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2001
FOI update: Federal legislation
By Kevin Goldberg
The past year
has produced a mixed bag in terms of FOIA and privacy-related bills
introduced in Congress. Federal legislators continue to invoke national
security as a means of restricting access to public information.
Multiple bills sought to exempt from FOIA access documents that
are provided to the government by private companies. While Congress
was successful in passing legislation that would allow for criminal
punishment of those who leak classified information — in effect
creating an "Official Secrets Act" — President Clinton killed
the bill with a last-minute veto.
Congress reacted
to a groundswell of public sentiment in favor of protecting the
personal information of Internet users by introducing several pieces
of legislation to secure financial and medical information. None
were enacted into law.
However, Congress
again chose to protect itself first, ignoring bills that would have
put its own documents on the Internet. In the early part of the
107th Congress, the Senate appeared ready to introduce a resolution
intended to accomplish this goal.
What remains
to be seen is the course Congress will take in 2001. Will it continue
with attempts to restructure FOIA and protect personal privacy through
piecemeal legislation? Or will Congress engage in some review of
the present and future status of privacy and how it is affected
by FOIA by enacting legislation to create a commission to study
those issues?
Here's an overview
of congressional action on FOI issues during the past year.
Classified
information
Congress continued to keep a watchful eye over classified information
and information related to sensitive defense interests. One bill
introduced during the 106th Congress engendered a vociferous reaction
from the public and press, which led to a presidential veto after
congressional passage.
This piece of
legislation, one section of a larger piece of legislation funding
the intelligence activities of government, would have made small,
but important, changes in current law. It would have criminalized
the disclosure of classified information by government employees
and others; the current law criminalizes disclosure and use. While
the legislation contained no criminal sanctions against the press,
it would have cut off an avenue of access to by specifically prohibiting
its release (even though another statute — the current Section
798 — prohibits the release of much of the same information
already).
The bill also
would have covered a broader range of classified information than
current law, applying to all classified information. Furthermore,
it would not require that the disclosure be prejudicial to the national
security of the United States or for the benefit of any foreign
government, as required by the current Section 798. This also would
have increased the Act's reach in terms of punishable disclosures.
S. 2507 was
referred to the Senate Select Committee on Intelligence, which reported
the measure on May 4, 2000. The Senate passed it on Oct. 2, 2000.
The House version of the Fiscal Year 2000 Intelligence Authorization
Act did not contain a similar provision affecting the distribution
of classified information. On Oct. 10, the conference committee
resolved the differences in these bills to include Section 303 (renumbered
as Section 304) in the final version. This was approved by both
Houses on Oct. 12 and sent to the president in the form of the House
version of this Intelligence Authorization Act (H.R. 4392). President
Clinton vetoed the bill on Nov. 4, 2000.
Defense
Authorization Act
Another bill related to classified information was Section 1073
of the Fiscal Year 2001 Defense Authorization Act (HR 5408). This
provision was enacted into law as part of that bill on Oct. 30,
2000. It created a new Section 130c in the title of the U.S. Code
dealing with the Armed Forces, which allows national security officials
to withhold from public disclosure sensitive information of foreign
governments. Under this provision, information is considered sensitive
if the information was provided by, made available by, or produced
in cooperation with a foreign government; if the foreign government
is withholding the information from public disclosure; and if one
of the following conditions are met:
- The foreign
government requests, in writing, that the information be withheld.
- The information
was provided or made available to the United States on the condition
that it not be released to the public.
- The information
is an item of information or category of information that the
national security official concerned has specified as being information
the release of which would have an adverse effect on the ability
of the United States government to obtain the same or similar
information in the future.
Finally, the
Senate, in S. 2549, its version of the Defense Authorization Act,
sought to exempt the operational files of the Defense Intelligence
Agency from FOIA. Section 1045 of that bill would have affected
both classified and declassified files held by the agency. Although
the CIA had held such an exemption since 1984, no such exemption
existed for files of the DIA. This section was rejected in conference
and, therefore, did not become law.
Protection
of critical infrastructure
Two bills were introduced which sought to protect the critical infrastructure
of industries in the United States by restricting access provided
to the government by private corporations. Neither became law.
