Update 12/12/06
Update 12/12/06
The 109th Congress has called it quits, having spent fewer hours on the people’s business than any Congress since the 1948 “do nothing” session. It failed to pass Freedom of Information Act reform but its attention did spur a Presidential Executive Order that could prompt better agency service. It also failed to move Reporter’s Shield legislation.
There were a frw positive notes. Congress also failed to pass a number bills that would further restricted access to information and declined to move along proposals aimed at leakers and, indirectly, the reporters who receive the information that is leaked. And it tightened application of the overly broad Sensitive Security Information law.
Below is a final report on the 109th and the legislation we have spotlighted along the way. I think it indicates that a combination of aggressive media reporting on open government issues, strong editorial comment, and push or pushback by media organizations, can make a difference.
The leadership of the incoming, 110th Congress has promised to promote more openness, with an initial focus on the Congress itself. We’ll see. Only a few days after he suggested conference committees should be open, Sen. Harry Reid, the new majority leader, also proposed a closed, “bipartisan caucus” of the 100-member Senate. Not exactly openness. I’ve attached an Agenda for Open Government, a look at a variety of open government issues that could come up in the new Congress, brief background information and an explanation of our position on these issues.
The 109th Congress and Open Government
Freedom of Information Act Reform. Quiet opposition from the Bush Administration prevented the OPEN Government Act from moving past the Senate Judiciary Committee. The companion House bill was approved by a House Government Reform subcommittee, with some positive amendments. Sen. Patrick Leahy, D-Vt., a Senate co-sponsor, will be the new Senate Judiciary chair. Rep. Henry Waxman, D-Cal., who offered the amendments to strengthen reporting requirements, is the new House Government Reform chair. We expect a modified bill to be introduced early in the new session.
Reporters Shield Law. The initial bill filed by Sen. Richard Lugar, R-Ind., was modified with amendments by Sen. Arlen Specter, R-Pa., the chair of the critical Judiciary Committee, but with strong Justice Department opposition, the bill remained in committee, as did the original House bill filed by Rep. Mike Pence, R-In. These, too, should be refilled early in the next Congress.
BARDA. The initial proposal creating Bioterrorism Advanced Research and Development Authority gave it a blanket exclusion from the public records and meetings laws -- and as a result from any effective public accountability. Organizations and editorial writers and columnists responded quickly and sharply to our alert and the bill’s drafters agreed to listen to our concerns, then agreed to rewrite the bill. Although much improved, we thought the new, statutory exemption provided for bioterrorism information was still too broad. When the BARDA bill was combined into a pandemic preparedness, reorganization and reauthorization bill, we initiated another conversation and the drafters made a series of modifications that narrowed the scope of the exemption to “technical data and scientific information .. that reveals significant and not otherwise publicly known vulnerabilities”, provided for periodic review of non-disclosure decisions and agreed to sunset the exemption in seven years.
Weapons of Mass Destruction: At the urging of the Department of Defense, the initial draft of 2007 Defense Authorization Bill contained a FOIA exemption for “any information” the Pentagon deemed related to weapons of mass destruction and to potential targets of WMDs – not just from FOIA but from state or local open records laws as well. Working with the Sunshine in Government Initiative, we were able to win approval of a substitute that eliminated the exemption but clarified protections of security information that DoD shares with local and state governments.
Port Security: The Port Security bill that passed Congress initially contained an exemption for any information on incoming cargo shipments provided the Coast Guard. When we raised objections, drafters said the confidentiality was required to get industry cooperation to share proprietary information. We pointed to the existing FOIA exemption for proprietary information. The exemption was absent in the final bill. assessments of wastewater treatment plants or information “derived from” such assessments.
Wastewater Treatment. This bill provided a statutory exemption for information on vulnerability assessments and related security plans at local wastewater treatment plants, whether privately or publicly owned. Even the federal government couldn’t get copy of the evaluations. State and local laws were also preempted. The bill was reported out of committee in the Senate but never put to a floor vote. There was no House counterpart.
Official Secrets Act: The bill submitted by Sen. Kit Bond, R-Mo., that would criminalize the disclosure of any classified information, effectively creating an official secrets act, failed to get a committee markup. There was no House counterpart. Congress members, however, continued heavy criticism of leaks to the media and stirred several investigations. The Sunshine in Government Initiative organized witnesses for the media for a House Intelligence Committee hearing on the leaks issue in May and later worked with the Newspaper Association of America and the Ford Foundation in re-establishing a series of dialogues on the media and national security with media members, legislators and representatives of the intelligence community.
Homeland Security Appropriations: This turned out to be an open government win on two counts. Provisions of the Chemical Security Bill that would preempted state and local law were dropped when the bill was folded into the appropriations act. And a House committee, upset with the Department of Homeland Security’s handling of Sensitive Security Information, which is exempt from FOIA, put in a provision that effectively requires that SSI be reviewed for possible release whenever there is a request and released if the initial exemption criteria no longer hold. It also requires SSI to be disclosed after three years unless the information has been folded into an existing security plan..
Federal Contracts and Earmarks: The blogging world can take credit for at least expediting passage of a bill establishing an online database of federal contract information. Bloggers mounted a campaign to identify the senator who placed a secret hold on the bill, and quickly turned up denials from all but Sen. Ted Stevens of Alaska. Once the hold was dropped, the bill sped through Congress. But a bill that would have required online posting of earmarks – those unrequested spending items slipped into appropriations bills – was defeated by the House 70-330 on the final day of the session.
On the non-legislative front, openness won a victory when the Environmental Protection Agency agreed to continue to publish its Toxics Release Inventory annually. The agency also said it would weaken the reporting requirements of chemical and other facilities that handle hazardous materials, and has not budged on that change. The Society of Environmental Journalists was a leader in the protests.
Pete Weitzel
