Critical Infrastructure Information Disclosure and Homeland Security
Report for Congress
Critical Infrastructure Information
Disclosure and Homeland Security
Updated January 29, 2003
John D. Moteff
Specialist in Science and Technology Policy
Resources, Science and Industry Division
Gina Marie Stevens
American Law Division
Congressional Research Service ˜ The Library of Congress
Critical Infrastructure Information Disclosure and
Critical infrastructures have been defined as those systems and assets so vital
to the United States that the incapacity of such systems and assets would have a
debilitating impact on the United States. One of the findings of the President’s
Commission on Critical Infrastructure Protection, established by President Clinton
in 1996, was the need for the federal government and owners and operators of the
nation’s critical infrastructures to share information on vulnerabilities and threats.
However, the Commission noted that owners and operators are reluctant to share
confidential business information, and the government is reluctant to share
information that might compromise intelligence sources or investigations. Among
the strategies to promote information sharing was a proposal to exempt critical
infrastructure information from disclosure under the Freedom of Information Act.
The Freedom of Information Act (FOIA) was passed to ensure by citizen access
to government information. Nine categories of information may be exempted from
disclosure. Three of the nine exemptions provide possible protection against the
release of critical infrastructure information: exemption 1 (national security
information); exemption 3 (information exempted by statute); and exemption 4
(confidential business information). Congress has considered several proposals to
exempt critical infrastructure information from FOIA. Generally, the legislation has
created an exemption 3 statute, or adopted the exemption 4 D.C. Circuit standard.
Prior to passage of the Homeland Security Act (P.L. 107-296), the House (H.R.
5005) and Senate (S. 2452) bills differed significantly on language providing a FOIA
exemption. Differences included the type of information covered and exempted from
FOIA; the scope of the protections provided; the authorized uses or disclosures; the
permissibility of disclosures of related information by other agencies; immunity from
civil liability; preemption; and criminal penalties. The Homeland Security Act (P.L.
107-296, section 214 ) provisions regarding the exemption of critical infrastructure
information from FOIA adopted the House language in its entirety.
Public interest groups question the necessity of a FOIA exemption suggesting
that existing FOIA exemptions provide sufficient protections.. They also argued that
the House language (which passed) was too broad and would allow a wider range of
information to be protected (including information previously available under FOIA).
They favored the more limited protections proposed in the S. 2452. Public interest
groups also expressed concern that the provision which bars use of the protected
information in civil actions would shield owners and operators from liability under
antitrust, tort, tax, civil rights, environmental, labor, consumer protection, and health
and safety laws. Owners and operators of critical infrastructures insisted that current
law did not provide the certainty of protection needed. While they viewed the Senate
language as a workable compromise, they favored the protections in H.R. 5005.
Compelling arguments existed on both sides of the debate for and against exempting
critical infrastructure information from the Freedom of Information Act. S. 6
introduced in the 108th Congress, resurrects S. 2452 (107th Congress). This report
will be updated as warranted.
Introduction and Background.........................................1
Freedom of Information Act.........................................4
FOIA Exemption 1 – National Security Information...................5
FOIA Exemption 3 – Information Exempt by Statute..................7
FOIA Exemption 4 – Confidential Business Information...............8
FOIA Exemption in the Administration’s Initial Proposal for
Homeland Security .......................................11
FOIA Exemptions in Homeland Security Proposals..................11
Issues and Concerns...........................................15
The authors wish to thank Morton Rosenberg and Linda-Jo Schierow of the Congressional
Research Service for their contributions to this report.
Critical Infrastructure Information Disclosure
and Homeland Security
Introduction and Background
Leading up to the passage of the Homeland Security Act of 2002 (P.L. 107-296),
a debate ensued regarding the exemption of critical infrastructure information from
the Freedom of Information Act, 5 U.S.C. § 552. Both the House and Senate
versions of the Homeland Security Act (H.R. 5005 and S. 2452, respectively)
contained language exempting such information, but the two versions were
significantly different. Final passage of the Act included the House language
(sections 211 - 215 of P.L. 107-296). This report discusses the differences in
language and some of the arguments and concerns expressed by both supporters and
critics of the exemption.
Certain socio-economic activities are vital to the day-to-day functioning and
security of the country; for example, transportation of goods and people,
communications, banking and finance, and the supply of electricity and water. These
activities and services have been referred to as components of the nation’s critical
infrastructure. Domestic security and our ability to monitor, deter, and respond to
outside hostile acts also depend on some of these activities as well as other more
specialized activities like intelligence gathering, law enforcement, and military
forces. Serious disruption in these activities and capabilities could have a major
impact on the country’s well-being.
In July 1996, President Clinton established the President’s Commission on
Critical Infrastructure Protection (PCCIP).1 The Commission was tasked with
assessing the vulnerabilities of the country’s critical infrastructures and proposing a
strategy for protecting them. In its final 1997 report,2 the Commission stated that the
“...two-way sharing [of] information is indispensable to infrastructure assurance,”
and that “increasing the sharing of strategic information within each infrastructure,
across different sectors, and between sectors and the government will greatly assist
efforts of owners and operators to identify their vulnerabilities and acquire tools
needed for protection.” According to the Commission, the exchange of information
is also necessary to develop an analytic capability to examine information about
incidents, vulnerabilities, and other intelligence information to determine whether
events are related and can be used possibly to recognize or predict an attack.
1 Executive Order 13010—Critical Infrastructure Protection. Federal Register, July 17,
2 Critical Foundations: Protecting America’s Infrastructures. The Report of the President’s
Commission on Critical Infrastructure Protection. Washington, D.C. October, 1997.