HR 4246 was
introduced on April 12, 2000, by Rep. Tom Davis, R-Va. It sought
to encourage the secure disclosure and protected exchange of information
about cyber security problems, solutions, test practices and test
results, and related matters in connection with critical infrastructure
protection. The bill attempted to achieve its goal through three
means:
- An antitrust
exemption, which would protect companies from being sued as a
result of engaging in conduct leading to an agreement for the
purpose of avoiding a cyber security related problem.
- The creation
of special working groups to engage outside organizations in discussions
to address security and exchange information about cyber security.
- An FOIA exemption
for information covered by the act.
The FOIA exemption
would have applied to information shared by private entities with
the government regarding the critical infrastructure. Critical infrastructure
information was defined as any information relating to facilities
or services so vital to the nation or its economy that their disruption,
incapacity, or destruction would have a debilitating impact on the
defense, security, long-term economic prosperity, or health or safety
of the United States.
Any entity sharing
critical infrastructure information with the government in the form
of a cyber security statement would have been allowed to request
that the information be exempted from FOIA. A cyber security statement
was defined as any communication by a party to another concerning
an assessment, projection, or estimate concerning the cyber security
of that entity, its computer systems, software programs or similar
facilities, or the implementation or verification of its cyber security,
including any review or comment on the cyber security of the facilities.
The term cyber security related to the vulnerability of any computing
system, software program, or critical infrastructure to interference
or incapacitation at the hands of outside agents.
The exemption
also applied to information received by the government as part of
a special data-gathering request. A special data gathering would
occur when any federal agency or authority expressly designated
a request for the voluntary provision of information relating to
cyber security.
There proposal
cited two instances in which critical infrastructure information
falling under one of these categories could be disclosed to the
public: when the information was obtained independently of the party's
submitting the information to the government or when the submitting
party expressly consented to the disclosure.
The bill was
referred to the House Government Reform Committee and the House
Judiciary Committee. A hearing was held in the subcommittee on Government
Management, Information and Technology of the Government Reform
Committee. No vote was held on the bill.
A third bill,
aimed directly at protection of critical infrastructure by preventing
computer crime, was introduced by Sen. Jon Kyl, R-Ariz., on Oct.
11, 2000. The Cyber Security Enhancement Act (S. 3188), would have
allowed companies to submit information regarding weaknesses in
their online systems, as well as information on threats and attacks.
This information would have been exempt from public access; companies
that shared cyber security information with each other would have
received exemptions from antitrust laws. The bill, which was referred
to the Senate Judiciary Committee, did not receive a hearing.
There is every
indication that a cyber security bill will be introduced again in
the 107th Congress. However, a number of organizations are working
on language that can be used to remove some access concerns while
allowing the bill to assuage the concerns of private companies that
information provided will not be misused.
Privacy
commission studies
Three bills were introduced in the 106th Congress which would have
created a federally funded commission to hold hearings and conduct
research into the future of privacy in the age of technology. Though
none passed, they have been resurrected in the 107th Congress in
an effort to ensure that any steps taken to protect personal privacy
at the expense of access are the result of well-reasoned policies.
The three bills
were HR 4049, S 1901 and S 3040. The two Senate bills died at the
committee level without receiving a hearing. S 1901, sponsored by
Sen. Herb Kohl, D-Wis., who introduced it on Nov. 10, 2000, sought
to establish the Privacy Protection Study Commission to evaluate
the efficacy of the Freedom of Information Act and the Electronic
Freedom of Information Act Amendments of 1996. The point of the
review was to determine whether new laws are necessary and to provide
advice and recommendations. S 3040, introduced on September 13,
2000 by Sen. Fred Thompson, R-Tenn., sought to create a Committee
for the Comprehensive Study of Privacy Protection, which would have
been charged with similar tasks.
The House version
was introduced on March 21, 2000 by Rep. Asa Hutchinson, R-Ark.
It was referred to the House Government Reform Committee. Hearings
were held in the Subcommittee on Government Management, Information
and Technology on three days, April 12, May 15 and May 16, 2000,
during which testimony was taken from a number of witnesses.
Some witnesses
opposed the commission because they believed it was a stalling tactic;
they preferred that Congress direct its efforts at existing legislation
in the area of personal privacy rather than creating a commission.
Other witnesses said the commission was necessary for the same reason
that the Privacy Protection Study Commission of 1977 was needed
— clear policies must be delineated before specific action
is taken. Even those who supported the commission questioned whether
the amount of funding would be enough and, whether it would be able
to draft the required final report in its 18-month lifetime, and
whether the selection and composition of the commission was workable.
