Department of Homeland Secrecy

The secrecy proposal began in President Bush’s proposal for the creation of a new Homeland Security Department as a single vague and overly broad sentence describing a new FOIA exemption for information concerning “infrastructure” and “vulnerabilities” that was “voluntarily submitted.” Numerous information provisions which go much further have now been proposed to replace this section of Homeland Security Act. The House Select Committee reviewing the Homeland Security Act has approved one of those expanded versions of the President’s FOIA exemption for certain critical infrastructure information voluntarily shared with the federal government. The House proposal still creates a new blanket FOIA in order to “protect” this information from public disclosure. The proposal also describes the exemption with language such as “not withstanding any other provision of law,” which could be used to even conceal information required by the government. Unfortunately the House information provisions go even further by granting corporations unprecedented immunity from the civil consequences of violating the nation’s securities, tax, civil rights, environmental, labor, consumer protection, and health & safety laws. These provisions would essentially tie the government’s hands, and potentially those of third parties as well, in holding corporations accountable for wrongdoing. The information proposals would also preempt all state and local open records laws. State and local authorities would be barred from disclosing information that is required to be public under state or local law if it is withheld at the federal level. Additionally the section contains a provision that would criminalize the release of this information with up to a year in jail. The House Select Committee passed the information provisions after an amendment, offered by Rep. Rosa Delauro (D-CT), to remove the FOIA exemption section from the bill was defeated in a party line vote of 4-5, with all of the Republicans voting to keep the exemption, and all of the Democrats voting to remove it. It has also been reported that more than a dozen Blue Dogs, a coalition of moderate House Democrats, sent a letter urging their colleagues to support FOIA exemptions to foster more sharing of information with the government on computer-security liabilities. It remains to be seen if the restrictive information provisions will find as much support in the Senate as they begin to take up the Homeland Security Act in earnest. Currently, Senate Government Affairs Committee, chaired by Senator Lieberman (D-CT), is scheduled to begin to consider amendments on the National Homeland Security and Combating Terrorism Act of 2002 (S. 2452) on Wednesday July 24th. This bill, a modified version of one offered by Sentor Lieberman in the beginning of May, differs strongly from the President’s proposal and does not currently include any restrictive information provision or FOIA exemptions.
back to Blog