The San Diego Union-Tribune

March 15, 2005

Planned bill targets improper shielding of records from public

By Dana Wilkie

WASHINGTON – Concerned that private companies are inappropriately using new homeland security laws to shield records from public view, a leading senator today plans to introduce legislation protecting records only if they are critical to national security.

The bill by Sen. Patrick Leahy, D-Vt., comes as journalism organizations and First Amendment advocates celebrate the first national "Sunshine Week," which spotlights the importance of open government.

"These have been tough times for the public's right to know and for the Congress' duty to know what the government is doing," said Leahy, who will discuss his bill – the "Restoration of Freedom of Information Act" – at a hearing of the Senate Judiciary Committee today.

"Government secrecy is being ratcheted up to levels unseen in recent times."

With the creation of the Homeland Security Department, the White House and Congress exempted from federal open-records laws "critical infrastructure" information that private businesses voluntarily submit to the Department of Homeland Security.

The idea was to get companies to share more information with the promise it would not be made public.

But the decision to keep such records out of public view is based on broad definitions and complicated criteria that allow companies to shield even information that should be public, Leahy said.

He said big polluters, for instance, can hide mistakes from public view just by stamping "critical infrastructure information" at the top of the page.

"Unfortunately, the law that was enacted undermines federal and state sunshine laws permitting the American people to know what their government is doing," Leahy said. "Rather than increasing security by encouraging private sector disclosure to the government, it guts FOIA (the Freedom of Information Act) at the expense of our national security and the safety and health of the American people."

Leahy said his legislation makes it clear that companies can only designate records as "critical infrastructure" if they pertain to the "vulnerability of and threats to critical infrastructure."

Such infrastructure might be nuclear power plants, bridges or other things that could become terrorist targets.

Media organizations and other First Amendment advocates have declared this "Sunshine Week" to press for more access to government information. They contend that government officials are increasingly using post-Sept. 11 security concerns as the reason for withholding information from public view.

Last week, Leahy and Sen. John Cornyn, R-Texas, introduced a bill that would create a 16-member "Open Government Commission" to suggest ways to reduce delays in getting information under the FOIA.

In February, the two lawmakers also wrote the "Openness Promotes Effectiveness in our National Government Act of 2005," which promotes accountability, accessibility and openness in government, primarily by strengthening the FOIA.

Today's hearing will examine the latter bill, but also touch on the Restore FOIA Act, a Leahy spokeswoman said. Leahy is the Judiciary Committee's top Democrat; Cornyn is also on the committee.

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