The subcommittee
approved the bill on June 14, 2000, and the Government Reform Committee
followed suit on June 29. However, it did not receive the necessary
two-thirds votes of the House to pass under suspension of the rules.
Rep. Hutchinson
has reintroduced his bill in the 107th Congress. HR 583 was introduced
on February 13, 2001 and referred to the Government Reform Committee.
EFOIA
oversight
On June 14, 2000, the House Subcommittee on Government Management,
Information and Technology held a one-day oversight hearing on the
status of the Electronic Freedom of Information Act, four years
after that Act's enactment. The subcommittee heard testimony from
a number of witnesses representing a broad spectrum of organizations
with an interest in FOIA. Among the groups represented at the hearing
were the Office of Management and Budget, the United States Department
of Justice, OMB Watch, the Reporters Committee for Freedom of the
Press, and the Society of Professional Journalists.
Government representatives
defended the steps taken to make information more accessible to
the public. They pointed to the proliferation of government Web
sites offering information to the public, the number of documents
posted on those Web sites, and the guidance offered requesters.
Those representing
the requester community pointed out a number of shortfalls in the
Act's implementation, however. They said that agencies were not
complying fully with the requirements of EFOIA and that there was
insufficient oversight to keep enforce compliance. They also presented
examples of problems encountered by the press in using EFOIA, such
as the inability to process data in a useful format, continued delays
in responding to requests, and resistance to providing information
in a particular format.
Though the House
has not announced what it will do to follow up on this hearing,
the Government Accounting Office has received funding to undertake
its own review of FOIA's effectiveness and EFOIA implementation.
Access
to congressional documents
Three bills were introduced during the 106th Congress that would
have increased access to congressional documents, including Congressional
Research Service issue briefs, lobbyist disclosure reports, and
gift disclosure reports. None received consideration by their committees
of referral.
A Senate resolution
proposed by Sens. John McCain, R-Ariz., and Patrick Leahy, D-Vt.,
would provide access to these same documents through various Senate
Web sites. The resolution, which governs Senate procedure, would
direct release of documents through a new Senate database, accessible
through the Senate Sergeant-at-Arms' Web site. Documents that would
be accessible include CRS Issue briefs (long considered one of the
best sources of analysis of legislative issues), CRS Reports available
to members of Congress, and CRS Authorization of Appropriations
Products.
Information
would not have to be placed on the Web site if it is confidential,
as determined by the CRS Director or the head of the federal department
or agency that provided the information, or if the documents are
the product of a confidential research request by an individual,
office or committee.
The Sergeant-at-Arms
is also given the power, in consultation with the CRS Director,
to redact from any posted document personal information about an
employee of CRS and information that may infringe a protected copyright.
The resolution
also states that the Secretary of the Senate, through the Senate
Office of Public Records, must provide certain public documents
through a web site created by the secretary's office and accessible
through the United States Senate web site. These include Lobbyist
Disclosure Reports, which will not be available until 90 days after
they are received, and Gift Rule Disclosure Reports, which will
not be available until five days after they are received. Without
requiring their disclosure, the resolution also expresses the sense
of the Senate that each committee shall provide Internet access
to publicly available committee information, documents and proceedings.
Bills
related to financial information
In addition to the nine bills introduced during its first session,
the 106th Congress continued to work on bills seeking to protect
financial information during its second session. Popularly named
the Financial Information Privacy Act, these bills were introduced
on May 4, 2000, by Rep. John LaFalce, D-N.Y., and Sen. Patrick Leahy,
D-Vt. Both sought to strengthen consumers' control over the use
and disclosure of their personal financial and health information
by financial institutions. HR 4380 was referred to the House Committee
on Banking and Financial Services and the House Committee on Commerce,
neither of which took any action on the bill. S 2513, which was
referred to the Senate Committee on Banking, Housing and Urban Affairs,
met the same fate.
Sen. Leahy intended
to reintroduce a version of his bill in the current session; it
is more focused on the protection of health information. It will
seek to close gaps left by health care privacy regulations released
by the Clinton administration in 1999. Those regulations guaranteed
patients the right to access their own medical records and restricted
employer access to health care information. However, Leahy does
not believe they went far enough to prevent the sale and marketing
of personal information. His bill will create a private right of
action to sue third party companies that misuse or sell patient
information. It will also create an opt-in measure that will force
marketers to obtain consumer consent before calling patients regarding
treatment information.
