Update 7/21/06
Update 7/21/06
What is News, and Who Decides? The Reporters Committee is drafting a brief the National Security Archive in their battle with the CIA over search fees for records. The CIA told the Archive it would not grant the waiver because the records it sought were not newsworthy, which almost certainly means there’s a pretty good story there.
The Reporters Committee’s concern, and it should be all of ours, is the agency’s decision that it has a right to determine what is news. As Lucy Dalglish notes in the attached memo, the brief will focus on the burdens likely faced by the media if federal agencies were routinely allowed to determine the newsworthiness of public information requests when granting or denying a search fee waiver. RCFP is seeking organizations to join the brief, at no cost. Contact Lucy at Ldalglish@rcfp.org.
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FOIA at 40. Not a big party. Indeed not much to celebrate, but the government management subcommittee of the House Government Reform Committee will hold a hearing on FOIA reform this coming Wednesday (7/26) at 2 p.m. It’s important it get some attention. The primary focus will be on the executive order and whether the President’s directive will really make things better for requesters. But the subcommittee will also hear from four House and Senate sponsors of pending FOIA reform legislation and from at least two requester representatives who will make the point that the executive order alone is not enough to bring about meaningful change. .
One of those is the National Newspaper Association’s Tonda Rush, speaking on behalf of the Sunshine in Government Initiative (SGI). The other is Patrice McDermott from the OpenTheGovernment.org coalition, which has been working on an evaluation of agency responses to the executive order. Representatives from the Department of Justice, the Government Accountability Office and the Office of Management and Budget have been invited to testify.
There is little to no chance that Congress will move any FOIA measures this session, but the hearing could reshape the existing FOIA legislation as it is reintroduced in the next session in January. Just as important, a showing of real interest and tough questioning by committee members could influence the administration to ratchet up the operational and service improvements the EO calls on each agency to undertake.
A collaborative review of some agency improvement plans is available at http://www.openthegovernment.org/otg/FOIAplans.pdf
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Sunset and SSI. The Homeland Security spending bill, approved by the Senate this past week and sent to conference, has an amendment offered by Sen. Judd Gregg, R-NH, that seeks to bring a small degree of sanity to the use of the Sensitive Security Information designation. It requires a timely review of any FOIA request for a document stamped SSI to determine if the information is still sensitive. It also calls for release of non-sensitive portions of the record even if some data is sensitive. It also makes the point that sensitive information does not necessarily need to be protected forever, and effectively sunsets SSI designations after four years unless reinstated.
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To B(3) or Not B(3). There have been a troubling rash of “B(3)” exemptions to FOIA proposed in recent months. Each sought to create a statutory exemption to a certain class of information. The proposals also included language that would override state and local open records laws. The most notable were the BARDA (Bioterrorism Advanced Research and Development Agency) bill and the Department of Defense bid for a broad exemption for any information it considered related to weapons of mass destruction. Both were modified after news reports, editorial objections, and some SGI conversations on the Hill about the potential secrecy abuses. The BARDA bill was changed from a total agency exemption to a B(3) exemption for certain sensitive information. The DoD language now simply provides that the department doesn’t waive its right to withhold sensitive information under FOIA by virtue of sharing it with local officials and first responders. The BARDA bill (S2564) could still use further tightening. There are other B(3) proposals involving port security (S2459, HR4954), and wastewater treatment plants (S2781) we’ve expressed concern about because they threaten local and state laws and because we believe any needed safeguarding of information is possible under existing law; a new statutory exemption is not needed. I’ve attached a copy a draft a set of principles for use by SGI in reviewing B(3) proposals. Comments encouraged.
Pete Weitzel
