Thursday, June 12, 2008

Subcommittee Hearing on HR 6193

The House Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment held its first hearing yesterday on HR 6193, Improving Public Access to Documents (IPAD) Act of 2008. The testimony presented outlined the problems associated with the proliferation of Sensitive But Unclassified (SBU) designations in the executive branch of the government.

Information Sharing Within the Government

Caroline Fredrickson, from the ACLU, noted that:

  • "The improper use of control markings can forestall the sharing of critical information with state, local and tribal law enforcement officials making it all the more difficult for local law enforcement to know the vulnerabilities in their own communities."

The lack of common definitions for SBU material or standardized procedures for controlling such information makes it difficult to share information within the Federal government. Expanding the sharing of that information to state and local agencies is practically impossible. Establishing a common definition and procedures within DHS will go a long way to increasing the flow of information within the government at all levels.

As Chairman Thompson noted in his statement:

  • "The elimination of over a hundred Sensitive But Unclassified (SBU) designations will make it easier to share information. It will also help end the ongoing confusion caused by a lack of standards."

Information Sharing with the Public

The drafters of this legislation and all three of yesterday’s witnesses seem to agree that much of the information currently marked as SBU should be capable of being shared with the public. That may be a leap of faith, since they all agree that there is no adequate accounting of how many documents or how much information has received that ‘classification’.

Patrice McDermott, from OpenTheGovernment.Org notes that:

  • "We are all agreed that there is information that does need to be protected for some period of time. The tension, though, is not between openness and security; it is between information control for bureaucratic turf, power, and more than occasionally political reasons and the reality that empowering the public makes us safer."

This bill attempts to return release of information decisions to the standards set in the Freedom of Information Act (FOIA). Since this material is, by definition, ‘unclassified’, it would seem that there should be adequate provisions in the FOIA to protect the information that Congress has deemed necessary to protect.

Making Disclosure Exceptions Explicit

As I noted in yesterday’s blog (see: "Revise HR 6193") this may not be true for the Chemical-Terrorism Vulnerability (CVI) information that falls under the SBU label. In that blog I noted some clarifications that could be added to this bill to make the Congressional intent broadly outlined in the Section 550 authorization for CFATS more explicit.

There may be other legitimate security areas under the currently over-broad definition of SBU that require explicit exemptions from FOAI disclosure. This legislation, under the review and oversight of the House Homeland Security Committee, would seem to be the appropriate place to provide for specific homeland security exemptions from FOAI disclosure.

Subcommittee Markup

The subcommittee met in a second session after this hearing to mark-up the present bill. The results of that markup were not posted when I shut down my internet connection yesterday afternoon. They will probably be available today. The markup may be premature since the subcommittee has not given DHS an opportunity to comment on the legislation. That legislative faux pas will certainly be corrected before the full committee markup takes place.


The subcommittee action document is posted on the committee web site this morning. "Amendment in the Nature of a Substitute offered by Ms Harmon" is the only comment on all four bills covered during the markup. The subcommittee agreed the substitute versions of each bill. We will have to wait to see the published versions of the substitutes to see what was actually done.

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