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FOIA Officers Conference Held on Homeland Security

The safeguarding and protection of homeland security-related information, a subject of growing importance within all levels of government, was the subject of a FOIA Officers Conference conducted by the Office of Information and Privacy this past week.

On June 25, OIP gathered the principal administrative FOIA officers of all federal departments and agencies that are subject to the Freedom of Information Act for a wide-ranging review of FOIA-related issues, policies, and legal authorities pertaining to matters of homeland security that have arisen since September 11, 2001. Special focus was placed on the role of the new Department of Homeland Security (DHS), and its potential interrelations with other federal agencies, in activities that pertain either directly or indirectly to the administration of the FOIA. A discussion of recently decided FOIA cases addressing homeland security concerns was included as well.

The conference was conducted by OIP Co-Directors Dick Huff and Dan Metcalfe, together with William H. Leary of the staff of the National Security Council. Leary, who serves as Special Advisor to the Assistant to the President for National Security Affairs and Senior Director for Records and Access Management at the NSC, and who this past month received a presidential appointment as Chairman of the Information Security Classification Appeals Panel, made a presentation emphasizing the increasing significance of both information sharing and information safeguarding in connection with sensitive homeland security information (commonly referred to as "SHSI").

The topics covered at this FOIA Officers Conference, outlined below for convenient reference purposes, included the following:

The Attorney General's FOIA Memorandum of October 12, 2001, which established an overall FOIA policy emphasis on careful consideration of the interests underlying FOIA exemptions in the processes of FOIA decisionmaking. See FOIA Post, "New Attorney General FOIA Memorandum Issued" (posted 10/15/01). Though this policy memorandum was developed well before the events of September 11, 2001, its issuance highlighted the importance of carefully considering the applicability of FOIA exemptions to information viewed as sensitive through a post-9/11 lens. See id. (OIP guidance emphasizing the availability of Exemption 2 to protect a wide range of information with "heightened sensitivity").

The White House Memorandum on Safeguarding Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security, which was issued by Assistant to the President and Chief of Staff Andrew H. Card, Jr., together with a FOIA memorandum prepared by OIP, on March 19, 2002. See FOIA Post, "Guidance on Homeland Security Information Issued" (posted 3/21/02). As discussed at the conference, these memoranda placed primary emphasis on the safeguarding of information, where appropriate due to its particular sensitivity rather than on the basis of any catch-all label such as "sensitive but unclassified information." Presaging the Homeland Security Act (see below), they also reminded agencies of the availability of Exemption 4 protection for "sensitive critical infrastructure information . . . that is voluntarily submitted to the Government from the private sector." Id.

The new Exemption 3 provision of the Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135, 214 (to be codified at 6 U.S.C. 133), which protects "critical infrastructure information . . . that is voluntarily submitted" to the federal government for homeland security purposes. See FOIA Post, "Homeland Security Law Contains New Exemption 3 Statute" (posted 1/27/03). DHS recently published proposed regulations designed to implement this statutory provision. See "Procedures for Handling Critical Infrastructure Information; Proposed Rule," 68 Fed. Reg. 18,524 (Apr. 15, 2003). As discussed at the conference, it is now anticipated that these regulations will be issued in final form within the next few months and that their final issuance will have an impact on the processes of FOIA administration governmentwide.

The new information safeguarding and sharing provisions of the Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135, 891-93 (to be codified at 6 U.S.C. 481-83). These provisions, enacted under the subtitle of "Homeland Security Information Sharing Act," primarily require executive branch agencies to develop procedures by which they "identify and safeguard homeland security information that is sensitive but unclassified" and also share such information as appropriate for homeland security purposes. Id. 892(a)(1)(A), (B). As discussed at the conference, it is anticipated that this statutory obligation will be the subject of a presidential delegation of authority soon, leading to the development of new safeguarding procedures for sensitive homeland security information (or SHSI), a process that is expected to include public notice and comment.

The recent amendments to the executive order governing the classification of information on national security grounds, Executive Order 12,958, which was amended in both substantive and procedural respects through the issuance of Executive Order 13,292, 68 Fed. Reg. 15,315, on March 25. See FOIA Post, "Executive Order on National Security Classification Amended" (posted 4/11/03). At the conference, a representative of the Information Security Oversight Office (ISOO) advised that ISOO anticipates issuing implementing directives on the new executive order provisions by next month.

The recent amendment to the FOIA restricting its use by foreign government entities and their representatives, which bars requests made to U.S. intelligence agencies by such other-than-U.S. governmental entities either directly or through a representative. See Intelligence Authorization Act for Fiscal Year 2003, Pub. L. No. 107-306, 116 Stat. 2383, 312 (codified at 5 U.S.C. 552(a)(3)(A), (E) (2000 & Supp. I 2003)). While the only agencies affected by it are those that are part of, or contain "an element of," the "intelligence community," 5 U.S.C. 552(a)(3)(E), this amendment for the first time cuts back on the FOIA's broad "any person" gateway to government information availability. See FOIA Post, "FOIA Amended by Intelligence Authorization Act" (posted 12/23/02).

Coastal Delivery Corp. v. United States Customs Serv., No. 02-3838 (C.D. Cal. Mar. 17, 2003), reconsideration denied (C.D. Cal. June 13, 2003) (appeal pending), which was the first FOIA decision to address the protection of information withheld by an agency due to post-9/11 terrorism concerns. The court ruled that the Customs Service properly protected the number of Customs Service examinations conducted at the Los Angeles/Long Beach seaport for each of five recent years, under the "high 2" aspect of Exemption 2, "because terrorists . . . could use the information to discover the rate of inspection and then direct their containers to vulnerable ports." This information was found properly withheld under Exemption 7(E) as well. See FOIA Post, "New FOIA Decisions, January-March 2003" (posted 4/2/03).

Living Rivers, Inc. v. United States Bureau of Reclamation, No. 2:02CV644 (D. Utah Mar. 25, 2003), in which the court ruled that "inundation maps" showing various potential flood areas below Hoover Dam and Glen Canyon Dam were compiled as law enforcement records, and were properly withheld under Exemption 7(F) of the FOIA, because their disclosure "could aid in carrying out a terrorist attack" on those dams and thus "could reasonably place at risk the li[ves] or physical safety" of area residents. In issuing this ruling, which stands unappealed, the court reasoned that these maps qualified as law enforcement records in satisfaction of Exemption 7's threshold requirement because they were compiled "in direct relation to" a governmental law enforcement function. See FOIA Post, "New FOIA Decisions, January-March 2003" (posted 4/2/03).

Ctr. for Nat'l Sec. Studies v. United States Dep't of Justice, 331 F.3d 918 (D.C. Cir. 2003), an appellate court decision upholding nondisclosure of the identities of immigration detainees taken into custody in the government's post-9/11 terrorist investigation under Exemption 7(A), based upon a finding that disclosure "would give terrorist organizations a composite picture of the government investigation" and thus enable them to impede it through "counter-efforts." Notably, the D.C. Circuit Court of Appeals in this case declared that it could not "conceive of any reason to limit deference to the executive in its area of expertise to certain FOIA exemptions [i.e., Exemptions 1 and 3] so long as the government's declarations raise legitimate concerns that disclosure would impair national security." See also FOIA Post, "New FOIA Decisions, April-June 2003" (posted 7/1/03).

This was the third FOIA Officers Conference held during the past two years and the fifteenth such governmentwide gathering of agency FOIA personnel, including OIP's biennial FOIA Guide Seminars, that has been held in the past decade.   (posted 7/3/03)

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