Front Page

Column One

• CJOG's 5 Ws
• Our Members
• Our Principles
• Position Papers & Petitions
• CJOG Update
• FOI Calendar

Opening the Government

Tools for FOI Work

• Useful Web Sites
• Help By Topic
• Experts
• Reports, Resources
• Finding Federal Documents

FYI on FOI

• Backgrounders
• Pending Legislation
• Speaking Out
• Commentary
• Story Board
• How You Can Help Open Government

Update 4/7/06

---

Update 4/7/06

Pseudo Classification: A bill that calls for restraints on the use of “pseudo-classification” designations like “sensitive but unclassified,” was approved 32-0 by the House Government Reform Committee and reported to the full House Thursday afternoon. The bill (HR 5112) provides for a series of “good government” executive branch reforms. It’s bipartisan sponsorship: Committee Chairman Tom Davis, R-VA, and Ranking Member Henry Waxman, D-CA.

On a day when reports of the President authorizing Scooter Libby leak of classified information to Judy Miller and on the Senate reaching an immigration compromise dominated, the bill and the committee action didn’t get any attention.

The SBU restraints offer the real possibility of restraining government secrecy at the not-classified information level. Other reforms include bans on secret meetings of lobbyists with members of the executive branch and of covert government sponsored propaganda. And those may get more initial attention when Capitol reporters finally catch up with the bill. But this is an important piece of open government legislation that deserves attention and comment. Please let your members know about it.

I’ve attached a copy of the bill and excerpts on the pseudo-classification provisions, which include a study by the Archivist’s Office leading to recommendations on statutory changes to increase public access to government information.

* * *

And speaking of leaks: In the past several months, members of both Senate and House intelligence committees have expressed concern about unauthorized disclosure of classified information. A few have dropped hints of new legislation that would toughen federal penalties and perhaps include those who receive sensitive information. We’ve been expecting to see that translated in some way into legislation. On Friday, the House Intelligence Authorization Bill came out of committee. There’s no new enforcement language but the bill does call on the Director of National Intelligence to study whether the pensions of those who commit unauthorized disclosures should be revoked.

The accompanying report language is of greater interest: "The Committee has initiated a review of certain specific potential unauthorized disclosures of classified information at the request of the Speaker of the House. That review primarily is concentrating on an investigation of four cases to develop a better understanding of the related facts and circumstances. The investigation is in turn expected to better enable the Committee to understand how and why unauthorized disclosures occur, and how the protection of classified information is perceived in practice.

"By definition, no individual--whether a journalist, government official, or intelligence community employee--can or should singlehandedly presume to determine what information 'deserves' to be withheld from disclosure in order to protect national security, especially without full knowledge of the surrounding context….

“The Committee's work plan for this fiscal year includes reviewing all legal avenues to bring to justice those who violate the law, including those who knowingly receive, what is essentially, stolen classified information.”

The Sunshine in Government Initiative earlier sent a letter to the Senate Intelligence Committee chair and ranking member suggesting new legislation is not the answer. A copy is attached.

Catching up on some other issues:

The President’s Executive Order on the Freedom of Information Act. Each agency must come up with a plan to improve FOIA requester by June 14. Justice has had several “guidelines” meetings with FOIA officers. In an effort to help set the repair agenda, the Sunshine in Government Initiative, of which CJOG is a member, sent a letter to the Justice Department and the Office of Management and Budget with recommendations for new reporting on performance and for operational changes in each agency. A copy is attached.

FOIA Reform Bill. We’ve had several meetings with staff for sponsors of the OPEN Government Act, which has clearly been slowed by the issuance of the executive order. Sen. Cornyn’s staff is working on possible solutions to the issue that’s certain to come up when the bill gets some traction – how to provide more resources to the FOIA task. In every agency now, FOIA has to fight for its share of the administrative money; there is no budget line for providing the public with information it requests. And Cornyn made a floor speech during Sunshine Week saying that the Executive Order is a good first step but his bill is still needed to solve other problems. Some House staffers indicate there could be a hearing on FOIA and perhaps the Executive Order by the Government Reform Committee in late May or June.

BARDA. Nothing new on the Bioterrorism Agency bill. The informal alliance of journalism and non-journalism advocacy groups that were involved in responding to committee staff submitted a proposal (attached) suggesting there be no language of exclusion from FOIA and that any truly sensitive information be classified. We’ve heard nothing further.

Operational Files. We remain concerned about any broadening of operational file exemptions, which really are exclusions from FOIA. The latest exemption was granted in January to the Defense Intelligence Agency but the bill did contain a two-year review provision. We’ve talked with both House and Senate staff about using these two years to do a thorough study of the use of the exemption, which we believe is widely abused to hide records that would be otherwise subject to FOIA. There is a provision in Senate Bill 1803 – the intelligence authorization bill – that extends operational files exemptions currently granted to five intelligence agencies to any operational files they share with the Director of National Intelligence. A Senate report notes that the DNI sought a broader operational file exemption than the one in the bill and recommends a “systematic study and report to the intelligence committees regarding the application of the FOIA to the Office of the DNI” before any action is taken.

Critical Infrastructure Information. The Department of Homeland Security drew a storm of protest when it declared that it would automatically exempt all Critical Infrastructure Information submitted voluntarily by private owners from the Freedom of Information Act. Now it is creating a Critical Infrastructure Partnership Advisory Council of private owners to talk about CII security measures and has announced it will exclude the council and its subcommittees from the federal open meetings laws. DHS did say it believes in “the important principle of transparency as a foundation for public confidence in government” and would operate accordingly. We’ll see.

Pete Weitzel