[Congressional Record Volume 161, Number 121 (Wednesday, July 29, 2015)]
[Senate]
[Pages S6124-S6125]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FOIA PROVISIONS
Mr. LEAHY. Mr. President, I ask unanimous consent to engage in a
colloquy with Senator Thune, chairman of the commerce committee,
regarding the DRIVE Act and the Freedom of Information Act, FOIA.
I want to thank Chairman Thune for working with me to remove four
provisions in the DRIVE Act aimed at carving out information from
disclosure under FOIA, three of which were in titles of the bill
falling under the commerce committee's jurisdiction. The removal of
these four provisions is reflected in the second-degree amendment filed
by Senator Inhofe, amendment No. 2533, to the McConnell substitute
amendment. FOIA is our Nation's premier open government law and the
foundation on which all our sunshine and transparency policies rest. It
remains an indispensable tool for Americans to obtain information
affecting public policy, consumer safety, the environment, and public
health. The Freedom of Information Act falls under the exclusive
jurisdiction of the Senate Judiciary Committee, and changes affecting
this law should not be enacted without full and careful consideration
by the Judiciary Committee.
Mr. THUNE. I thank Senator Leahy for his interest in these matters,
and I am pleased we were able to work out an agreement to strike these
provisions and move forward with consideration of the DRIVE Act. I look
forward to working with you and Senator Grassley, the chairman of the
Judiciary Committee, on any future proposals to amend the Freedom of
Information Act.
Mr. LEAHY. I also want to draw particular attention to Section 32003,
related to the Federal Motor Carrier Safety Administration's, FMCSA's,
compliance, safety, and accountability system, CSA. The CSA system is
designed to evaluate the safety and compliance performance of motor
carriers by using data from inspections, crashes, compliance reviews,
and the Federal motor carrier census to come up with a safety
measurement system, SMS, score for each motor carrier in seven behavior
analysis and safety improvement categories, BASICs. It is my
understanding that these scores are currently available to the public
via FMCSA's Web site. It is also my understanding that, as originally
drafted, this bill would have prohibited FMCSA from making these scores
available to the general public via its Web site or via a FOIA request
while FMCSA evaluates and reforms the methodology underlying these
scores.
I have serious concerns about removing this information from public
view, even for a short period of time. The safety score is one of the
tools we give consumers and other stakeholders to help fully evaluate
motor carriers. While I prefer that these scores remain easily
accessible on FMSCA's Web site for the general public while the
methodology is reviewed, it is critical that the scores remain
available under FOIA. Even if the scores are removed from the Web site
while the methodology is reviewed, under the provision, they will
remain available to law enforcement and regulators for use in
overseeing the industry. For this reason alone, as well as many others,
we should not withhold that information from public scrutiny. Moreover,
the Judiciary Committee did not review this new proposed exemption and
has not had time to fully consider the potential effects of this
exclusion.
I thank Senator Thune for working with me to remove this FOIA
exemption. Originally the bill language stated that none of the score
information ``may be made available to the general public (including
through requests under Section 552 of title 5, United States Code [the
FOIA statute]).'' The Inhofe second degree amendment strikes the phrase
``including through requests under Section 552 of title 5, United
States Code'' in its entirety. Under the OPEN FOIA Act of 2009, no new
FOIA exemption under 5 U.S.C 552(b)(3), is effective unless it
specifically cites to 5 U.S.C 552(b)(3). Removing the citation to the
FOIA statute makes clear that, while the scores may no longer be
routinely published and easily accessible to the general public via
FMSCA's Web site until they have been reviewed and reformed, the scores
are still subject to disclosure pursuant to a FOIA request, unless an
existing exemption is found to apply.
Mr. THUNE. For the reasons you stated, I agree that if enacted into
law, nothing in Section 32003 exempts or is intended to exempt
information under the Freedom of Information Act. I would, however,
just offer two comments to explain to my colleague the rationale for
and limits of the modified provision. First, the commerce committee has
received information from several objective sources, including the
Government Accountability Office, the Department of Transportation's
Office of Inspector General, and the law enforcement community,
identifying concerns with the accuracy of the scoring analysis
performed by FMCSA as part of the CSA program. As noted by GAO, the
manner in which scores are calculated under the program ``creates the
likelihood that many SMS scores do not represent an accurate or precise
safety assessment for a carrier.'' Accordingly, the bill proposes to
withdraw this potentially misleading analysis from public review
temporarily, until the program is reviewed and corrected. Nevertheless,
as underscored by subsection 32003(c), the underlying ``[i]nspection
and violation information'' submitted to FMCSA under the program
``shall remain available for public viewing.''
The PRESIDING OFFICER. The majority leader.
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