Wednesday, July 30, 2008

HR 6193 Status Update 7-28-08

Well, it took just one month, but the House Homeland Security Committee finally completed its report on HR 6193. The committee report (House Report 110-779) and the amended bill are now available for review on the Library of Congress web site. Now we can see what changes have been made to the Improving Public Access to Documents Act of 2008


Since I have already reviewed the bill in depth (see: “Analysis - Improving Public Access to Documents Act of 2008”) we can look at the significant changes to the bill. I say significant because the vast majority of changes are editorial in nature. These changes are of interest to scholars and lawyers arguing cases in the appellate court system.


Changes in HR 6193


There are two significant changes:


  • Change in the implementation schedule from 180 days to one year {Section 210F(b)}.
  • Added ‘protecting national security’ as on of the requirements of the new program {Section 210F(b)(3)}.


The changes in the implementation schedule are a realistic appraisal of the time necessary to take a new regulation through the writing and approval process. This is especially true when the legislation requires that the Archivist of the United States is to be ‘consulted’ with during the development of the regulation.


The inclusion of ‘national security’ corrects an apparent oversight in the original wording of the bill. Allowing for a national security reason to protect information would seem to be a no-brainer except that there is already a procedure for protecting ‘national security’ documents, the standard document classification system.


Protecting CVI


As I pointed out in an earlier blog (see: “Revise HR 6193”) there is no specific exemption in this legislation for protecting Chemical-terrorism Vulnerability Information from disclosure in a Freedom of Information Act action. CVI information should be protected under Section 210F(b)(3);


  • “(3) ensure that such policies, procedures, and programs protect the national security as well as the information privacy rights and legal rights of United States persons pursuant to all applicable law and policy, including the privacy guidelines for the information sharing environment established pursuant to section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), as appropriate;”

The purpose of the regulations required under this act is to maximize disclosure of information. According to Section 210F(a)


  • The Secretary shall develop and administer policies, procedures, and programs within the Department to implement the controlled unclassified information framework to standardize the use of controlled unclassified markings on, and 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” (emphasis added).

Given these conflicting requirements, I would be much more comfortable with the delineation of a specific exemption from the general public disclosure of CVI in the legislation. In keeping with the information sharing aspects of this legislation (a process that I generally support) there should also be explicit requirements for sharing of CVI information with the local emergency response community and facility personnel.


Modifications to HR 6193


I see nothing in the amended version of HR 6193 that would cause me to change the suggested modifications to this legislation that I noted in my earlier blog. I would like to reiterate those recommendations here.


The modifications to HR 6193 should include:


  • An acknowledgement that CVI information is fundamentally different than intelligence information.
  • DHS should be required to develop a proactive plan for sharing CVI information with local emergency planning and response personnel.
  • High-risk chemical facilities should be required to develop a proactive plan for sharing CVI information with employees and security personnel.
  • The FOAI provisions of Section 210F(d) need to be revised to explicitly limit the types of CVI that may be considered releasable under FOAI requests.


I understand the government’s inclination to secrecy. No one wants to be the person that lets out information that aids a terrorist in the planning and execution of an attack on this country. Once information is publicly released, it can never be contained. With that as a given, it is much easier to error on the side of secrecy. Unfortunately, that inclination is counter productive in the long run and it foster’s an us-vs-them mentality between the government and various activist groups.


Unfortunately, this legislation is making it’s appearance late in the legislative season. The chances of it making its way to the floor of the House and through the Senate during this election shortened session are slim at best.

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