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July 11, 2002
To: SEJ members and other
journalists
From: Jim Bruggers, SEJ president,
and SEJ First Amendment Task Force board
liaison
I want to call to everyone's attention
some concerns that the journalism
community has with the Homeland Security
Bill that is before Congress right now. I
signed this letter (below) at the urging
of SEJ's new First Amendment Task Force,
and at the invitation of the Society of
Professional Journalists, along with the leaders of several
other groups.
July 10, 2002
Re: FOIA Exemption in Homeland Security
Act of 2002
Dear Member of Congress:
As Congress considers legislation
establishing a Department of Homeland
Security, the signatories below have
serious concerns with certain provisions
that are being considered. Section 204 of
the Homeland Security Act of 2002, H.R.
5005, would exempt from the Freedom of
Information Act “information
provided voluntarily [to the federal
government] by non-Federal entities or
individuals that relates to
infrastructure vulnerabilities or other
vulnerabilities to terrorism.” This
overbroad and unnecessary provision would
severely compromise public health and
safety, not to mention the public’s
right to know. Congress should reject
this provision, as it is ripe for misuse
and abuse.
The bill does not define
“infrastructure
vulnerabilities” or “other
vulnerabilities to terrorism.”
Accordingly, it provides virtually no
limit to the types of information that
would be exempt from the Freedom of
Information Act. Given the bill’s
vague terms, it is certain that important
non-confidential information supplied to
the government would be exempt from
disclosure to the public. The sweeping
nature of this FOIA exemption invites
companies to give the government
information that could affect public
health and safety, and by doing so
automatically keep the public from
getting such information. The
public’s interest is hardly served
by such secrecy.
In addition to the definitional problems,
the proposal is unnecessary. Exemption 4
of the FOIA already protects from
disclosure certain confidential or trade
secret information that private entities
supply to the government. The reach of
Exemption 4 was debated at length during
a May 8, 2002 hearing before the Senate
Government Oversight Committee that was
examining S. 1456, the Critical
Infrastructure Information Security Act
of 2001. That bill contains a provision
very similar to the FOIA exemption in the
Homeland Security Act. While industry
representatives argued that a FOIA
exemption was needed before private
companies would voluntarily share
infrastructure information with the
government, a senior FBI official
acknowledged that the FOIA already
prohibits the release of sensitive
commercial or financial information
received from the private sector. Said
Ronald L. Dick, director of the
FBI’s National Infrastructure
Protection Center, “[W]e believe
that there are sufficient provisions in
the FOIA now to protect information that
is provided to us.” Furthermore,
Committee Chairman Joseph Lieberman
acknowledged that “[t]here are
concerns that the exemptions granted [in
S. 1456] might give the companies a
ground for withholding some of the
information that otherwise would be
public.” As Senator Daniel K. Akaka
added, “We must not provide
inadvertent safe harbors for those who
violate health and safety
statutes.”
Just as the FBI, the CIA, and the State
Department already have adequate means
under the FOIA to prevent the release of
confidential data received from the
private sector (not to mention
information that could endanger national
security), so too would a Homeland
Security Department have these tools at
its disposal. The Act’s FOIA
exemption would create a black hole that
would shield from the public crucial
information that is not otherwise
sensitive or confidential. Congress
should not undermine these interests in
its quest to protect the nation.
We also have grave concerns about another
provision in the bill. Section 730 would
give the Secretary of Homeland Security
the discretion to waive numerous civil
service privileges contained in Title 5
of the U.S. Code, including the
Whistleblower Protection Act. Like the
FOIA, the Whistleblower Protection Act is
a powerful ally of the public interest
and those citizens who are interested in
maintaining the accountability of our
government and its officials. Government
employees should remain free to report
abuse, misfeasance, official misconduct
and outright criminality, no matter what
department employs them. That seems all
the more important for the Department of
Homeland Security, for all our sakes.
For further information, please contact
Robert D.
Lystad of Baker & Hostetler LLP,
counsel to the Society of Professional
Journalists, at 202-861-1707.
Signed,
Al Cross, President,
Society of Professional Journalists
Diane McFarlin, President, American
Society of Newspaper Editors
John F. Sturm, President and CEO,
Newspaper Association of America
Barbara Cochran, President,
Radio-Television News Directors
Association
Jerry Reppert, Chairman, Government
Relations, National Newspaper
Association
Lucy Dalglish, Executive Director,
Reporters Committee for Freedom of the
Press
H.L. Hall, President, Journalism
Education Association
Tom Devine, Legal Director, Government
Accountability Project
Ted Gest, President, Criminal Justice
Journalists
James Bruggers, President, Society of
Environmental Journalists
Jenny Crouch, President, College Media
Advisers
cc: The Hon. George W. Bush
The Hon. John Ashcroft
The Hon. Tom Ridge
James
Bruggers covers environmental topics
for the Louisville
Courier-Journal.
Ph: 502-582-4645. FAX: 502-582-4200
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