by Society of Environmental Journalists –

http://www.sej.org/foia/index5.htm

The Society of Environmental Journalists, on behalf of its members, signed a letter sent by 75 organizations calling on the Department of Homeland Security to allow public input on procedures for “safeguarding” and sharing a vaguely defined set of information between firefighters, police officers, public health researchers, and federal, state and local governments. Organizations representing journalists, scientists, librarians, environmental groups, privacy advocates, and others sent the letter today to Homeland Security Secretary Tom Ridge.

August 27, 2003

The Honorable Tom Ridge
Secretary
Department of Homeland Security
Washington, DC 20528

Dear Mr. Secretary:

We are writing to urge the Department of Homeland Security to give the public an opportunity to comment on procedures that are being developed that may restrict the public dissemination of “homeland security information,” including information that is “sensitive but unclassified.”

These procedures are being developed to implement the Homeland Security Information Sharing Act (HSISA). The Act was passed into law as Section VIII of the Homeland Security Act of 2002 with the purpose of fostering the sharing of information among federal, state, and local officials about possible terrorism activities.

The public’s ability to remain informed of and participate in the decision-making of government is fundamental to the democratic process. Democracy is undermined whenever openness is compromised. Consistent with these democratic principles, those compromises, when they are made, should be made only when necessary and only after an open process in which the public participates.

Public comment on the procedures implementing the Act is warranted for several reasons. First, the definition of Homeland Security Information (HSI) included in HSISA is so broad that it raises the question whether activities of government officials and the public that have little to do with terrorism could be harmed by these implementing regulations. In particular, Section 892(f)(1) of HSISA defines homeland security information to include information that

(A) relates to the threat of a terrorist activity, (B) relates to the ability to prevent, interdict, or disrupt terrorist activity, (C) would improve the identification or investigation of a suspected terrorist or terrorist organization, or would (D) improve the response to a terrorist act.
What remains unclear until implementing regulations are written and released is whether these procedures would preclude public access to information that community residents, parents, journalists and others in the public currently obtain from or with the assistance of government in order to make their communities safer, inform the public, and for other purposes. Equally unclear is whether these procedures will require government to remove information already publicly available. The public should have an opportunity to address that question in a public notice-and-comment rulemaking and government policymakers should consider those answers in formulating the information sharing procedures.

Second, public comment is warranted because the procedures developed under HSISA could directly affect a large number of people both inside and outside of the federal government. The HSISA would prohibit public disclosure of information subject to agreements between the government and those receiving “sensitive but unclassified” information. One recent analysis estimates that roughly four million people — including public health officials not employed by government at any level — could be asked under the requirements of HSISA to sign formal nondisclosure agreements. Those agreements would be enforceable through civil and criminal sanctions. In addition, the procedures implementing the Act could expand the list of those subject to these agreements even further.

Third, the public has an interest in being informed of new procedures for sharing information that may infringe on the public’s ability to obtain information from government about its activities. Since the procedures that are to be created will directly address the “safeguarding” of information and restrictions on public dissemination of information, the public should have the opportunity to review a draft version of these implementing procedures, analyze their adequacy and potential impact, and make recommendations for improvements, as necessary.

The Homeland Security Information Sharing Act was passed into law with little public review and scrutiny and, thus, the impacts of the procedures that are to be developed to implement the Homeland Security Information Sharing Act are unknown. Since its passage, though, the law has attracted increased attention outside the government. We ask that the Department of Homeland Security provide the public with a period of sufficient length (i.e., 90 days) to review and comment upon a draft version of the procedures before they are finalized.

The Society of Environmental Journalists, PO Box 2492 Jenkintown, PA 19046, (215) 884-8174 Fax: (215) 884-8175, www.sej.org, sej@sej.org

To see the list of endorsers, click on:
http://www.sej.org/foia/index5.htm