The Commission also noted that there is a reluctance on the part of the private
sector and the government to share information related to vulnerabilities or incidents
needed to plan for and effect adequate protections. The private sector is reluctant to
submit information to the government related to vulnerabilities or incidents that
might damage its reputation, weaken its competitive position, lead to costly
investigations, be used inappropriately, or expose it to liability as a result of
disclosure by the government of confidential business information. The government
is reluctant to disclose threat information that might compromise intelligence
activities or investigations.
The first objective of the Commission’s recommended Strategy for Action was
to promote a partnership between government and infrastructure owners and
operators that would increase the sharing of information relating to infrastructure
threats, vulnerabilities, and interdependencies. The Commission proposed
developing an Information Sharing and Analysis Center (ISAC) that would consist
of government and private sector representatives working together to receive
information from all sources, analyze it, draw conclusions about vulnerabilities or
incidents within the infrastructures, and inform government and private sector users.
It also recognized that, in order to facilitate the exchange of information, the private
sector would need assurances that its confidential information would be protected.
The Commission noted that this might require that a legal vehicle be established
within the critical infrastructure information sharing mechanism that would protect
confidential information, and examined the ramifications of different approaches and
strategies related to the federal government’s protection of private sector information.
It briefly discussed some pros and cons associated with the creation of a FOIA
exemption 3 statute for critical infrastructure information. Under exemption 3 of the
Freedom of Information Act (FOIA), 5 U.S.C. 552, information protected from
disclosure under other statutes is also exempt from public disclosure under FOIA.3
In response to the Commission’s report, President Clinton released Presidential
Decision Directive No. 63 (PDD-63).4 The Directive instructed the National
Coordinator for Security, Infrastructure Protection and Counter-Terrorism and other
government officials to consult with private sector owners and operators of critical
infrastructures, and encourage the creation of a private sector information analysis
and sharing center as envisaged by the PCCIP. Although the Directive did not
address FOIA explicitly, it did direct the National Coordinator to undertake studies
to examine: liability issues arising from participation by private sector companies in
the information sharing process; existing legislative impediments to information
sharing with an eye toward removing those impediments; and the improved
protection, including secure dissemination of industry trade secrets, of other
confidential business data, law enforcement information and evidentiary material,
classified national security information, unclassified material disclosing
3 Exemption 3 exempts from disclosure information specifically exempted by statute, as
long as the statute leaves no discretion on disclosure and that the statute specifies particular
criteria for withholding or refers to particular types of matters to be withheld. 5 U.S.C. §
4 The White House, Protecting America’s Critical Infrastructures: Presidential Decision
Directive 63 (May 1998). Available at [http://www.ciao.gov/resource/paper598.pdf].
vulnerabilities of privately owned infrastructures and apparently innocuous
information that, in the aggregate, would be imprudent to disclose. The Clinton
Administration, however, never adopted a formal position on the desirability of an
exemption to FOIA or the necessity for any additional confidentiality protections.
In connection with the implementation of PDD-63, a number of industrial
sectors which own and/or operate critical infrastructures formed ISACs, and entered
into arrangements with the federal government to share information. However, the
General Accounting Office reported in April 2001, that very little or no formalized
flow of information has occurred from the private sector to the federal government.5
According to the Director of the National Infrastructure Protection Center, the
organization with which industry is to share information, one of the reasons for this
is the uncertainty regarding FOIA exemptions.6 Similarly, the Partnership for Critical
Infrastructure Security, a cross-industry group formed to facilitate communication
among industry sectors, has stated that it is not clear that any of the existing FOIA
exemptions provide the certainty of protection that many companies require before
disclosing threat and vulnerability information to the government.7
In the 106th Congress, both H.R. 4246 (Davis/Moran) and S. 3188 (Kyl)
included an exemption from FOIA for cyber security information voluntarily
provided to the federal government, and prohibited the information from being used,
by either the federal government or a third party, in any civil action.8 Neither bill was
reported out of committee.
During the 107th Congress, two bills were introduced with many of the same
provisions: H.R. 2435 (Davis) and S. 1456 (Bennett/Kyl) would have exempted
information voluntarily submitted to the federal government in connection with
critical infrastructure protection from FOIA,9 and provided protection against civil
action. Both bills remained in committee. In an effort to reconcile the two bills, S.
was never introduced. The Bush Administration offered qualified support for both
5 Critical Infrastructure Protection. Significant Challenges in Developing National
Capabilities. United States General Accounting Office. GAO-01-323. April 2001. See
6 Id. Appendix 1, p.99. It should be noted that, according to the GAO, another reason the
private sector has not shared information with the government is the lack of agreement on
what type of information is needed.
7 Partnership for Critical Infrastructure Protection. Working Group 3. Public Policy White
Paper. p. 5. Available at [http://www.pcis.org/WG3/WG-3_Public_Policy_WP.pdf].
8 See CRS Report RL30153, Critical Infrastructures: Background and Early
Implementation of PDD-63.
9 The Senate bill expanded the type of information to be protected to include information
related to the physical security of critical infrastructures, referring to protected information
as “critical infrastructure information,” specified the agencies covered by the legislation, and
prescribed how the information may be used.
bills.10 In President Bush’s initial proposal to establish a new Department of
Homeland Security, part of which proposed establishing a critical infrastructure
protection function, a FOIA exemption was included for information held by the
Department. Subsequently, both the House and Senate bills establishing the new
Department (H.R. 5005 and S. 2452, respectively) included more detailed language
exempting critical infrastructure information from FOIA. The House language also
offered more extensive protections: see Legislative Responses, below.
Freedom of Information Act
In 1966, during floor debate on passage of the Freedom of Information Act
(FOIA),11 Representative Rumsfeld quoted James Madison when he said,
Knowledge will forever govern ignorance. And a people who mean to be
their own governors, must arm themselves with the power knowledge
gives. A popular government without popular information or the means12
of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both.
