Legislative Update on Homeland Security Act

As Congress wrestles to move along legislation to establish a Department of Homeland Security, the House and the Senate are taking significantly different approaches to information provisions for the new Department.The House recently passed a Homeland Security Act that contained broad restrictive information provisions. The final provisions included a broad new Freedom of Information Act (FOIA) exemption for information voluntarily submitted to the new Department with extremely vague definitions. The provisions go even further, granting corporations unprecedented immunity from the civil consequences of violating the nation’s securities, tax, civil rights, environmental, labor, consumer protection, and health & safety laws. These provisions would essentially tie the government’s hands, and potentially those of third parties as well, in holding corporations accountable for wrongdoing. The House information proposals would also preempt all state and local open records laws. State and local authorities would be barred from disclosing information that is required to be public under state or local law if it is withheld at the federal level.

These information provisions did go easily into the Homeland Security Act. Amendments were offered to strip out the FOIA restriction and other information provisions both while the bill was being considered by the Select Committee on Homeland Security, and while on the House floor. The House Select Committee defeated the amendment to remove the FOIA exemption section offered by Rep. Rosa DeLauro (D-CT) in a party line vote of 4-5, with all of the Republicans voting to keep the exemption, and all of the Democrats voting to remove it. While debating the Homeland Security Act on the House floor Rep. Janice Schakowski (D-IL) offered another amendment to strip out the restrictive information provisions. The amendment was defeated in a highly partisan vote of 188 in favor and 240 against.

These provisions, advanced and supported by the Bush administration, have numerous similarities to those originally presented in The Critical Infrastructure Information Act (S. 1456), recently pushed by Sens. Robert Bennett (R-UT) and Jon Kyl (R-AZ).

However, even though many of these restrictive information policies have their origins in the Senate they have taken a significantly narrower approach during the recent debate. The Senate Government Affairs Committee, chaired by Senator Lieberman (D-CT), began differently by considering his bill for establishing a Department of Homeland Security rather than legislation based on the administration’s proposals. Sen. Lieberman’s National Homeland Security and Combating Terrorism Act of 2002 (S. 2452) differs strongly from the President’s proposal and did not include any restrictive information provision or FOIA exemptions. Several amendments addressing FIOA exemptions and information were filed but eventually a compromise amendment emerged sponsored by Sens. Levin (D-MI) and Bennett (R-UT). The compromise amendment narrowly defined the information that was exempt from FOIA to be only documents submitted to the new Department that addresses vulnerabilities and which no government agencies have the authority to request from companies. The information provision did not contain any liability immunity, preemption of state or local disclosure laws, or criminalization of disclosure.

The Senate bill still faces additional markups and debate on the Senate floor, where any variation of the house information provisions may be proposed. Additionally, after the Senate passes its Homeland Security bill it must be conferenced with the House version. Bennett's continued support for the compromise FOIA language he co-sponsored in the Government Affairs Committee will be critical as the bill moves to the floor and into conference. If the Senate language retains its strong bipartisan support then it should be heavily favored over the contentious House language in the final bill.