At a time when the public and elected officials alike are clamoring for more disclosure and accountability in the corporate world, a little-noted provision in legislation establishing a Department of Homeland Security could make corporate dealings even more obscure and less accountable.
Despite criticism from members of Congress and public-interest and press groups, the administration is insisting on "information-sharing" language for the legislation that would allow the new department to exempt businesses from the legal requirements of the Freedom of Information Act when voluntarily submitting "critical infrastructure information" to the department.
The FOIA exemption, pushed by the technology industry, utilities, financial services firms, manufacturers and others, also would free businesses from the disclosure requirements of local and state laws -and grant them immunity from civil liability for violations of securities, tax, civil rights, environmental, labor, consumer protection, health and safety laws that might be revealed in the information they provide.
More importantly, it would deny to the public crucial information about hazardous materials, chemical releases, toxic spills and other threats to health and safety - as well as vulnerabilities to terrorism and sabotage. There would be a real risk that critical infrastructure vulnerabilities would be worse if the public can't access information about how private businesses are running nuclear and chemical plants, refineries, water systems and other facilities located in thousands of neighborhoods across the land.
In other words, this exemption would not be your ordinary loophole but rather a standing invitation for companies with something to hide to label incriminating material as "critical infrastructure information" and put it beyond the reach of the public, the press, the Congress and the courts.
In a letter to members of Congress, 10 press organizations warned that such an exemption "is ripe for misuse and abuse" and that "the public's interest is hardly served by such secrecy."
There is a long list of reasons why writing this exemption into the homeland security legislation is no way for the government to do business.
First among them is the fact that such an exemption is unnecessary, as administration officials have conceded. The FOIA already exempts from disclosure real national security information as well as trade secrets and confidential business information. Further, the courts are consistently deferential to such claims.
Massive amounts of government information already have been withdrawn from the public and press in the last few months. Proposals for even more denial of access, especially if the rationale advanced is for national security, should be looked at closely. For example, the current proposal is very similar to legislation to exempt critical infrastructure information introduced in Congress long before Sept. 11 and the war on terrorism.
The federal government has been granted expanded authority to wiretap telephones, eavesdrop on e-mail traffic, monitor Web site visits, mine private databases and check up on the reading habits of American citizens. In addition, the Justice Department has proposed a citizen informant project in which a million letter carriers, meter readers, cable installers and others who routinely enter our homes would be trained to spot and report "suspicious" activity.
Ironically, while private citizens are being told to be content with less privacy and access, private businesses are being offered greater privacy and less accountability. This generous gesture toward the private sector comes in the wake of a series of unsettling revelations about corporate abuses that have cost the economy and millions of Americans dearly. Granting private businesses more secrecy and immunity could cost our security dearly.
Certainly, there are secrets that must be kept - information that would indeed harm the U.S. and help its enemies if disclosed. But truly dangerous information already is protected from disclosure.
Without access to the kind of information that would be exempted in this proposal, there is no accountability for mistakes and misdeeds, no public pressure to address critical infrastructure vulnerabilities, and no informed discourse on policies that impact dramatically on public life.
That means that critical vulnerabilities would not be identified, the solutions proposed would not be known, and any efforts to fix them would go unchecked.
If Congress approves this exemption, it will have abdicated its oversight responsibilities and embraced the idea that the private sector must be given a pass on compliance with access laws to encourage it do its part in the war on terrorism. More importantly, it will have diminished the role of American citizens as full partners in the democratic process.
McMasters is the First Amendment Ombudsman at the Freedom Forum's First
Amendment Center: http://www.FreedomForum.org