The sentiments expressed by Madison in 1822 are prescient today. The populace
desires knowledge about the activities of its government in order to ensure
accountability and oversight. The government desires information from owners and
operators of critical infrastructures in order to protect persons and assets in the war
on terrorism. The terrorist attacks of September 11 have prompted a reevaluation of
how to balance public access to information with the need for safety and security.
The federal government, since its beginnings, has delegated to agency heads the
basic authority to control the papers and documents of their departments. Through
the Housekeeping Statute of 1789, federal agencies have kept control of the13
disclosure of their files. The Administrative Procedure Act (APA) of 1946 had a
slight impact upon departmental control of agency information.14 Instances were
documented, however, where both the Housekeeping Statute and the Administrative
Procedure Act had been used as excuses for withholding information, and concern
mounted that the APA had become a loophole for agency secrecy permitting agency
heads to exercise broad, unrestrained powers of a discretionary nature. The
Housekeeping Statute was amended to clarify that it does not authorize withholding
10 White House Official Outlines Cyber Security Initiatives. Maureen Sirhal. National
Journal’s Technology Daily. January 25, 2002.
11 5 U.S.C. § 552 et seq.
12 James Madison, 1822, quoted by Rep. Rumsfeld in House debate on passage of Freedom
of Information Act, 114 Cong. Rec. 13, 654 (1966).
13 “The head of an Executive department or military department may prescribe regulations
for the government of his department, the conduct of its employees, the distribution and
performance of its business, and the custody, use, and preservation of its records, papers,
and property. This section does not authorize withholding information from the public or
limiting the availability of records to the public.” 5 U.S.C. § 301.
14 60 Stat. 238.
information from the public or limiting the availability of records to the public. The
amendment of the Housekeeping Statute did not produce the results sought by
advocates of greater public access to public information. The House Government
Information Subcommittee proposed a freedom of information bill that created a right
of any person to use the courts to enforce the right of access to federal information.
Although the proposal was well received by the press, federal agencies were resistant.
The Senate passed S. 1160 in 1965, the House in 1966, and the Freedom of
Information Act (FOIA) was signed into law by President Johnson on July 4, 1966.
The FOIA was subsequently amended in 1974, 1986, and 1996 for several reasons:
ambiguity in the text and legislative history; agency and Department of Justice
resistance to broader disclosure; increased oversight by Congress; court
interpretations of the statute and its procedural requirements and exemptions; time
delays by agencies in responding to requests for access to information and delaying
tactics by agencies in litigation; to clarify the scope of the exemptions in response to
Supreme Court decisions interpreting the Act’s provisions; and to accommodate
technological advances related to the methods prescribed for public access.
The purpose of the Freedom of Information Act (FOIA) was to ensure by statute
citizen access to government information. The FOIA establishes for any
person—corporate or individual, regardless of nationality—presumptive access to
existing, unpublished agency records on any topic. The law specifies nine categories
of information that may be exempted from the rule of disclosure. The exemptions
permit, rather than require, the withholding of the requested information. Records
which are not exempt under one or more of the Act’s nine exemptions must be made
available. If a record has some exempt material, the Act provides that any reasonably
segregable portion of the record must be provided to any person requesting such
record after deletion of the portions which are exempt. Disputes over the
accessibility of requested records may be reviewed in federal court. Fees for search,
review, or copying of materials may be imposed; also, for some types of requesters,
fees may be reduced or waived. The FOIA was amended in 1996 to provide for
public access to information in an electronic form or format. In 2001, agency annual
reports indicated that they received approximately 1.9 million FOIA requests.
With respect to the Freedom of Information Act, three of the nine exemptions
from public disclosure provide possible protections against the release of homeland
security and critical infrastructure information: exemption 1 (national security
information), exemption 3 (information exempted by statute), and exemption 4
(confidential business information).15
FOIA Exemption 1 – National Security Information
Exemption 1 of the FOIA protects from disclosure national security information
concerning the national defense or foreign policy, provided that it has been properly
classified in accordance with the substantive and procedural requirements of an
executive order.16 As of October 14, 1995, the executive order in effect is Executive
15 See 5 U.S.C. § 552(b).
16 5 U.S.C. § 552(b)(1).
Order 12,958 issued by President Clinton ( and amended in 1999 by Executive Order
13,142).17 Section 1.5 of the order specifies the types of information that may be
considered for classification: military plans, weapons systems, or operations; foreign
government information; intelligence activities, sources or methods, or cryptology;
foreign relations or foreign activities, including confidential sources; scientific,
technological, or economic matters relating to national security; U.S. government
programs for safeguarding nuclear materials and facilities; or vulnerabilities or
capabilities of systems, installations, projects, or plans relating to national security.
The categories of information that may be classified seemingly appear broad enough
to include homeland security information concerning critical infrastructures. Under
E.O. 12,958 information may not be classified unless “its disclosure reasonably could
be expected to cause damage to the national security.”18
On March 19, 2002, the White House Chief of Staff issued a directive to the
heads of all federal agencies addressing the need to protect information concerning
weapons of mass destruction and other sensitive homeland security-related
information.19 The implementing guidance for the directive concerns sensitive
homeland security information that is currently classified, and previously unclassified
or declassified information.20 The guidance provides that with respect to such
information currently classified, the classified status of such information should be
maintained in accordance with Executive Order 12,958. This includes extending the
duration of classification as well as exempting such information from automatic
declassification as appropriate. With respect to previously unclassified or
declassified information concerning weapons of mass destruction and other sensitive
homeland security-related information, the implementing guidance provides that, to
the extent it has never been publicly disclosed under proper authority, it may be
classified or reclassified pursuant to Executive Order 12,958. If the information has
been subject to a previous request for access, such as a FOIA request, classification
or reclassification is subject to the special requirements of the executive order.
