Shortly after the House passed a Homeland Security Act that contained broad restrictive information provisions, the Senators on the Government Affairs Committee reached a compromise on narrower language. The final House provisions included a broad new Freedom of Information Act (FOIA) exemption, with extremely vague definitions, for information voluntarily submitted to the new Department, granted corporations civil immunity, preempted all state and local open records laws, and made it a crime for any federal employee to release such information to the public. The President proposed a simplistic and overly broad FOIA exemption in his bill. That provision said that, "Information provided voluntarily by non-Federal entities or individuals that relates to infrastructure vulnerabilities or other vulnerabilities to terrorism and is or has been in the possession of the Department shall not be subject to section 552 of title 5, United States Code [the Freedom of Information Act]." None of the terms had been defined. The President’s proposal did not take into account the long-simmering debate over whether any new legislation is needed. Proponents of a FOIA exemption, led by Rep. Tom Davis (R-VA) and Sens. Robert Bennett (R-UT) and Jon Kyl (R-AZ), argued that companies have information that they want to voluntarily submit to the government that could help to countermand potential terrorism. But, they warned, these companies will not submit such information because they fear it could be disclosed under FOIA. Opponents of the FOIA exemption, led by First Amendment advocates and other public interest groups including OMB Watch, argued that FOIA already protects voluntarily submitted information from disclosure. They cite case law, such as the Critical Mass Energy Project v. NRC, to make their point. House Republicans recognized that the President’s proposal was too vague. Led by Davis, the House developed a very broad FOIA exemption, but one far more refined than the President’s. Democrats offered amendments to strip out the FOIA restriction and other information provisions, both while the Select Committee on Homeland Security was considering the bill, and while on the House floor. In the House Select Committee, Majority Leader Dick Armey (R-TX) slightly modified the Davis proposal so that it only covered the new Department of Homeland Security. (The Davis proposal would have covered information voluntarily submitted to a number of agencies.) Otherwise, the Armey proposal was nearly identical to that offered by Davis. It said anything voluntarily submitted to the new Department would be exempt under FOIA. It also had a provision protecting companies that voluntarily submit information from any civil liability proceedings. It had a provision that preempted state and local openness laws to insure that any information that will not be disclosed under the new FOIA exemption will not be disclosed by a state or locality. Finally, it created a new criminal penalty for any federal employee that releases information that is intended to be restricted under the new law. Rep. Rosa DeLauro (D-CT) offered an amendment to strike the Armey language, but 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. While debating the Homeland Security Act on the House floor, Rep. Jan Schakowsky (D-IL) offered another amendment to strip out the restrictive information provisions. The amendment was defeated in a highly partisan vote of 188 in favor and 240 against. At the same time, Davis offered another amendment that would have broadened the Armey proposal by extending the FOIA exemption to any agency the Department of Homeland Security designated or with which the new department shared any critical infrastructure information. Like the Schakowsky amendment, it too was defeated -- in a 195 to 233 vote. While the debate in the House was raging, several Senators were working on a possible alternative for consideration during a Senate Government Affairs Committee business meeting to mark-up Committee Chair Joseph Lieberman’s (D-CT) National Homeland Security and Combating Terrorism Act of 2002 (S. 2452). The Lieberman bill did not include any restrictive information provision or FOIA exemptions. However, it was expected that Bennett, who serves on the Committee, would offer language similar to his Critical Infrastructure Information Act (S. 1456), which was co-sponsored with Kyl. Bennett and Kyl’s S. 1456 proposed exempting voluntarily disclosed "critical infrastructure" information from FOIA -- a concept fiercely opposed by environmentalists, reporters, libraries, and other public interest groups. Sen. Patrick Leahy (D-VT), chair of the Judiciary Committee, which has oversight over FOIA, along with Lieberman and Sen. Carl Levin (D-MI), began discussions with Bennett over a potential compromise that would, in essence, codify existing case law. Most of the public interest community felt this was unnecessary but understand the need for doing something to stave off other, more troubling amendments. At the last second, a compromise was reached and offered at the Committee level by Levin and Bennett. The compromise amendment:

• Applies only to "records" whereas the House version applies to "information." FOIA usually applies to "records," which is a more narrowly-defined term than is "information;"
• Limits the FOIA exemption to records pertaining to "the vulnerability of and threats to critical infrastructure (such as attacks, response and recovery efforts)," rather than the much broader proposal of any "critical infrastructure information;"
• Defines "furnished voluntarily" (which are the records covered by the exemption) more narrowly than the Administration or House proposals to ensure that records submitted by companies to obtain grants, permits, licenses, benefits or other government approvals are still subject to the FOIA process; the House bill defines voluntary submissions more broadly to exempt many more documents;
• Contains no civil immunity provision, no preemption of state or local openness laws, or any effort to criminalize disclosure of information as the House bill does, and it does not contain an antitrust immunity/protection as the Bennett-Kyl proposal did.

According to Bennett, he vetted the compromise with the Bush administration and it endorses the compromise. Bennett also said that the business community, while wanting more, can live with this language. So, although the bill still faces debate on the Senate floor, where any number of amendments could be offered, it is expected that the compromise will prevail. Once the bill passes the Senate, it must then be reconciled with the House. If the Senate language retains its strong bipartisan support then it should be heavily favored over the contentious House language in the final bill.