FROM: David Carle, w/Sen. Patrick Leahy, 202-224-3693 DATE: Thurs., July 25, 2002 SUBJECT: Leahy leads successful effort to scale back proposed FOIA exemption in Senate's bill to charter the Department of Homeland SecuritySens. Patrick Leahy, Robert Bennett and Carl Levin reached agreement late Tuesday on an amendment to scale back the agency-wide Freedom Of Information Act (FOIA) exemption sought by the Administration for the new Department of Homeland Security. The amendment then was offered Wednesday by Sens. Levin and Bennett during the first day of the Governmental Affairs Committee markup on the bill, and the committee unanimously approved the amendment. As part of the agreement, Senator Bennett, who initially had supported a weaker scaling back of the Administration's proposed exemption, now pledges to "vigorously" defend this language, including in conference. Leahy, long FOIA's leading champion in the Senate, led the negotiations. Below are a description of the Leahy-Bennett-Levin agreement, the amendment language, and the "Alert Update" about this breakthrough sent by the Society of Professional Journalists to its members.
1. The compromise would limit the exemption to "records" submitted by the private sector, not "information" from the private sector. Thus, if companies provide mere information to DHS that is documented in an agency-created record, that record will be subject to the FOIA and not exempt simply because private sector information is referenced or contained in the record.
2. The compromise would limit the exemption to records pertaining to "the vulnerability of and threats to critical infrastructure (such as attacks, response and recovery efforts)", rather than the much broader proposal of any "critical infrastructure information."
3. The compromise has NO civil immunity provision and NO antitrust protection which would undermine corporate accountability, as in the House proposal.
4. The compromise is limited to records submitted to the new Dept. of Homeland Security, not to any federal agency, as in the Administration's July 10th proposal. Thus, the compromise exemption does not affect information voluntarily submitted to other agencies that would continue to be processed under the current FOIA.
5. The compromise does not preempt state or local sunshine laws.
6. The compromise requires certification of confidentiality by the submitter unlike the Administration's original June 18th proposal.
7. The compromise defines "furnished voluntarily" (which are the records covered by the exemption) more narrowly than the Administration or House proposals to ensure that records submitted by companies to obtain grants, permits, licenses or other government benefits are not exempt, but are still subject to the FOIA process. The Administration and House proposals define voluntary submissions more broadly to exempt many more documents.
8. The compromise makes clear that portions of records that are not covered by the exemption should be released pursuant to FOIA requests, unlike the Administration and House proposals which would apparently allow the withholding of entire records if any part is exempt.
9. The compromise makes clear that records submitted to other agencies are not covered, even if the same document is also submitted to the DHS.
10. The compromise does not criminalize disclosure of critical infrastructure information, as does the House bill.
SUBSTITUTE FOR SECTION 204 IN ADMINISTRATION DRAFT HSD BILL
Sec. ___. Protection of Voluntarily Furnished Confidential Information
(A) Exemption. - Notwithstanding any other provision of law, records pertaining to the vulnerability of and threats to critical infrastructure (such as attacks, response and recovery efforts) that are furnished voluntarily to the Department of Homeland Security shall not be made available pursuant to section 552 of title 5, United States Code, provided that -
(1) the provider would not customarily make the records available to the public; and
(2) the records are designated and certified by the provider as confidential and not customarily made available to the public in a manner specified by the Department of Homeland Security.
(B) Records Shared with Other Agencies. -
(1) An agency in receipt of a record that was voluntarily provided to the Department of Homeland Security and subsequently shared with the agency, shall, upon receipt of a request pursuant to section 552 of title 5, United States Code, for such record, not make the record available and refer the request to the Department of Homeland Security for processing and response in accordance with this subsection. Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this section.
(2) Notwithstanding paragraph (1), nothing in this section shall prohibit any agency from making available, pursuant to section 552 of title 5, United States Code, records that the agency received independently of the Department of Homeland Security, regardless of whether the Department of Homeland Security has similar or identical records.
(C) Withdrawal of Confidential Designation. - A provider of voluntarily furnished records under subsection (A) may, at any time withdraw, in a manner specified by the Department of Homeland Security the confidential designation.
