Leahy: Government Transparency Will Take a Step Back Under Cyber Bill

Urges Senators to Defeat Bad FOIA Provisions Considered In Secret

WASHINGTON (Monday, October 26, 2015) – The cybersecurity legislation pending on the Senate floor includes an unnecessary provision that would weaken the Freedom of Information Act (FOIA), the government’s premier transparency law.  Senator Patrick Leahy (D-Vt.), a champion of government transparency, is calling on all Senators to support his amendment to remove this provision and to support the overall mission of FOIA.

“For nearly half a century, FOIA has translated our great American values of openness and accountability into practice by guaranteeing access to government information.  We should not be passing legislation that weakens this critical law.  Instead, those Senators who talk about their pro-transparency records should support my amendment to strike the harmful FOIA provisions in the cybersecurity bill, and we should be working together to pass the bipartisan FOIA Improvement Act that the Judiciary Committee approved months ago,” Leahy said.

Leahy’s amendment, which is supported by 27 groups that advocate for government transparency, would strike a completely unnecessary FOIA exemption for information that is already protected from disclosure under existing FOIA law.  Leahy successfully led a similar effort earlier this year during Senate consideration of the surface transportation bill, which included several unnecessary FOIA carve outs that were ultimately removed.

Not only is the carve out in the cyber bill unnecessary, it was not considered in the Judiciary Committee which has primary jurisdiction over FOIA.  Instead, it was considered in a closed markup of the Senate Intelligence Committee.  Leahy noted that changes to FOIA “should not be enacted without full and careful consideration by the Judiciary Committee.”

“The Senate must have an open and honest debate about the Senate Intelligence Committee’s bill and its implications for Americans’ privacy and government transparency,” Leahy added.  “Legislation of this importance should not be hastily pushed through the Senate, without a full and fair opportunity for Senators to consider the ramifications of this bill.  Unfortunately, by moving so quickly to end debate, it appears that the Majority Leader is trying to do just that.”  


Leahy Amendment

Protecting the Freedom of Information Act (FOIA)

The Cybersecurity Information Sharing Act (“CISA”) contains an overly broad new FOIA exemption that is both unnecessary and harmful.   Everyone agrees that the vast majority of the sensitive information likely to be shared under CISA should not be disclosed, but this information is already protected from disclosure under existing FOIA exemptions and by other provisions in the bill.  Creating new, unnecessarily broad, and completely useless exemptions only weakens the existing FOIA framework and threatens the twin goals of promoting government transparency and accountability.  The Leahy Amendment strikes the so-called “b(3) exemption” from the bill.    

  • Cyber threat indicators and defensive measures are already protected from disclosure under a separate provision of the bill.  The bill states that cyber threat indicators and defensive measures provided to the Federal Government “shall be considered the commercial, financial, and proprietary information” of the entity submitting the information.  Additionally, commercial and financial information is already exempt from disclosure under FOIA.  
  • Existing FOIA exemptions provide additional strong protections for sensitive information shared pursuant to this bill.  Most, if not all, of the sensitive information likely to be shared through CISA is already protected from disclosure under existing FOIA exemptions.  This includes exemptions for trade secrets, confidential business and financial information, personal privacy, and law enforcement needs (including exemptions to protect ongoing investigations and information that could be used to circumvent the law).  New ad hoc exemptions undermine the systematic protections in FOIA.       
  • Preemption of state and local law is overly broad and dangerous.  As drafted, the new exemption applies not only to FOIA, but to all state, local, or tribal disclosure laws.  Such broad preemption, which has not received careful consideration, could potentially impact hundreds of state and local regulations and lead to unintended consequences. 
  • FOIA is our nation’s premier transparency law.  Any amendments to this law should be considered by the Senate Judiciary Committee, which has exclusive jurisdiction – not in closed session by the Senate Intelligence Committee.  New exemptions to FOIA should be enacted only after full, fair and public consideration by the Senate Judiciary Committee, which has exclusive jurisdiction over FOIA.  This provision was debated behind closed doors by the Senate Intelligence Committee without the consultation of the Senate Judiciary Committee.  Allowing this provision to be included in the underlying bill sets a dangerous precedent.   


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