Section 792 of H.R. 5005, as passed by the House, directed the President to
prescribe and implement procedures applicable to all federal agencies to share
relevant, appropriate homeland security information among federal agencies,
including the Department of Homeland Security, and with appropriate state and local
personnel; to identify and safeguard sensitive, unclassified homeland security
information; to determine whether, how, and to what extent to remove classified
homeland security information, and to determine with whom such homeland security
information should be shared after such classified information is removed. H.R.
17 3 C.F.R. 333 (1996), reprinted in 50 U.S.C. § 435 note.
18 Exec. Order No. 12.958, § 1.2(a)(4).
19 See White House Memorandum for Heads of Executive Departments and Agencies
Concerning Safeguarding Information Regarding Weapons of Mass Destruction and Other
Sensitive Documents Related to Homeland Security (Mar. 19, 2002); reprinted in FOIA Post
20 See Memorandum from Acting Director of Information Security Oversight Office and Co-
Directors of Office of Information and Privacy to Departments and Agencies (March 31,
5005 specifically stated that the substantive requirements for classification are not
changed. S. 2452, agreed to by the Senate Governmental Affairs Committee on July
25, 2002, did not have a parallel provision. The House language prevailed (in
Section 982 of P.L. 107-296).
FOIA Exemption 3 – Information Exempt by Statute
Under exemption 3 of the FOIA, information protected from disclosure under
other statutes is also exempt from public disclosure.21 Exemption 3 provides that the
FOIA does not apply to matters that are:
specifically exempted from disclosure by statute . . . provided that such
statute (A) requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types of matters to be
Exemption 3 allows the withholding of information prohibited from disclosure by
another statute only if the other statute meets any one of the three criteria: (1) it
requires that the records be withheld (i.e., no agency discretion); (2) grants discretion
on whether to withhold but provides specific criteria to guide the exercise of that
discretion; or (3) describes with sufficient specificity the types of records to be
withheld. To support an exemption 3 claim, the information requested must fit
within a category of information that the statute authorizes to be withheld. As with
all FOIA exemptions, the government bears the burden of proving that requested
records are properly withheld. Numerous statutes have been held to qualify as
exemption 3 statutes under the exemption’s first subpart – statutes that require
information to be withheld and leave the agency no discretion. Several statutes have
failed to qualify under exemption 3 because too much discretion was vested in the
agency, or because the statute lacked specificity regarding the records to be
withheld.23 Unlike other FOIA exemptions, if the information requested under FOIA
meets the withholding criteria of exemption 3, the information must be withheld.
Congress has considered a number of proposals that address the disclosure
under FOIA of cyber security information, of information maintained by the
Department of Homeland Security, and of critical infrastructure information
voluntarily submitted to the Department of Homeland Security. Generally, the
legislation has specifically exempted the covered information from disclosure under
FOIA, in effect creating an exemption 3 statute for purposes of FOIA.
21 5 U.S.C. § 552(b)(3).
22 5 U.S.C. § 552(b)(3).
23 See CRS Congressional Distribution Memorandum, American Law Division, Freedom of
Information Act: Statutes Invoked under Exemption 3 by Gina Stevens (July 11, 2002)
FOIA Exemption 4 – Confidential Business Information
Exemption 4 of FOIA exempts from disclosure “trade secrets and commercial
or financial information obtained from a person and privileged or confidential.”24
The latter category of information (commercial information that is privileged or
confidential) is relevant to the issue of the federal government’s protection of private
sector critical infrastructures information. To fall within this second category of
exemption 4, the information must satisfy three criteria. It must be: a) commercial
or financial; b) obtained from a person; and c) confidential or privileged. The D.C.
Circuit has held that the terms “commercial or financial” should be given their
ordinary meaning, and that records are commercial if the submitter has a
“commercial interest” in them.25 The second criteria, “obtained from a person,”
refers to a wide range of entities.26 However, information generated by the federal
government is not “obtained from a person,” and as a result is excluded from
exemption 4's coverage.27
Most exemption 4 cases have involved a dispute over whether the information
was “confidential.” In 1974, the D.C. Circuit in National Parks and Conservation
Association v. Morton, held that the test for confidentiality was an objective one.28
It held that neither the fact that a submitter would not customarily make the
information public, nor an agency’s promises of confidentiality were enough to
justify confidentiality. National Parks enunciated a two-part test: commercial
information is confidential “if disclosure of the information is likely to have either
of the following effects: (1) to impair the government’s ability to obtain necessary
information in the future; or (2) to cause substantial harm to the competitive position
of the person from whom the information was obtained.”29 These criteria are
commonly referred to as Test 1 and Test 2.30
In 1992, in Critical Mass Energy Project v. NRC,31 after examining arguments
in favor of overturning National Parks, the D.C. Circuit reaffirmed application of the
National Parks test based on the principle of stare decisis – which counsels against
overruling established precedent. The plaintiff was seeking reports which a utility
24 5 U.S.C. § 552(b)(4).
25 Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983).
26 See, Nadler v. FDIC, 92 F.3d 93, 95 (2d Cir. 1996)(term “person” includes “individual,
partnership, corporation, association, or public or private organization other than an agency”
(quoting definition found in Administrative Procedure Act, 5 U.S.C. § 551(2)).
27 See, Allnet Communications Servs. v. FCC, 800 F. Supp. 984, 988 (D.D.C. 1992).
28 498 F.2d 765 (D.C. Cir. 1974).
