Blog Post
FOIA Post (2003): Homeland Security Law Contains New Exemption 3 Statute
Homeland Security
Law Contains New Exemption 3 Statute
The law passed
by Congress this past fall to establish the new Department of Homeland Security
(DHS) -- the Homeland Security Act of 2002, Public Law 107-296 -- includes a
provision that will operate as a new "Exemption 3 statute" under the Freedom
of Information Act, 5 U.S.C. § 552(b)(3) (2000), for "critical infrastructure"
information that is obtained by that new federal department.
Subtitle B of the
Homeland Security Act, entitled "Critical Infrastructure Information," consists
of a group of provisions that address the circumstances under which the federal
government obtains and maintains such information. Section 214 of the Act, which
is entitled "Protection of Voluntarily Shared Critical Infrastructure Information,"
contains the new Exemption 3 statute. It states as follows:
Notwithstanding
any other provision of law, critical infrastructure information (including
the identity of the submitting person or entity) that is voluntarily submitted
to a covered Federal agency for use by that agency regarding the security
of critical infrastructure and protected systems, analysis, warning, interdependency
study, recovery, reconstitution, or other informational purpose, when accompanied
by an express statement [as specified below]
(A) shall
be exempt from disclosure under section 552 of title 5, United States
Code (commonly referred to as the Freedom of Information Act)[.]
Pub. L. No. 107-296,
116 Stat. 2135, § 214(a)(1)(A)
(to be codified at 6 U.S.C. § 133(a)(1)(A)).
In connection with
this provision, the new law includes an extensive definition of the term "critical
infrastructure information," see id. at § 212(3)(A)-(C), and it specifies
the types of "express statements" by information submitters that are required
to trigger the provision, see id. at § 214(a)(2)(A)-(B), which are
not unlike the marking requirements for the submission of business information
that are set forth in Executive Order 12,600 in conjunction with Exemption 4.
See FOIA
Update, Vol. VIII, No. 2, at 2-3. Section 212 of the Act also specifies
that "[t]he term 'covered Federal agency' means the Department of Homeland Security."
Pub. L. No. 107-296, 116 Stat. 2135, § 212(2);see also id. at
§ 214(c)
(adding that the provision does not apply to "independently obtained information").
Thus, this Exemption
3 statute provides new protection under the FOIA for information pertaining
to the nation's critical infrastructure that is voluntarily submitted to the
new Department of Homeland Security. It is in a statutory form that is a "growing
trend," in that it directly refers to the FOIA and thus is "specifically focused
on the prohibition of disclosure under the FOIA" in particular. Freedom
of Information Act Guide & Privacy Act Overview (May 2002), at
156-57 (discussing "this more narrow legislative approach to nondisclosure").
Significantly,
this legislation also explicitly contemplates the need to ensure consistent,
continued protection of all such information even if it is shared with a state
or local government in the course of DHS's activities. To cover that circumstance,
the Act specifically mandates that the critical infrastructure information now
exempt under the FOIA "shall not, if provided to a State or local government
. . . be made available pursuant to any State or local law requiring disclosure
of information or records." Pub. L. No. 107-296, 116 Stat. 2135, § 214(a)(1)(E)(i);see also id. at § 214(a)(1)(F) (guarding against "waiver of any applicable
privilege or protection provided under law"). This statute thus explicitly provides
for the "preemption" of state freedom of information laws by federal law with
respect to any question of whether there should be public disclosure of such
information. See also Freedom
of Information Act Guide & Privacy Act Overview (May 2002), at
563-64 (discussing operation of "preemption doctrine" in FOIA context).
Congress's enactment
of this Exemption 3 statute was somewhat controversial in that a more limited
version of it was developed in the Senate but was not considered by the full
Senate, or the House of Representatives, when Congress reconvened for its extraordinary
"lame duck" session in November and enacted the Homeland Security Act on an
accelerated schedule. The Act was approved by the House and the Senate in rapid
succession, as Congress moved quickly to ensure enactment, with relatively little
focus on its FOIA-related provisions. It also contains an additional provision
that makes it a criminal offense for any federal employee to "knowingly . .
. disclose[] . . . any critical infrastructure information [that is] protected
from disclosure" under it, without proper legal authorization. Pub. L. No. 107-296,
116 Stat. 2135, § 214(f). In this respect, it is akin to the Privacy Act of
1974, 5 U.S.C. § 552a (2000), and the Trade Secrets Act, 18 U.S.C. § 1905 (2000).
See Freedom of Information Act Guide & Privacy Act Overview (May
2002), at 754 & nn.13-14, 926
(discussing criminal prohibitions found in Trade Secrets Act and in Privacy
Act subsection (i)(1), respectively).
The new Department
of Homeland Security has now become the fifteenth Cabinet Department of the
federal government, the newest since the Department of Veterans Affairs was
elevated from agency to department status in 1989. As of today, it consists
of the Office of the Secretary and an initial staff of administrative components.
(See DHS Web site at www.dhs.gov.)
Under the timetable established by the Homeland Security Act, existing governmental
organizations of other federal departments and agencies will transfer to DHS
as of March 1. These include the Transportation Security Agency and the Coast
Guard from the Department of Transportation; the Federal Emergency Management
Agency; the Customs Service and the Secret Service from the Department of the
Treasury; and the Immigration and Naturalization Service from the Department
of Justice.
In addition, the
Homeland Security Act also transfers the Bureau of Alcohol, Tobacco and Firearms
from the Department of the Treasury to the Department of Justice, except for
a tax-related portion (approximately 10%) of it that will remain at the Treasury
Department. ATF has been renamed the "Bureau of Alcohol, Tobacco, Firearms,
and Explosives," as a reflection of its current responsibilities in that latter
area, but it likely will continue to be referred to as "ATF." This transfer
is effective as of today as well. (posted 1/27/03)
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