Open-government advocates leery of homeland security bill
By The Associated Press
Editor's note: The Associated Press reported that on Nov. 19 the Senate approved the homeland security bill, which includes language that could make it more difficult to obtain information under the Freedom of Information Act. The bill also makes it a crime for an agency employee to reveal information that is supposed to be secret.
WASHINGTON Writers of the homeland security bill, in their quest to shield secrets from terrorists, may end up keeping information from the public that it needs to know, news media and watchdog groups say.
At issue is whether the legislation to create the massive federal agency will erect prohibitive barriers to openness by making it easier to deny requests under the Freedom of Information Act.
The Senate is expected to pass the bill, already approved by the House, this week. Senators are to vote today on an amendment that would strip the bill of language exempting advisory committees from public-disclosure rules.
"This unnecessary blanket authority," said Sen. Robert Byrd, D-W.Va., a vociferous opponent of the legislation, "will give the president carte blanche to expand the culture of secrecy that now permeates this administration."
Bush administration officials and the business community argue that the very nature of the new Cabinet-level department puts a premium on discretion and that the private sector needs assurances of confidentiality if it is to cooperate with the government in addressing terrorist threats.
"The department will have that as an arrow in its quiver when it goes to businesses," said Laurence W. Brown, director of legal affairs at the Edison Electric Institute, which represents investor-owned utilities. "There will be no excuses now for keeping things secret" from the government.
Disclosing information supplied by the private sector, White House Office of Homeland Security Director Tom Ridge told senators last summer, "could draw a roadmap of critical infrastructure vulnerabilities for those who would do us harm."
Last June, Sens. Robert Bennett, R-Utah, Carl Levin, D-Mich., and Patrick Leahy, D-Vt., worked out a compromise on the freedom-of-information issue. It addressed the security needs of the department but won guarded approval from those who seek information on government activities.
Their deal codified current law on freedom-of-information exemptions for security matters and "we were willing to live with that," said Tim Edgar of the American Civil Liberties Union.
"We all understand the need for security on some things," said Bill Felber, executive editor of the Manhattan Mercury in Manhattan, Kan., and FOI chairman of Associated Press Managing Editors.
But the White House-approved, House-passed version of the bill the Senate is now considering has broader FOI exemptions that some feel tip the balance against the public interest.
Kevin Goldberg, legal adviser for the American Society of Newspaper Editors, said that, for example, a nuclear plant and the agency could withhold information about a security danger. "If there's a problem so pervasive and so dangerous that a private company needs to discuss it with the government, it's probably important enough for the public to know," he said.
Unlike the Senate compromise that exempted from FOI requests records furnished voluntarily to the department, the House version protects any critical infrastructure information from disclosure. The House version also states that a federal employee who releases information that is supposed to be kept secret faces up to a year in prison, and says nothing about redaction so people can receive some portion of records.
"With the draconian penalty provisions the chances of having appropriate, productive conversations with people on this topic are virtually out the window," said Ed Jones, editor of the Free Lance-Star in Fredericksburg, Va., and president of Associated Press Managing Editors.
The House language, said the ACLU's Edgar, "is a disaster for the public's right to know" about issues that could directly affect lives, ranging from defects in railroad tracks to problems in blood supplies. The broadened language, said the APME's Felber, "is not necessarily a good thing for public knowledge."
Sen. Bennett said that while the House language differed from the compromise he helped develop, "it will not give companies cover to break the law or conceal bad acts. ... It will increase the flow of information about our nation's vulnerabilities, imperative in this environment."
The second information issue deals with a provision that exempts ad hoc policy-making committees within the department from the 30-year-old Federal Advisory Committee Act, which requires advice provided by these committees to be accessible to the public.
The law already allows the president to waive these disclosure rules for national security reasons, and Sen. Byrd and others say the secrecy clause has been extended mainly to shield private companies seeking to influence government policy from public scrutiny.
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