(D) Procedures. - The Department of Homeland Security shall establish procedures for -
(1) the acknowledgment of receipt of voluntarily provided records;
(2) the designation, marking and certification of voluntarily provided records as confidential and not customarily made available to the public;
(3) the care and storage of voluntarily provided records;
(4) the protection and maintenance of the confidentiality of voluntarily provided records; and
(5) the withdrawal of confidential designation.
(E) Definitions. -
(1) Critical Infrastructure. The term "critical infrastructure" has the same meaning as given in section 1016(e) of the USA PATRIOT Act of 2001 (42 U.S.C. 5195(e)).
(2) FURNISHED voluntarily. The term "furnished voluntarily" means submissions made to the Department of Homeland Security-
(i) in the absence of authority of the Department requiring them to be furnished, and
(ii) the records are not submitted or used to satisfy any legal requirement or obligation or to obtain any grant, permit, benefit, such as agency forbearance, loans, reductions or modifications of agency penalties or rulings, or other approval from the government. For purposes of this section, warnings, alerts or other risk analyses by the Department of Homeland Security are not a benefit.
(F) Limitation.- Nothing in this section shall be construed as preempting or otherwise modifying state or local law concerning the disclosure of any information that the state or local government received independently of the Department of Homeland Security.
(G) REPORT. The General Accounting Office shall submit to the Committees on the Judiciary, the Committee on Governmental Affairs and the Committee on Government Reform and Oversight of the Senate and House of Representatives a report, in classified or unclassified form, or both, by eighteen months after enactment of this Act that shall contain a detailed description of the implementation and use of this section, including-
(1) the number of persons within the private sector and state and local agencies providing records voluntarily to the Department of Homeland Security under this section;
(2) the number of requests for access to records granted or denied under this section; and
(3) recommendations for improving the collection and analysis of sensitive information held by the persons within the private sector bearing on threats and risks to critical infrastructures, as well as responses to those threats and risks.
Society of Professional Journalists FOI Alert UPDATE: July 24, 2002
Senators reach compromise on FOIA exemption
to Homeland Security bill, plan panel vote todayContact:
SPJ President Al Cross, political writer and columnist, The (Louisville) Courier-Journal
502-648-8433 or across@courier-journal.comSPJ President-elect Robert Leger, editorial page editor at the Springfield (Mo.) News-Leader
417-836-1113 (417-425-9140 cell) or rleger@springfi.gannett.comRobert D. Lystad of the Washington office of Baker & Hostetler LLP, counsel to the Society
202-861-1707 or rlystad@bakerlaw.comAfter weeks of negotiations, Sen. Patrick Leahy (D-Vt.) and Carl Levin (D-Mich.) reached agreement late Tuesday with Sen. Robert Bennett (R-Utah) on language for a Freedom of Information Act exemption in the proposed Homeland Security Act. The compromise significantly narrows the types of information provided by the private sector to the new Department of Homeland Security that could be withheld from disclosure. It will be considered during a mark-up in the Senate Governmental Affairs Committee today (Wednesday).
While the Society of Professional Journalists preferred no exemption (as explained in our July 9 letter to senators), our Washington counsel advised us that the Senate version of the Homeland Security Act would include some sort of exemption. "The agreed language is much less damaging than Sen. Bennett's original proposal, and is head and shoulders better than the House version and proposals advanced by the White House," said Robert Lystad of Baker & Hostetler, counsel to SPJ.
While a compromise has been reached, the battle is not over. "The bill is subject to change in the Senate and in conference with the House, which is about to pass a version that would blow a huge loophole in the FOIA," said SPJ President Al Cross, political writer and columnist at The (Louisville) Courier-Journal. As part of the compromise, Sen. Bennett has promised to vigorously defend this language on the floor and, if chosen as a conferee, in conference.
The original proposal would prevent public disclosure of critical infrastructure information that is voluntarily provided by private companies to the new Department of Homeland Security. While the Society strongly believes that no new FOIA exemption is necessary, because Exemption 4 of the FOIA already protects from disclosure certain confidential or trade secret information that private entities supply to the government, Cross said a compromise was needed to prevent passage of the original proposal.
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