www.ire.org Search IRE  Member sign-in History How we started, Bylaws, The Arizona Project, Endowment Membership Benefits, How to Join, Find an Investigative Journalist, Listservs, Update Your Address Training Conferences, Seminars, Fellowships, Training Materials Resource Center 20,000-plus investigative stories, 2,000 Tipsheets, Reporting Guides, Beat Sources Broadcast Center Videostreamed clips, IRE feeds, IRE videos Database Library Government database collection, Data analysis Campaign Finance Information Center Campaign Finance Database, Stories FOI Center Columns, Awards, FOIA Database, Tipsheets The IRE Store Books, Audio tapes, Databases, Periodicals, IRE Logo Goods Job Center Hot jobs in journalism, latest fellowships and grants IRE Awards Latest contest, Past winners, How to enter Educators IRE Journalism Educators' Center IRE Board Elected members, Committees IRE Staff Staff members, Contacting us Privacy Policy

---

FOI Columns
Return to The FOI Center


September-October 2003

Federal security provisions could shield corporate info with new 'classified ' label
by Charles Davis

Buried in the bylines from Iraq is the Byzantine world of information policy, where the stakes for investigative journalists are being raised daily by a government intent on shielding its processes from public scrutiny. The assumption at the heart of recent information policy - namely, that secrecy will make us safer - flies in the face of all existing evidence, but that is not slowing the Department of Homeland Security even a bit.

Beryl A. Howell is executive vice president of Stroz Friedberg, a computer forensics and cybersecurity firm, and previously long-time general counsel for the Senate Judiciary Committee under then-Chairman Patrick Leahy. In an insightful piece in the June 2 edition of The Legal Times, he takes the reader on a relentlessly dispiriting tour of the Department of Homeland Security 's notice of proposed rulemaking concerning information shared with, produced by or disseminated by the sprawling new bureaucracy.

Howell is no Chicken Little, her eye trained by years of battle in Washington to examine all sides of every issue. Her conclusion: "This proposed rule contains the recipe for screening from public view all kinds of vital information about federal government actions. If it takes force, it may frustrate the missions of federal regulatory agencies and shield bad actors in the private sector, without fulfilling its intended purpose of improving the security of America 's critical infrastructure."

In other words, precisely what freedom of information advocates feared, and corporate actors fervently hoped for, during the legislative sausage-making that yielded the department.

Classification scheme
All the ingredients for a governmental black hole were assembled by a piece of the massive Homeland Security Act titled the Critical Infrastructure Information Act of 2002.This provision grants special protections to information marked as "critical infra- structure information," to encourage the sharing of private-sector CII with the government.

As Howell so expertly details, the new law "essentially invites companies to dump irrelevant information on the government without any guarantee the government will be given access to key information needed to harden the defenses of critical infrastructures." The proposed rule gives no guidance to businesses on identifying what is - and is not - CII, basically inviting corporations to stamp everything classified.

The proposed rule outlines what will become a Cold War-era classification scheme. Under the rule, all information submitted, either orally or in writing, by businesses to any government agency will enjoy automatic secrecy. It even comes with its own rubber stamp. All businesses need to do is mark the information with the following preamble: "This information is voluntarily submitted to the Federal Government in expectation of protection from disclosure as provided by the provisions of the Critical Infrastructure Information Act of 2002."

Corporate information thus stamped will enjoy special protections from disclosure to the public under the Freedom of Information Act, state "sunshine " laws, the Federal Advisory Committee Act, and even Congress. Once stamped CII, the information essentially disappears from public view, now and forever.

Surely the information must have some link to CII, right? The proposed rule states that for information to be eligible for protection, the information must not customarily lie in the public domain, that it is voluntarily submitted to "a covered federal agency," which is limited by definition to the Department of Homeland Security, and that it contain the soon-to-be-ubiquitous CII stamp.

But the proof, or lack thereof, of any effective policy lies in the enforcement of its language, and the rule as proposed contains not a single word to that effect. Corporations are placed on the honor system, it seems, and given discretion to do the right thing. Not only is there no policing of compliance, there is no guidance given for corporate counsel whatsoever. There are no penalties, not even for willful violations. One can only assume the lawyers and judges will do the defining, years and years of litigation later.

Restore FOIA
Corporate types lobbying for the CII exemption in the Homeland Security Act knew what they were doing. The federal Freedom of Information Act contained adequate exemptions to protect CII information - the government 's lawyers have admitted as much - but FOIA would have required submitters to segregate non-exempt portions of CII records for disclosure. The proposed rule does not. As Howell notes: "Consequently, agency documents relating to the safety of critical infrastructure facilities that are of enormous interest to the public but that reference or incorporate CII-marked information may be kept under wraps in their entirety."

The proposed rule may not be the final word on the subject, however. Sen. Leahy, joined by Sens. Robert Byrd, Carl Levin and Robert Graham, recently introduced a bill called the Restore Freedom of Information Act. "Restore FOIA " would replace the current exemption with a more carefully crafted one. The bill would shield from disclosure information that legitimately relates to threats to our critical infrastructure and companies ' confidential business information, but it would not cut off public access to the type of health, safety, and environmental information that citizens up to now have had a right to obtain.

"Restore FOIA " would essentially return the exemption to compromise language a year ago that was supported by Sen. Robert Bennett, who wanted to protect critical infrastructure information, and Leahy and Levin, who wanted to protect FOIA access. It was also acceptable to government watchdogs, many of whom worked for months on the language. But Bennett, emboldened by Republican gains in the midterm elections, later voted with all but one of his fellow Republicans to pass the House version of the Homeland Security Act, without the FOI protections. The victory of partisan politics over rational lawmaking is what produced the department 's radical interpretation of the exemption as it stands.

Whether or not "Restore FOIA " has political legs, the notice-and-comment period on the regulations implementing the provision closed June 16. The black hole is now in effect.

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.