FOIA Constancy in Senate Homeland Security
The latest homeland security bill in the Senate, sponsored by Sens. Phil Gramm (R-TX) and Zell Miller (D-GA), contains information provisions that would exempt documents voluntarily provided to the new Department of Homeland Security from disclosure under the Freedom of Information Act. The language is exactly the same as the Leahy-Bennett-Levin amendment that resolved this issue in Sen. Joseph Lieberman’s (D-CT) bill on homeland security. Lieberman’s bill failed to pass a cloture vote after Sen. Robert Byrd (D-WV) filibustered the bill.There is no certainty that the Gramm-Miller bill will be the basis for Senate action on establishing a new Department of Homeland Security or that there will be any action at all this session. However, the continued use of the bipartisan compromise FOIA language is encouraging, especially since the Homeland Security bill that passed out of the House (H.R. 5005) contained much more restrictive information provisions. Along with a broader FOIA exemption, the House bill precluded civil action based on information that is voluntarily disclosed, pre-empted state disclosure laws, and criminalized the releasing of critical infrastructure information. Even if the narrower FOIA exemption crafted by Sens. Patrick Leahy (D-VT), Robert Bennett (R-UT) and Carl Levin (D-MI) remains in whatever homeland security bill the Senate chooses to pass, it will require continued bipartisan support as it is conferenced with the more restrictive House provisions.