29 Id. at 770.
30 See also, Niagara Power Corp. v. United States Department of Energy, 169 F.3d 16 (D.C.
Cir. 1999)(court held that material fact existed as to whether disclosure of fuel consumption
and power generation figures provided pursuant to statute would impair agency’s ability to
collect information, and whether disclosure was likely to cause plants substantial harm).
31 975 F.2d 871, 879-80 (D.C. Cir. 1992)(en banc)(“Critical Mass II”), cert. denied, 113 S.
Ct. 1579 (1993).
industry group prepared and gave voluntarily to the NRC. The agency did, however,
have the authority to compel submission. The full Circuit Court of Appeals clarified
the scope and application of the National Parks test. The court limited its application
“to the category of cases to which [they were] first applied; namely those in which
a FOIA request is made for commercial or financial information a person was obliged
to furnish to the Government.”32 The court established a new test for confidentiality
when the information is submitted voluntarily;33 the information is exempt from
disclosure if the submitter can show that it does not customarily release the
information to the public.34 Under the Critical Mass decision, one standard (the
traditional National Parks tests) applies to any information that a submitter “is
required to supply,” while a broader exemption 4 standard (a new “customary
treatment” test) applies to any information that is submitted to an agency on a
voluntary basis. The burden of establishing the submitter’s custom remains with the
agency seeking to withhold the records. Applying the customary treatment test to the
information at issue (utility industry group reports voluntarily submitted), the D.C.
Circuit agreed with the district court’s conclusion that the reports were commercial;
that they were provided to the agency on a voluntary basis; and that the submitter did
not customarily release them to the public. Thus, the reports were found to be
confidential and exempt from disclosure under exemption 4.
The key issue raised by Critical Mass is the distinction between “required” and
“voluntary” information submissions. In its decision, the court did not expressly
define the two terms. The Department of Justice has issued policy guidance on the
distinction between information required and information voluntarily submitted
under Critical Mass, and has taken the position that the submission of records in
instances such as the bidding on government contracts is mandatory rather than
voluntary.35 The basic principles developed by the Justice Department are that a
submitter’s voluntary participation in an activity does not determine whether any
information submission made in connection with that activity is “voluntary;” that
Critical Mass determinations should be made according to the circumstances of
information submission; that information submissions can be “required” by a range
of legal authorities, including informal mandates that call for the submission of
information as a condition of dealing with the government or of obtaining a
government benefit; and that the existence of agency authority to require an
information submission does not automatically mean that the submission is
“required.”36 The decision in Critical Mass has generated a great deal of
commentary.37 In addition, there are many cases where courts have applied the
32 Id. at 880.
33 With respect to critical infrastructure information, the federal government seeks to ensure
that it is able to obtain the information from the private sector on a voluntary basis.
34 Id. at 879.
35 See FOIA Update, Vol. XIV, No. 2, at 3-5 (“OIP Guidance: The Critical Mass Distinction
Under Exemption 4").
37 See, e.g., Rocco J. Maffei, The Impact of FOIA after Critical Mass, 22 Pub. Cont. L. J.
Critical Mass distinction between voluntary and required submissions.38
Nonetheless, the Critical Mass voluntary vs. required standard has not been widely
adopted by the other circuits that have endorsed the National Parks test.
Executive Order 12,600 (Predisclosure Notification Procedures for Confidential
Commercial Information), issued in 1987, requires each federal agency to establish
procedures to notify submitters of confidential commercial information whenever an
agency “determines that it may be required to disclose” such information under the
FOIA.39 The submitter is provided an opportunity to submit objections to the
proposed disclosure.40 If the agency decides to release the information over the
objections of the submitter, the submitter may seek judicial review of the propriety
of the release, and the courts will entertain a “reverse FOIA” suit to consider the
confidentiality rights of the submitter.41
Another area of concern under exemption 4 jurisprudence is the so-called
mosaic effect which recognizes that an individual piece of information, which in and
of itself may not qualify as confidential business information, may be combined with
other information to cause substantial competitive harm. Private information
hawkers routinely engage in the business of assembling all of the pieces of
information. Courts have applied the mosaic effect to prevent the disclosure of
confidential business information.42
As previously noted with regard to critical infrastructure information, the federal
government seeks to ensure that it is able to obtain information from the private
sector on a voluntary basis. S. 2452, the Senate version of National Homeland
Security and Combating Terrorism Act of 2002, would have essentially codified the
757 (1993); G. Branch Taylor, The Critical Mass Decision: A Dangerous Blow to
Exemption 4 Litigation, 2 CommLaw Conspectus 133 (1994).
38 See, e.g.., Lykes v. Bros. S.S. v. Pena, No. 92-2780, slip op. at 8-11 (D.D.C. Sept. 2,
1993)(“under Critical Mass, submissions that are required to realize the benefits of a
voluntary program are to be considered mandatory”); Lee v. FDIC, 923 F. Supp. 451, 454
(S.D.N.Y. 1996)(when documents were “required to be submitted” in order to get
government approval to merge two banks, court rejects agency’s attempt to nonetheless
characterize submission as “voluntary”); AGS Computers, Inc. v. United States Dep’t of
Treasury, No. 92-2714, slip op. at 10 (D.N.J. Sept. 16, 1993)(submitter’s submission of
documents to agency during a meeting was done voluntarily because there was no
“controlling statute, regulation, or written order”); Center for Auto Safety v. National
Highway Traffic Safety Admin., 93 F. Supp.2d 1 (D.D.C. Feb. 28, 2000), remanded by
Center for Auto Safety v. National Highway Traffic Safety Admin., 244 F.3d 144 (D.C.Cir.
Mar. 30, 2001)(information on airbag systems submitted in response to agency’s request was
a voluntary submission because agency lacked legal authority to enforce its request for
39 3 C.F.R. 235 (1988), reprinted in 5 U.S.C. § 552 note.
