Tuesday, June 10, 2008

Analysis - Improving Public Access to Documents Act of 2008

As noted in a brief blog yesterday (see: "Improving Public Access to Documents Act of 2008"), the text of HR 6193 has been made available on the Library of Congress web site. This legislation attempts to stem the "proliferation and widespread use of "sensitive but unclassified" (SBU) control markings by the Federal government" which "interferes with accurate, actionable and timely homeland security information sharing, increases the cost of information security, and needlessly limits public access to information." {Section 2(1)}

This is potentially of interest and concern to chemical facilities that submit information to DHS under the requirements of the CFATS regulations. The Chemical Vulnerability Information (CVI) ‘classification’ of that information is covered under the rather broad term of ‘sensitive but unclassified’ information referred to in this legislation. Chemical facilities have been told that their submitted CVI is protected from disclosure. The question is; will this legislation remove that protection?

Maximize Disclosure to the Public

Section 3 of the legislation would amend the Homeland Security Act of 2002 by adding Section 210F. The first paragraph of that section would that the:

  • "…Secretary shall develop and administer policies, procedures, and programs within the Department to implement the controlled unclassified information framework in order to maximize the disclosure to the public of … homeland security information, terrorism information, weapons of mass destruction information, and other information within the scope of the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485) that must be disseminated to prevent and to collectively respond to acts of terrorism." (Italics added for emphasis)

Freedom of Information Act Provisions

The new Section 210F includes the requirement for the Secretary to implement that framework in such a way that ensures that:

  • "such polices, procedures, and programs protect the information privacy rights and legal rights of United States persons pursuant to all applicable law and policy" {Section 210F(b)(3)}.

This would seem to protect CVI material from disclosure. However, the same section stipulates that:

  • "controlled unclassified information markings are not a determinant of public disclosure pursuant to section 552 of title 5, United States Code (commonly referred to as the ‘Freedom of Information Act’)" {Section 210F(c)(3)(D)}.

This means that some other provision of the Freedom of Information Act (FOIA) will have to be used as justification not to disclose the information. There are a number of provisions of the FOIA that should allow DHS to maintain the confidentiality of the CVI. This legislation further complicates the FOIA status by requiring that:

  • "Public access to unclassified information.—The Secretary shall make available to the public, pursuant to an appropriate request under section 552 of title 5, United States Code (commonly referred to as the ‘Freedom of Information Act’), all controlled unclassified information and other unclassified information in its possession" {Section 210F(d)}.

This increases the legal tension between disclosure and maintaining confidentiality. Furthermore, this tension is made public by the requirement to:

  • "maintain a publicly available list of documents designated and marked, in whole or in part, as controlled unclassified information, indicating which have been withheld in response to a request made pursuant to section 552 of title 5, United States Code (commonly referred to as the ‘Freedom of Information Act’), and create a process through which the public may seek the removal of such a designation and marking" {Section 210F(b)(7)}.

No Requirement to Disclose CVI

There is nothing in this legislation that specifically requires that CVI be publicly disclosed by DHS. What it does do is to weaken the protections against disclosure. It creates areas of conflict and uncertainty in the provisions for protection of the information that will, inevitably, allow disclosure of that security-critical information.

Whether any single piece of disclosed information will be of benefit to or to the detriment of society will depend on the goodwill and intent of the individual that grants the specific FOIA request. The drafters of this legislation are willing to grant that un-nameable individual the benefit of doubt. Only time will tell if that is a reasonable grant.

Justification to Withhold CVI

What is more certain is that many in industry will see this legislation as proof that the government is not to be trusted with the information necessary to protect their facilities from terrorist attack. Attempts will be made to obfuscate, minimize and even refuse to share vital information under the guise of corporate self-defense. That this will be self-destructive is also clear, but it will happen.

In the long run, the stated purpose of this legislation, to ensure the appropriate sharing of information between federal, state and local authorities and private entities, will be undermined. It tilts the balance too much towards disclosure and only ensures that the government will be more mistrusted.

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