Critics Claim New Legislation Could Subvert Right-to-Know Laws

Critics question how new national security measures could impact reporting to federal agencies like EPA and OSHA.

As the Bush Administration and Congress move to protect national security, many Americans are wondering if laws created to inform and protect the public will get trampled in the process.

One of the new proposed laws to come under scrutiny is the Critical Infrastructure Information Act of 2001, sponsored by Sens. Robert Bennett (R-Utah) and Jon Kyl (R-Ariz.). The legislation requires the federal government to keep confidential any information that industry "voluntarily" provides to the government.

"With more than 85 percent of critical infrastructure entities owned and operated by the private sector, voluntarily shared information leads to a more focused understanding of threats and empowers government, industry and private citizens to mitigate risk," said Bennett when he introduced the bill in the Senate. "Ultimately, this bill will help assure the reliable delivery of services critical to the nation''s economy and security."

Critical infrastructure includes key sectors such as financial services, telecommunications, transportation, energy, emergency services, and government essential services whose disruption or destruction would greatly impact the economy and national security. According to Bennett, the rapid development of technology and its interconnectivity have made it easier to attack critical U.S. infrastructures with physical or computer based attacks than at any other time in history.

The intent of the bill is to keep certain kinds of information out of terrorists'' hands by securing information that companies share voluntarily. In theory, the purpose of the legislation is to encourage corporations to share information that would help protect the United States from terrorist attacks, particularly against computer systems. It would bar the federal government from disclosing the information without obtaining written consent from the submitting company.

According to Bennett, the bill allows a critical infrastructure entity - a chemical company, for example - to voluntarily submit sensitive information, which would normally not be shared, to one of 13 designated federal agencies (including the Environmental Protection Agency and the Occupational Safety and Health Administration) and request information be protected. Doing so means that specific information shared with a federal agency for analysis, warning or interdependency study will not be disclosed in response to a request under the Freedom of Information Act (FOIA).

Some critics claim the bill could undermine certain current environmental and occupational laws. In one example cited by critics of the bill, a company could do an internal audit of its compliance with occupational, environmental, civil rights or tax laws, discover numerous violations, write them up in a report, and hand it over to the Homeland Security Office. The regulatory agencies could not pursue the violations, no matter how egregious, because they could not disclose the information in court in a civil action without the company''s consent.

In extreme cases, the legislation could stop federal officials from warning local communities about acutely toxic releases voluntarily disclosed by companies, making the public less safe, not more.

According to the National Resources Defense Fund, the Bennett-Kyle bill "would give the manufacturing sector unprecedented immunity from the civil consequences of violating the nation''s environmental, tax, fair trade, civil rights, labor, consumer protection, and health and safety laws. Simply by declaring that they are submitting information ''voluntarily,'' companies would be entitled to invoke a prohibition on federal government disclosure of information, even to a court in a civil enforcement action."

Bennett and Kyl could offer the bill as an amendment to bioterrorism legislation that the Senate is expected to consider as early as this week.

by Sandy Smith ([email protected])

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