40 Exec. Order No. 12,600, § 4.
41 Lee v. FDIC, 923 F. Supp. 451, 455 (S.D.N.Y. 1996).
42 See, e.g., Tinken Co. v. U.S. Customs Serive, 491 F. Supp. 557 (D.D.C. 1980).
voluntary/required rule from the D.C. Circuit’s decision in Critical Mass v. NRC, and
applies it to critical infrastructure information voluntarily submitted by the private
sector, and not customarily available to the public, to the new Department of
Homeland Security. Codification of the Critical Mass standard could eliminate
differences in treatment in the federal courts of confidential business information
related to critical infrastructure.
FOIA Exemption in the Administration’s Initial Proposal for
The Bush Administration’s initial legislative proposal establishing the new
Department of Homeland Security proposed to exempt from disclosure under FOIA
critical infrastructure information voluntarily submitted to the government by non-
federal entities. Section 204 of the proposal stated:
Information provided voluntarily by non-federal entities or individuals that
relates to infrastructure vulnerabilities or other vulnerabilities to terrorism
and is or has been in the possession of the Department [of Homeland
Security] shall not be subject to section 552 of title 5, United States Code.
This proposed language did not provide additional specificity, and was criticized by
the FOIA requester community as “cast[ing] a shroud of secrecy over one of the
Department of Homeland Security’s critical functions, critical infrastructure
FOIA Exemptions in Homeland Security Proposals
When the President’s legislative proposal was reported out of the House Select
Committee on Homeland Security as H.R. 5005 (Armey), the Administration’s FOIA
exemption was modified and included in a separate subtitle (Title VII, Subtitle C,44
sections 721 - 724). The Senate Government Affairs Committee, too, voted to add
a FOIA exemption to its bill S. 2452 (Lieberman, section 198) establishing a
Department of Homeland Security. The House language prevailed as Title II,
Subtitle B, Section 214, in P.L 107-296. A brief discussion of the FOIA exemptions
in these two homeland security bills follows. A comparison of the language
43 David, Sobel, Electronic Privacy Information Center, Testimony Before House
Subcommittee on Oversight and Investigation on “Creating the Department of Homeland
Security: Consideration of Administration’s Proposal.” (July 9, 2002).
44 On the House floor, two amendments to this section of the bill were offered. Amendment
No. 24 would have eliminated Subtitle C entirely. Amendment No. 25 would have amended
the definition of “covered agency” to include not just the Department of Homeland Security,
but any other agency designated by the Department of Homeland Security or with which the
Department shares critical infrastructure information. Both amendments failed. 148 Cong.
Rec. H5845 (July 26, 2002).
regarding FOIA exemptions is included in the CRS Report RL31513, Homeland
Security: Side-By-Side Comparison of H.R. 5005 and S. 2452, 107th Congress.
P.L. 107-296, Title II, Subtitle B.
Section 214 of the Homeland Security Act of 2002 (P.L. 107-269) exempted
from disclosure under FOIA “critical infrastructure information (including the
identity of the submitting person or entity) that is voluntarily submitted to a covered
agency for use by that agency regarding the security of critical infrastructure (as
defined in the USA PATRIOT Act)...,45 when accompanied by an express
statement....” The Homeland Security Act defines critical infrastructure information
to mean “information not customarily in the public domain and related to the security
of critical infrastructure or protected systems—
(A) actual, potential, or threatened interference with, attack on,
compromise of, or incapacitation of critical infrastructure or protected
systems by either physical or computer-based attack or other similar
conduct (including misuse of or unauthorized access to all types of
communications and data transmission systems) that violates federal, state,
or local law, harms interstate commerce of the United States, or threatens
public health and safety;
(B) the ability of critical infrastructures or protected systems to resist such
interference, compromise, or incapacitation, including any planned or past
assessment, projection or estimate of the vulnerability of critical
infrastructure or a protected system, including security testing, risk
evaluation thereto, risk management planning, or risk audit; or,
(C)any planned or past operational problem or solution regarding critical
infrastructure...including repair, recovery, reconstruction, insurance, or
continuity to the extent it relates to such interference, compromise, or
A “covered agency” is defined as the Department of Homeland Security. The
submission of critical infrastructure information is considered voluntary if done in
the absence of the Department of Homeland Security exercising its legal authority
to compel access to or submission of such information. Information submitted to the
Securities and Exchange Commission pursuant to section 12 (i) of the Securities and
Exchange Act of 1934 is explicitly not protected by this provision. Nor is
information disclosed or written when accompanying the solicitation of an offer or
a sale of securities, nor if the information is submitted or relied upon as the basis for
licensing or permitting determinations, or during regulatory proceedings.
45 “Systems or assets, whether physical or virtual, so vital to the United States that the
incapacity or destruction of such systems and assets would have a debilitating impact on
security, national economic security, national public health or safety, or any combination
of those matters.” P.L. 107-56, section 1016.
