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Foia liberties security Original Source Link: (May no longer be active)
http://www.seacoastonline.com/news/11212002/news/36398.htmhttp://www.seacoastonline.com/news/11212002/news/36398.htm
Security bill is seen as threat to freedom
By Shawn Macomber
news@seacoastonline.com
PORTSMOUTH - Civil libertarians are saying the protections offered by the Freedom of Information Act may be in jeopardy with the passage of the new Homeland Security bill.
By a vote of 90-9 on Tuesday, the U.S. Senate overwhelmingly approved the bill to create a new federal department, which the House had already passed. It will likely be signed into law before the weekend.
"The wording is incredibly vague, and I see real problems on the horizon," said Robert Leger, president of the Society of Professional Journalists.
The final bill weighed in at 484 pages, a massive increase from its original 38 pages. Since the Senate passed the bill only two days after receiving it, many groups are concerned that certain of its provisions weren’t examined closely enough - specifically, a rewording of allowable exemptions from the Freedom of Information Act.
Under the new law, voluntarily submitted "critical infrastructure information" may be restricted from public access. The original language in the Senate compromise last summer was more direct, limiting exemptions from the FOIA to "records pertaining to the vulnerability of and threats to critical infrastructure."
But this week, in the wake of the Nov. 5 election victories by the GOP, the language was changed back to the broader terms preferred by the Bush administration.
In a prepared statement, Sen. Judd Gregg, R-N.H., said he believed the bill’s language was appropriate.
"I strongly support making as much information as possible available to the public without compromising the effectiveness of our war on terror," the statement read. "I believe the language in the Homeland Defense bill last evening is a reasonable compromise and accomplishes an important balance between sensitive information and keeping our government accountable to the citizens of the United States."
Others, however, outside the political arena, have expressed discomfort with the particular balance struck in the bill.
"This gives any company or agency predisposed to hiding things the perfect way to do it," Leger said. "All they have to do is submit anything embarrassing to the Department of Homeland Security, and suddenly it’s not publicly available any more.
"Hiding a chemical spill could technically become a matter of national security," he continued.
In addition, the new bill criminalizes the disclosure of "critical infrastructure information." Again, Leger said he felt the definition of "information" was too broad.
"Imagine if someone in a company comes across something worrisome that has already been voluntarily reported to the new Department of Homeland Security," Leger said. "That person is less likely to come forward if it means the possibility of jail time. Sometimes there needs to be a whistleblower. Does that make us any safer?"
This is not to say, however, that Leger would prefer total disclosure.
"Obviously, there are issues of safety for our troops and reasons to withhold some sensitive material," Leger said. "But this bill sacrifices, in the name of homeland security, the long-standing American principle of open government."
The new law also includes a provision that trumps the N.H. Right to Know laws. But according to Claire Ebel, executive director of the New Hampshire chapter of the American Civil Liberties Union, "That is just not true.
"To say federal law trumps state law is to say, ‘Sue me,’" said Ebel. "You’ll see litigation in counties all across this country. The federal government may like people to believe they can’t be challenged, but just because the feds say it, doesn’t make it so. This will not happen in New Hampshire without a fight."
Ebel said the majority of information requests in New Hampshire already are made at the state level, where the laws permit a more open flow of information from government.
"If the federal government denies a request for information under this law, a New Hampshire citizen can go to New Hampshire Superior Court," Ebel said. "Then it isn’t a federal issue; it’s in a New Hampshire judge’s hands, and I’d put my money on New Hampshire judges making the right decision."
Ebel pointed to the work of N.H. state Rep. Neal Kurk, who has "fought government intrusion into our lives at every level," she said.
Ebel’s confidence in the state’s guarantee of the "right to know" doesn’t mean the ACLU is thrilled about the new laws, she said. The national ACLU may look at challenging the law, and, while New Hampshire statutes offer a means to fight the new laws, the effort and cost of litigation will make getting information harder and more expensive.
"This bill is absolutely a huge problem," said Ebel. "I’m not telling people not to be concerned. I’m saying don’t give up. The battle isn’t over simply because the Congress passed a bill. The battle has just begun.
"I get Right to Know complaints every week," Ebel added. "That’s not something that’s going away. People are willing to fight to get the information they know they have a right to."
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