Update 2/16/06
Update 2/16/06
BARDA
The Senate Subcommittee on Bioterrorism redrafted its bill creating a new agency to oversee the nation’s bioterrorism defense to eliminate the exclusions from the Freedom of Information and Federal Advisory Committee acts that we had objected to, replacing them with a section that creates a (b)3 or broad statutory exemption. We’ve been working with a number of non-journalism, open government advocacy groups to come up with some language that sets tighter criteria for sealing records and eliminates any special FACA waivers.
After a lot of discussion, and drafting (b)3 language that was as narrow as we could think to make it, we came to the conclusion the better route is to urge the committee to establish a classification procedure for any bioterrorism information that is considered truly sensitive and whose release would pose a danger to the country or any population area. The thought is that very high walls around a very small amount of information is preferable to a picket fence around a broad field of data.
In large part, our redirection was influenced by the just published study by the a the National Academies of Science which argued that “the results of fundamental research should remain unrestricted except when national security requires classification of the information.” The report said other restraints on information “are not likely to reduce the risks” and would, in fact, “make it more difficult for civil society to protect itself.” The report is at: http://www4.nationalacademies.org/news.nsf/isbn/0309100321?OpenDocument
I’ll send the NGO group’s response is to Kadlec when it’s ready. But it will suggest language for the BARDA bill that provide for the drafting of classification criteria by a science-public health based panel, with public input.
Calendar Notes:
Sunshine Week, March 12-18. Please, talk it up in with your members and encourage everyone to find a way to write about or talk about open government during the week. We need a national dialogue that will help people understand how transparency benefits them and we need office holders to hear the rumble. Sunshine Week coordinator Deb Hernandez has pulled together a collection of :”Bright Ideas” from last year’s coverage. If you haven’t seen a copy of the book, you can get the e-version at http://www.sunshineweek.org/ . While there, also take a look at the nifty charts on FOIA she’s created using CJOG and other studies. You’re welcome to use steal them for Sunshine Week use – or any other open government reports.
National FOIA Day, March 16. A day-long workshop at the Freedom Forum in DC on open governance. Details at the First Amendment Center website: http://www.firstamendmentcenter.org/
An Open FOIA Website?
The Center for Democracy and Technology, http://www.cdt.org/, which recently started a website that posts or links to reports of the independent Congressional Research Service, http://www.opencrs.com/, is shopping a new idea – an Open FOIA Website – which would index and link to information obtained through Freedom of Information requests and then posted, or made available, by the successful requesters.
It would be a FOIA cooperative, a way requesters to share records they’ve received that may have information valuable to many others. It might also be a way for reporters to make available to others data about other regions that they obtain through FOIA in doing local or regional stories.
CDT is just getting started, trying to get a sense of interest and support for their funding efforts. They took a similar approach in starting the CRS report website, which registered a million downloads in January.
The Intelligence Authorization Bill (S 1803)
Section 410 has been in and out of the Senate’s Intelligence Authorization Bill, but it’s back in – and it could greatly expand the closure of intelligence agency information under the rubric of “operational files.” The “operational file” exclusion from FOIA was initially granted the CIA, back in 1984, to cut down on time-consuming search resulting from FOIA requests the CIA said it was going to deny, anyway, because the information related to sources and methods of operation.
Since then, the National Geo-spatial Intelligence Agency, the National Security Agency, the National Reconnaissance Office, and last month the Defense Intelligence Agency, have been granted similar authority to exclude operational files from FOIA search and review. Congress doesn’t even bother to hold a hearing anymore, and buries the provisions deep in broad authorization bills no one wants to monkey with by the time they get to the floor.
And along the way, the intelligence agencies have learned to use the exclusion to lose a lot of records by putting records indexes among the Op File. That means the indexes don’t get searched when a request comes in and so no record is found.
Section 410 is written in a way that could extend the operational files
exclusion to all records of the new Director of National Intelligence.
The Sunshine in Government Initiative is drafting a letter to Congress and is seeking to meeting with key committee people in opposition to the exclusion. Some solid reporting and strong editorials would help.
OPEN Government Act
The FOIA’s 40th birthday is coming up in July, but it will surely be the same old act that is celebrated. The President’s mid-December Executive Order has stopped the limited momentum for legislative reform. The order calls for each department and agency to develop improvement plans by mid-June and directs the attorney general, using that information, to issue a report and recommendations four months later. That, plus a crowded calendar and the pending fall election campaigns, prompts a wait-and-see-what-the-order-brings response when you bring up the OPEN Government Act on the Hill.
There seems to be a holding pattern on the cameras-in-courtroom and reporter’s shield bills as well. Meanwhile, a half dozen states are looking at shield bills as well and passage seems probable in several, particularly Washington where the attorney general initiated the legislation.
Pete Weitzel