46 P.L. 107-296, § 212(3).
Besides exempting from FOIA critical infrastructure information which has
been submitted voluntarily with the appropriate express statement to the Department
of Homeland Security, the Homeland Security Act also states that the information
shall not be subject to any agency rules or judicial doctrine regarding ex parte
communications with decision making officials. The Act also prohibits such
information, without the written consent of the person or entity submitting such
information in good faith, from being used directly by the Department of Homeland
Security, any other federal, state, or local authority or any third party, in any civil
action. Nor may the information, without the written consent of the person or entity
submitting such information, be used or disclosed by any officer or employee of the
United States for any purpose other than the purposes of the subtitle, except, in the
furtherance of a criminal investigation or prosecution, or when disclosed to either
House of Congress, or to the Comptroller General or other authorized General
Accounting Office official, in the conduct of official business. Furthermore, any
federal official or employee who knowingly publishes, divulges, discloses, or makes
known in any manner or to any extent not authorized by law, any protected
information, is subject to removal, imprisonment up to one year, and fines. If the
information is disclosed to state or local officials, it may not be used for any purpose
other than the protection of critical infrastructures, and it may not be disclosed under
state disclosure laws. The protections afforded protected information do not result
in waiver of any privileges or protections provided elsewhere in law. Finally, no
communication of critical infrastructure information to the Department of Homeland
Security shall be considered to be an action subject to the requirements of the Federal
Advisory Committee Act.47
For information to be considered protected, it must be accompanied with a
written marking to the effect that “this information is voluntarily submitted to the
federal government in expectation of protection from disclosure as provided by the
Critical Infrastructure Information Act of 2002 [the name given to Subtitle B].” The
Secretary of the Department of Homeland Security is to establish procedures for
handling the information once it is received. Only those agency components or
bureaus, designated by the President or the Secretary of Homeland Security, as
having a Critical Infrastructure Program may receive critical infrastructure
information from the Department.
The above protections for information voluntarily submitted by a person or
entity to the Department of Homeland Security do not limit or otherwise affect the
ability of a state, local, or federal government entity, agency or authority, or any third
party, under applicable law, to obtain critical infrastructure information (including
any information lawfully and properly disclosed generally and broadly to the public)
and to use that information in any manner permitted by law. Submittal to the
government of information or records that are protected from disclosure is not to be
construed as compliance with any requirement to submit such information to a
47 The Federal Advisory Committee Act (FACA) requires that the meetings of all federal
advisory committees serving executive branch entities be open to the public. The FACA
specifies nine categories of information, similar to those in FOIA, that may be permissively
relied upon to close advisory committee deliberations. 5 U.S.C. App. 2.
federal agency under any other provision of law. Finally, the Act does not expressly
create a private right of action for enforcement of any provision of the Act.
S. 2452, Section 198 (107th Congress).
S. 2452, National Homeland Security and Combating Terrorism Act of 2002,
as agreed to by the Senate Governmental Affairs Committee on July 25, 2002,
exempted a “record” pertaining to the vulnerability of and threats to critical
infrastructure (as defined in the USA PATRIOT Act) furnished voluntarily to the
Department of Homeland Security from being made available under FOIA. A record
was covered by the bill if the provider would not customarily make the record
available to the public. It also required the provider to designate and certify, in a
manner specified by the Department of Homeland Security, that the record is
confidential and not customarily made available to the public.
Unlike the Homeland Security Act (P.L. 107-296), the Senate bill did not
include a definition of “critical infrastructure information.” However, the bill
covered “records pertaining to the vulnerability of and threats to critical infrastructure
(such as attacks, response, and recovery efforts).”
Under S. 2452 a record is submitted voluntarily if it was submitted to the
Department of Homeland Security “in the absence of authority of the Department
requiring that record to be submitted,” and it is not submitted or used to satisfy any
legal requirement or obligation or to obtain any grant, permit, benefit, or other
approval from the federal government.48
Agencies with which the Department of Homeland Security shares protected
records were to be bound by the FOIA exemption. FOIA requests for protected
information were to be referred back to the Department of Homeland Security, and
the Department was permitted to provide any portion of the record that is reasonably
segregable from that part of the record which is exempt from disclosure, after
deleting the protected information. The bill also allowed the provider of a record that
is furnished voluntarily to the Department of Homeland Security to withdraw the
confidential designation at any time in a manner specified by the Department.
S. 2542 allowed an agency which had received independently of the Department
a record “similar or identical” to that received by the Department, to disclose the
record under FOIA. The Senate bill did not preempt state or local disclosure laws
if the state or local authority received the information independent of the Department
of Homeland Security, nor did it contain any civil liability immunity, or criminal
The Secretary of the Department of Homeland Security was directed to prescribe
procedures for: acknowledging the receipt of records furnished voluntarily; the
48 Benefits include agency forbearance, loans, or reductions or modifications of agency
penalties or rulings. Benefits do not include warnings, alerts, or other risk analysis offered
by the Department.
certification of records furnished voluntarily as confidential and not customarily
made available to the public; the care and storage of records furnished voluntarily;
and the protection and maintenance of the confidentiality of records furnished
Finally, the Senate bill required the Comptroller General to report to Congress
on the implementation and use of the above protections. The report was to include
the number of persons in the private sector and the number of state and local agencies
that furnished records voluntarily under these provisions, the number of requests for
access granted or denied under these provisions, and any recommendations regarding
improvements in the collection and analysis of sensitive information related to the
vulnerabilities of and threats to critical infrastructures.
In sum, significant differences existed between H.R. 5005 (enacted into law as
P.L. 107-296) and S. 2452. These differences included the scope of the information
protection; the type of information covered and exempted from FOIA; the definition
of a voluntary submission; the other purposes authorized for use or disclosure of the
information; the disclosure of information with the consent of the submitter; the
permissibility of disclosures of related information by other agencies; immunity from
civil liability; preemption; and criminal penalties.
Issues and Concerns
The general concerns of the owners and operators of critical infrastructure are
that the type and breadth of information they are being asked to submit on
vulnerabilities, incidents, remedies, etc., if made available to competitors or to the
general public, could harm their public relations, compromise their competitive
position, expose them to liability, or disclose sensitive information to terrorists and
others who might wish to disrupt the function of their infrastructure. It was their
position that crafting a specific exemption to FOIA in statute (i.e., a (b)(3)
exemption) would provide the greatest legal protections for the information they
share. They believed that a narrowly tailored (b)(3) exemption would eliminate
agency discretion to disclose protected information in response to a FOIA request.
