Public advocates enter fray over FOIA

Public interest advocates are gearing up to fight a legislative proposal that would limit the Freedom of Information Act (FOIA) in an effort to protect computer networks from hackers.

Five public interest groups sent a letter last month to the Justice Department criticizing a Clinton administration recommendation that would create a new exemption from FOIA for "critical infrastructure information provided voluntarily by a non-federal source." The groups argue that changes to FOIA are not necessary to secure computer networks, and that the landmark 1974 law should not be changed because of pressure from business.

Although Reps. Tom Davis, R-Va., and James Moran, D-Va., said this week that they intend to introduce such legislation in the House, any similar proposals in the Senate would face opposition from Sen. Patrick Leahy, D-VT, ranking member of the Judiciary Committee.

"There are several steps we should be taking to promote Internet security, but weakening FOIA and sunshine-in-government laws should not be one of them," Leahy said, citing several of the same points made by the public interest advocates.

"FOIA is a law of central importance to our system of accountable, democratic government," said the letter from the five groups, the Center for Democracy and Technology, the Federation of American Scientists, the National Security Archive, the Center for National Security Studies, and OMB Watch. "It should not be subject to carve-outs for special interests or special categories of information."

Businesses have been reluctant to cooperate with government computer protection efforts because of fear that any information given to federal agencies would be subject to FOIA, which allows the public access to government information. Following a White House summit last week on cyber security, Information Technology Association of America President Harris Miller singled out the FOIA as the top legislative change necessary to secure industry's cooperation with the administration's critical infrastructure protection plan.

But the public interest groups argue that FOIA already provides exemptions for national defense, trade secrets and proprietary information, and law enforcement action. In a letter to Justice Department senior counsel Stevan Mitchell, they noted that "your proposal would go beyond these exemptions by removing from the purview of FOIA a broad new category of information, loosely defined as 'voluntary submitted critical infrastructure information.'"

"The bill would essentially delegate to private sector companies the ability to decide what information in government files gets made public," the five groups said in their letter. "Once a company submits a document marked with the magic words prescribed by the bill, government are deprived of any authority to make that information public, even if they conclude that it is not sensitive, or moreover, even if they conclude the that critical infrastructure interests of the government would be served by making the information public."

Mitchell stressed that the administration's efforts were merely a "discussion draft" that has not received administrative clearance.

"The idea is to create a protected pipeline so that industry can contribute information that they don't currently contribute," he said. "It doesn't seek to carve out anything from the federal government rules."

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