Levin Offers Legislation to Restore Freedom of Information Provisions in Homeland Security Act

WASHINGTON – Sen. Carl Levin, D-Mich., and four Senate colleagues today introduced legislation to replace the broad Freedom of Information Act provisions that were passed as part of the Homeland Security Act last year. The Restore Freedom of Information Act (Restore FOIA) would strike the existing Homeland Security Act FOIA exemption for "critical infrastructure information" and replace it with a FOIA exemption that would protect both the public's right to know and companies' confidential business information.

"The principles of open government and the public's right to know are cornerstones of our democracy," said Levin. "We cannot sacrifice these principles in the name of protecting them. The Homeland Security Act was never intended to protect polluters or special interests from public scrutiny. Our bill would strike a balance between security and openness."

The Homeland Security Act contains a provision intended to encourage companies to voluntarily share information about unclassified critical infrastructure with the government to help identify potential vulnerabilities to terrorist attacks. Critical infrastructure includes roads, bridges, computer grids, water treatment plants, utilities, telecommunications and other systems crucial to our country. Most of the critical infrastructure in the United States is controlled by private companies, which feared that the critical infrastructure information they voluntarily provided to the government could be improperly disclosed.

In the Homeland Security Act, companies sought and received an overly broad exemption from the requirements of the Freedom of Information Act. Under the law, material labeled "voluntarily submitted critical infrastructure information" and furnished to the Department of Homeland Security by companies cannot be disclosed or used by government officials except for certain very narrow purposes. Media organizations, public interest groups and others fear that companies will send important environmental and safety information to the Department of Homeland Security under the general heading of "critical infrastructure information," and that under the FOIA exemption this information will be out of the public's reach.

The Restore FOIA legislation defines the key term, critical infrastructure, in a much more focused way by drawing from existing case law that has already been tested by the courts. The definition of "critical infrastructure information" would limit the FOIA exemption to records that actually relate to the vulnerability of and/or threat to critical infrastructure. Restore FOIA also sets no restrictions on the government's use and sharing of records within the government; does not preempt any state or local disclosure laws for information obtained outside of the Department of Homeland Security; maintains whistleblower protections for federal employees; and does not forbid the use of such information in civil court cases to hold companies accountable for wrongdoing.

Senators Patrick Leahy, D-Vt., James Jeffords, I-Vt., Joseph Lieberman, D-Conn., and Robert Byrd, D-W.V., joined Levin in introducing the legislation. Levin, Leahy and others had worked out a bipartisan compromise in the Governmental Affairs Committee on the FOIA issue when the Senate considered the homeland security bill last year that had the administration's support, but the compromise was dropped from the final legislation.

Organizations supporting the Restore FOIA bill include the National Newspaper Association, the National Press Club, Magazine Publishers of America, OMB (Office of Management and Budget) Watch, Natural Resources Defense Council, Sierra Club and the American Library Association.

More information on the Restore Freedom of Information Act is below:

• Sectional analysis of Restore FOIA [PDF]
• Side-by-side comparison of Restore FOIA and the Homeland Security Act [PDF]