Legislative history of 49 U.S.C. Section 114(s)

Title 49, section 114(s) provides:

(s)  Nondisclosure of security activities.

(1)  In general.  Notwithstanding section 552 of title 5, the Under Secretary shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security under authority of the Aviation and Transportation Security Act (Public Law 107-71) or under chapter 449 of this title if the Under Secretary decides that disclosing the information would—

(A) be an unwarranted invasion of personal privacy;

(B) reveal a trade secret or privileged or confidential commercial or financial information; or

(C) be detrimental to the security of transportation.

49 U.S.C. § 114(s).

Section 114(s) was amended to Title 49 of the United States Code in 2002 following legislative approval of House of Representatives Bill No. 5005 (“H.R. 5005”) which enacted the Homeland Security Act of 2002, Public Law 107-296.  The bill was enacted in response to 9/11 and brought about a major reorganization of several federal agencies under the Department of Homeland Security.  More...

The bill was extremely large, and the language that is now section 114(s) was added to the bill shortly before it was passed by the Senate and just a few days before it was signed into law by the President on November 25, 2002.[1]

I.    Legislative history related to H.R. 5005

A review of the materials provided by the legislative history service reveals no discussion or debate regarding the addition of the language that is now Section 114(s) to the H.R. 5005.

There is some general discussion in the minority and dissenting views portion of the Report of the Select Committee on Homeland Security accompanying H.R. 5005 noting concern about the bill’s “provisions relating to the Freedom of Information Act.”  The minority states:

In recognition that there is a need to protect some sensitive information, FOIA already contains exemptions from disclosure for national security information (exemption 1), sensitive law enforcement information (exemption 7), or confidential business information (exemption 4).  New exemptions are not necessary and are a retreat from openness in government.

H.R. Rept. 107-609 at 220.  The minority then describes the provisions of the bill it views as problematic, and those portions do not appear to include the addition of 49 U.S.C. § 114(s) (or the amendments to 49 U.S.C. 40119, described below).  Rather, it focuses on section 214 of the Act, which provides for the protection of “voluntarily shared critical infrastructure information,” and the preemption of state disclosure laws:

H.R. 5005 . . . would broaden the FOIA exemption, defining “critical infrastructure” in such broad terms that it would even cover corporations seeking liability protection.  For example, an energy company could hide from the public information about a leak at its nuclear power plant simply by submitting information, unsolicited, to the DHS.

H.R. 5005 would also preempt state disclosure laws . . .

The United States has a strong tradition of open and accountable government.  This provision would threaten that tradition and needlessly curtail the public’s right to health and safety information.  It should be removed from the bill.

Id

            Contemporaneous articles in the Congressional Quarterly Weekly recorded Democrats’ concerns over the exemption from FOIA of “critical infrastructure information” as well as more general concerns about proposed exemptions from a number of good government rules, including FOIA and the Federal Advisory Committee Act, which requires open meetings of outside advisory groups.  See, e.g., Adriel Bettelheim, Homeland Security’s Big Hurdle:  Ceding Power to the White House, Congressional Quarterly Weekly, July 27, 2002; Adriel Bettelheim, Homeland Security Department Adrift in Appropriations Doldrums, Congressional Quarterly Weekly, October 12, 2002.

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