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FOI Columns
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September-October, 2002
Withholding information by wrapping it in a flag
by Charles Davis

The devil is in the details, they say, and the trick is getting Congress to pay attention to them. Buried in the Bush administration 's 35-page homeland security department proposal is this little gem: "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. "

For those of you unfamiliar with legalese, section 552 is the federal Freedom of Information Act, and no, there is no hidden meaning here: the president wishes to carve the largest single exemption in the history of FOIA. Imagine any information "relating " to homeland security being whisked into this super-exemption, no questions asked, simply because it is being voluntarily provided by industry -and the corporate world will become incredibly patriotic about sharing with the Department of Homeland Security.

The sweeping language of this proposed exemption raises a number of important questions. Precisely what types of information would be withheld? How closely must the information "relate "to infrastructure vulnerabilities to merit protection? What qualifies as infrastructure or vulnerabilities? What counts as "voluntarily " provided? Is voluntarily submitted information that "is or has been in the possession of the Department "exempt from disclosure even if it was obtained by another agency as part of the everyday regulatory process?

Homeland Security Director Tom Ridge has told the press in recent weeks that the proposal is a work in progress, and that everything is on the table.

Perhaps, given the administration 's deep and abiding love for secrecy, journalists should be very, very afraid.

Protecting information
The best reason to fear the prospects of the super-exemption is that such protection for corporate America has been on the wish list of several members of Congress for years now. In fact, the language in the homeland security exemption mirrors a failed legislative effort last year by Sens. Robert Bennett (R-Utah) and Jon Kyl (R-Ariz.). Reps. Tom Davis (R-Va. ) and James Moran (D-Va.) introduced a similar bill in the House. Both bills proposed to protect voluntarily disclosed "critical infrastructure " information from FOIA. It failed after a spirited campaign by public interest groups, journalists and others concerned about maintaining scrutiny of the regulatory process. Having failed the test of the democratic process, proponents of critical infrastructure secrecy stuck in the homeland security wording, hoping that wrapping it in motherhood and apple pie will silence its critics.

The arguments for the exemption haven 't changed. Proponents of the FOIA exemption argue that it will encourage private businesses to share information about potential vulnerabilities in the nation 's physical and cyber infrastructure.

This is far from true: Exemption 4 of the FOIA, the "trade secrets "exemption, already provides near-blanket protection for such information.

In fact, last year when industry representatives argued that an exemption was needed before private companies would voluntarily share infrastructure information with the government, a senior FBI official testified at a congressional hearing that the FOIA already prohibits the release of sensitive commercial or financial information received from the private sector.

Ronald L. Dick, director of the FBI 's National Infrastructure Protection Center, said "[W ]e believe that there are sufficient provisions in the FOIA now to protect information that is provided to us. "

The reality, of course, is that corporations could use the exemption to indefinitely hide embarrassing data from the public and other government agencies. In a post-Enron, post-WorldCom world, that 's a tough sale, so the corporate world must be thrilled that the rhetoric has shifted from corporate secrecy to the amorphous-yet-patriotic homeland security.

The fact remains, however, that a miniscule amount of corporate data ever emerges from FOIA requests, and between Exemption 4 and Exemption 1, the national security exemption, this is much ado about nothing. It 's bad policy, and it would help Ridge and Bush create a federal bureaucracy free from media scrutiny.

Equally disturbing is the proposal 's take on whistle-blowing, recent history be damned. As proposed, the administration bill allows the secretary of homeland security - acting unilaterally -to choose how (or whether) employees would be covered by current legal protections against reprisal when they call attention to instances of agency failure.

This despite the dramatic whistle-blowing of Minneapolis FBI Special Agent Coleen Rowley, who was praised by Bush and Ridge in press conferences for her courage in coming forward to blast her bosses. Rowley 's case would argue for extending whistle-blower protection to the FBI, and making it a permanent protection for all employees of Homeland Security.

Allowing the Department of Homeland Security to exempt itself from the Whistleblower Protection Act would seal off investigative reporters from the most important sources in government - the lower-to-middle-level employees who must follow orders that sometimes run afoul of morality.

Like the FOIA, that law is a powerful ally of the public interest and those citizens who are interested in maintaining the accountability of our government and its officials. Government employees should remain free to report abuse, misfeasance, official misconduct and outright criminality.

Hope remains for reason to prevail. In congressional hearings, members of both parties have made it plain that the administration is overreaching. Ridge is not backing down, though: he has defended the FOIA exemption, and has even asked for the power to suspend normal procurement rules and the anti-secrecy provisions of the Federal Advisory Committee Act.

All this secrecy must be examined against the backdrop of the biggest government reshuffling since 1947. The proposal moves about 100 federal entities into a single cabinet agency with an annual budget of more than $37 billion and about 170, 000 employees, and charges this new department with keeping us all safe.

All of which makes some form of scrutiny all the more important for the Department of Homeland Security, for all our sakes.


Charles Davis is executive director of the Freedom of Information Center, an associate professor at the Missouri School of Journalism and a member of IRE's First Amendment task force.