Update 10/7/2006
Update 10/7/2006
Congress will recess at the end of this week until after the November elections, then return for a short term lame-duck session that will deal primarily with appropriations.
Here’s the status of some legislation we’ve been watching:
The OPEN Government Act (S 394) – the Cornyn-Leahy bill to improve the operation of the Freedom of Information Act – was approved without objection by the Senate Judiciary Committee last week. However Senate floor action, and any action in the House, is unlikely in the time remaining. However, the Senate Judiciary action positions the legislation well for the next Congress, where it will have to be reintroduced. Meanwhile, the House Government Reform Committee, which has held two hearings, is quietly working on its own version of the bill. Subcommittee Chairman Todd Platts, R-PA, and other members appear particularly interested in assuring that the ombudsman section is workable.
Son of BARDA (S 3678) is a merger of the bioterrorism research legislation with a bill reauthorizing the Public Health Service Act. It designates the secretary of Health and Human Services (HHS) as the federal official in charge of emergency public health and medical response, and transfers the National Disaster Medical System from the Department of Homeland Security to HHS. The non-disclosure language is the same as in the revised BARDA bill (the version being moved in the House (HR 5533). It requires the HHS Secretary to designate “specific technical data or scientific information created or obtained” in the development of the medical and other countermeasures as exempt from FOIA. Once designated, the information would be locked from the public for at least five years. Both the Senate and House bills have been reported out of committee and are likely to be voted on this week. We’ve suggested narrowing language but there’s little if any chance until the bills go to conference.
Wastewater Treatment (S2781): This is a really bad bill, sponsored by Sen. James Inhofe, R-OK, that won approval this past week from the Senate Environment and Public Works Committee. Fortunately, there is no House counterpart at the moment. It provides $200 million to underwrite security enhancements to the nation’s water treatment plants, but curiously does not allow the government to retain a copy of the vulnerability assessments on which the grants will be based. It also provides that any information included in the assessment is exempt from both the federal Freedom of Information Act and any state or local public records laws. Anyone who discloses any information in the reports, which includes vulnerabilities to natural disasters or resulting from poor maintenance, could go to prison for a year.
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The Department of Homeland Security, in adopting its Final Rule on Confidential Infrastructure Information, sidestepped the concerns of the environmental and open government communities.
Our greatest concern was the “indirect submission” – allowing owners of infrastructure to submit their CII filings through regulatory agencies they usually deal with. We felt this had the potential to adversely influence the handling under FOIA of now public documents and records regularly submitted to that agency. Nonetheless, DHS said their CII Program Officer would designate “certain personnel” in other federal agencies to accept CII submissions on behalf of DHS but not give them the authority to “validate” the data as Protected CII. The qualification does nothing to mitigate the undue influence concern.
We had argued that DHS should not leave the determination of what constitutes “information in the public domain” – and thus information that can not be designated as CII – to the self-interest of requesters. In response, DHS defined information in the public domain as “information lawfully, properly and regularly disclosed generally or broadly to the public.” It also added a definition of information not in the public domain: “Information regarding systems, facilities, or operational security, or that is proprietary, business sensitive, or which might be used to identify a submitting person or entity.” That gives the submitter very broad discretion.
DHS also said it is in no position to sort out what information might have been filed with another agency as part of regulatory proceedings, and thus not properly included as Protected CII. “It is difficult to imagine how DHS could feasibly determine if and when any “information or statements” in CII had been previously submitted to or relied upon by any Federal agency … or any State, local or tribal entity.” That pretty much gives infrastructure owners free reign to designate any information they want to keep secret as CII by sending it along to DHS.
Pete Weitzel