Medical
information measures
On Sept. 7, 2000, Rep. Tom Bliley, R-Va., introduced HR 5122, which
would have opened the National Practitioner Data Bank to the public.
This data bank was created by Congress in 1990 as an aid to state
regulators, hospitals and other medical employers to monitor the
performance of doctors. It kept track of malpractice and disciplinary
actions filed against these doctors but remained hidden from public
view at the behest of the American Medical Association. In the intervening
time, the data bank has not achieved its desired purpose, as the
lack of public review has allowed doctors to remain free from oversight
under this system. The Hartford Courant reported that 60%
of all hospitals never reported a doctor to the data bank and that
the annual number of reports is less than that which would be expected,
supporting the belief that many cases went unreported. The Courant
also dug up a number of actual occurrences in which a doctor was
dismissed from a hospital but the action was not reported.
Although Bliley
justified his legislation as something necessary to "give consumers
the tools they need to make informed decisions about their doctors,"
the American Medical Association continued to fight public access
to the data bank. The bill was referred to the Committee on Commerce
but did not receive a hearing.
Measures
affecting historical documents
Continuing a recent trend, Congress considered three bills that
would have granted special access to records documenting government
interaction with foreign governments on sensitive matters. These
bills have been opposed by some access advocates who fear that special
interests will use them to create new exemptions n the FOIA.
The Japanese
Imperial Army Disclosure Act (HR 3561), introduced on Feb. 1, 2000,
by Rep. Brian Bilbray, R-Calif., would have required the disclosure
under the Freedom of Information Act of documents regarding certain
persons and records of the Japanese Imperial Army. It was referred
to two House committees, the Government Reform Committee and the
Select Intelligence Committee, but neither took any action.
The Nazi and
Japanese War Crimes Disclosure Act of 2000 (HR 5390) would have
extended the existence of the interagency working group established
by the Nazi War Crimes Disclosure Act, enacted in 1998, and applied
that act to records relating to the Imperial Government of Japan.
The Nazi War Crimes Disclosure Act increased access to records held
by the United States government.
HR 5390 was
introduced on Oct. 5, 2000, by Rep. Bilbray and was referred to
the House Government Reform Committee. No action was taken. A virtually
identical bill, introduced on October 10, 2000 by Rep. Carolyn Maloney,
D-N.Y., was referred to the Government Reform Committee, which took
no action.
Cameras
in the courtroom
One bill that made headway during the 106th Congress was S. 721,
which would have allowed photographing, broadcasting, televising
and recording of federal court proceedings for a three-year experimental
period. The bill, introduced on March 25, 1999, by Sens. Charles
Grassley, R-Iowa, and Charles Schumer, D-N.Y., did not pass the
Senate, although a hearing was held on Sept. 6, 2000, in the subcommittee
on Administrative Oversight and the Courts of the Senate Judiciary
Committee.
Commemoration
of James Madison's 250th birthday
On Sept. 12, 2000, Rep. Tom Bliley, R-Va., introduced a resolution,
referred to the House Committee on Government Reform, commemorating
the birth of James Madison on March 16. The resolution recognized
the historical significance of Madison's birth, as well as his contributions
to the nation and requested that the president issue a proclamation
recognizing the 250th anniversary and calling upon the people of
the United States to observe the life and legacy of James Madison
with appropriate ceremonies and activities. The House approved the
resolution on Oct. 2, 2000, and the Senate approval followed on
Oct. 25, 2000.
In addition,
on September 28, 2000, Sen. Jeff Sessions, R-Ala., introduced S
3137, a bill to establish a commission to commemorate the 250th
anniversary of Madison's birth. The bill was passed by the Senate
on Oct. 25, 2000 and by the House on Dec. 4. President Clinton signed
the bill into law on Dec. 19, 2000. S 3137 directs the Government
Printing Office to compile and publish a substantial number of copies
of a book containing a selection of the most important of Madison's
writings, along with tributes to him by members of the commission.
It requires the coordination of one or more symposia, at least one
of which must be held on March 16, 2001, devoted to promoting a
better understanding of Madison's contribution to American political
culture.
Kevin Goldberg
of the Washington, D.C., law firm of Cohn & Marks is legal counsel
for the American Society of Newspaper Editors.
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