

Most businesses are good citizens and take seriously their obligations to the government and the public, but this “disclose-and-immunize” provision is subject to abuse by those businesses that want to exploit legal technicalities to avoid regulatory guidelines.  The HSA lays out the perfect blueprint to avoid legal liability: funnel damaging information into this voluntary disclosure system and pre-empt the government or others harmed by the company’s actions from being able to use it against the company.  This is not the kind of two-way public-private cooperation that our country needs. 

The HSA FOIA exemption goes so far in exempting such a large amount of material from FOIA’s disclosure requirements that it undermines government openness without making any real gains in safety for families in Vermont and across America.  We do not keep America safer by chilling federal officials from warning the public about threats to their health and safety.  We do not ensure our nation’s security by refusing to tell the American people whether or not their federal agencies are doing their jobs or their government is spending their hard earned tax dollars wisely.  We do not encourage real two-way cooperation by giving companies protection from civil liability when they break the law.  We do not respect the spirit of our democracy when we cloak in secrecy the workings of our government from the public we are elected to serve.

The Restoration of Freedom of Information Act (“Restore FOIA”)

The Restore FOIA bill I introduce today with Senators Levin, Jeffords, Lieberman, and Byrd is identical to language I negotiated with Senators Levin and Bennett last summer when the HSA was debated by the Governmental Affairs Committee.  Senator Bennett stated in the Committee’s July 25, 2002 mark up that the Administration had endorsed the compromise.  He also said that industry groups had reported to him that the compromise language would make it possible for them to share information with the government without fear of the information being released to competitors or to other agencies that might accidentally reveal it.  The Governmental Affairs Committee reported out the compromise language that day.  Unfortunately, much more restrictive House language was eventually signed into law. 

The February 10 Washington Post editorial called the Leahy-Levin-Bennett language “a compromise that would accomplish the reasonable purpose” of “encouraging companies to share information with the government about infrastructure that might be vulnerable to terrorist attack … without such broad harmful effects.”  Id.  The Post editorial was titled, “Fix This Loophole,” which is exactly what my colleagues and I hope accomplish with the introduction of this bill.  Id.

The Restore FOIA bill would correct the problems in the HSA in several ways.  First, it limits the FOIA exemption to relevant “records” submitted by the private sector, such that only those that actually pertain to critical infrastructure safety are protected.  “Records” is the standard category referred to in FOIA.  This corrects the effective free pass given to industry by the HSA for any information it labels “critical infrastructure.” 

Second, unlike the HSA, the Restore FOIA bill allows for government oversight, including the ability to use and share the records within and between agencies.  It does not limit the use of such information by the government, except to prohibit public disclosure where such information is appropriately exempted under FOIA. 

Third, it protects the actions of legitimate whistleblowers, rather than criminalizing their acts.

Fourth, it does not provide civil immunity to companies that voluntarily submit information.  This corrects a flaw in the current law, which would prohibit such information from being used directly in civil suits by government or private parties. 

Fifth, unlike the HSA, the Restore FOIA bill allows local authorities to apply their own sunshine laws.  The Restore FOIA bill does not preempt any state or local disclosure laws for information obtained outside the Department of Homeland Security.  Likewise, it does not restrict the use of such information by state agencies. 

Finally, the Restore FOIA bill does not restrict congressional use or disclosure of voluntarily submitted critical infrastructure information.  The HSA language was unclear on this point, and even the Congressional Research Service could not say for certain that members of Congress or their staff would not be criminally liable.  Homeland Security Act of 2002:  Critical Infrastructure Information Act, February 29, 2003, CRS Report for Congress, Order Code RL31762, at 14-15.

These changes to the HSA would accomplish the stated goals of the critical infrastructure provisions in the HSA without tying the hands of the government in its efforts to protect Americans and without cutting the public out of the loop.

The argument over the scope of the FOIA and unilateral executive power to shield matters from public scrutiny goes to the heart of our fundamental right to be an educated electorate aware of what our government is doing.  The Rutland Herald got it right in a November 26, 2002 editorial that explained:  “The battle was not over the right of the government to hold sensitive, classified information secret.  The government has that right.  Rather, the battle was over whether the government would be required to release anything it sought to withhold.”

We need to fix this troubling restriction on public accountability.  Exempting the new Department from laws that ensure responsibility to the Congress and to the American people makes for a tenuous start—not the sure footing we all want for the success and endurance of this new Department.  I urge my colleagues to support the Restoration of Freedom of Information Act of 2003.

I ask unanimous consent to place the editorials I mentioned and several letters of support of the Restore FOIA bill in the record.

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