In addition, given the federal government’s need to share sensitive business
information for homeland security purposes with state and local officials, owners and
operators also sought federal preemption of state and local disclosure laws. Owners
and operators were concerned that some of this information could make them subject
to liability in unforeseen ways.
A number of public interest groups have expressed (and continue to express)
their opposition to the protections being applied, particularly those contained in the
House version.49 The primary concern is that the type of information exempted from
FOIA was too broadly defined, and could allow any company claiming to be an
49 Some of the groups that have expressed concern include the American Civil Liberties
Union, the Electronic Privacy Information Center, Natural Resources Defense Fund, the
Society of Professional Journalists, and the U.S. Public Interest Research Group. For a
sample of the groups that have joined in opposition and their rationales, see
[http://www.ombwatch.org/ article/article vi ew/943/1/18/cleanwateraction.org] .
owner or operator of a critical infrastructure to voluntarily submit almost any kind
of information in order to protect the information from disclosure under the FOIA.
Critics also believe the definition of critical infrastructure adopted from the USA
PATRIOT Act is too broad.
The Act also covers information regarding an attack, or similar conduct, that
violates law or harms interstate commerce. According to one critique, the language
“or similar conduct” and “harms interstate commerce” is broad and could include
non-criminal or inadvertent incidents that cause temporary interruption of normal
business operations.50 The criticism goes on to state that the purposes for which the
information may be used (and therefore contributing to the definition of what kind
of information may be protected) includes analysis, warning, interdependency study,
recovery, reconstitution, or “other informational purposes.” According to the
critique, “other informational purposes” covers untold amounts of information, some
of which may have been previously available to the public.
These groups also are concerned that information currently collected by various
agencies and available to the public could now be protected from disclosure if
submitted to the Department of Homeland Security initially as critical infrastructure
information. This is particularly an issue in the area of environmental law relating
to a community’s right to know.51 Both bills stated that the protections are granted
“notwithstanding any other provisions of law.” Under current law (the Emergency
Planning and Community Right-to-Know Act, P.L. 99-499, 42 USC 11001-11050),
facilities handling certain toxic substances in excess of a threshold amount annually
must report to the Environmental Protection Agency and local officials the maximum
and average daily amounts of such substances that they had on hand during the
previous year; the location of such chemicals within the facility; and estimates of
how much was released into the environment as part of normal handling and
processing. In addition, in the event of an accidental release above a threshold
amount, facilities immediately must report the amount released to local officials.
The 1990 amendments to the Clean Air Act (which were passed in P.L. 101-
549, Section 301, amending 42 USC 7412) made it the duty of owners and operators
of facilities producing, processing, handling, or storing certain extremely hazardous
substances: to identify hazards that may result from releases; to design and maintain
a safe facility; and to minimize the consequences of accidental releases which do
occur. To prevent accidental releases, the Clean Air Act requires facilities handling
such substances to develop “risk management plans.” Among the items included in
these plans are an accounting of any accidental releases of those substances over the
previous five years; estimates of the quantities of chemicals that might be released
in the event of an accident, including a worst-case accident; estimates of the potential
exposures to affected downwind populations; a program for preventing releases; and
an emergency response program to protect public health and the environment in the
50 Problems with S. 1456, Critical Infrastructure Information Act. National Resources
Defense Council. Although directed at the rewritten version of S. 1456 that was never
introduced, the language at issue is the same as that proposed in H.R. 5005. The critique can
be found at [http://www.ombwatch.org/info/cii/nrdcproblems.html].
51 See CRS Report RL31530, Chemical Plant Security by Linda-Jo Schierow.
event of a release. Under the 1990 law, public disclosure of most of this information
(which also could be released in response to FOIA requests) is required, but the
details of the off-site consequence analyses (OCA) for hypothetical accidents are not
required to be disclosed. In addition, companies may claim confidentiality for some
submitted information, provided they can support that claim.
Security concerns arose about the potential utility to terrorists of risk
management planning data, just as EPA was planning to make the plans widely
available to the public via the Internet.52 Convinced of the need for caution, EPA
agreed not to post OCA data on its website. Nevertheless, the information could be
obtained electronically using FOIA, and several public interest groups announced that
they would do so and post the data. In 1999, Congress responded by again amending
the Clean Air Act. The amended Act exempts OCA data from disclosure under
FOIA, and directs EPA to limit public disclosure as necessary to reduce risks. EPA
issued a final regulation on data access on August 4, 2000.53 It allows the public to
see paper copies of sensitive OCA information through federal reading rooms,
approximately one per state, and provides Internet access to the OCA data elements
that pose the least serious criminal risk. State and local agencies are encouraged to
provide the public with read-only access to OCA information on local facilities. At
the federal reading rooms, members of the public may read OCA information for up
to 10 facilities per calendar month and for all facilities with potential effects in the
jurisdiction of the local emergency planning committee. State and local officials and
other members of the public may share OCA information as long as the data are not
conveyed in the format of sensitive portions of the RMP or any electronic database
developed by EPA from those sections.54 A Clinton Administration proposal to
implement the final rule (66 Federal Register 4021, Jan. 17, 2001) would have
allowed people to view plans of facilities outside their local area and enhanced access
for “qualified researchers.” The draft plan was rescinded by the Bush Administration
(66 Federal Register 15254, Mar. 16, 2001). No further regulatory action has been
taken to date.
Critics of the FOIA exemption for critical infrastructure information submitted
voluntarily with the appropriate express statement are concerned that the
“notwithstanding any other provision of law” clause could possibly exempt from
FOIA information about facilities handling potentially dangerous chemicals that is
currently available under the Emergency Planning and Community Right-to-Know
Act and the Clean Air Act.
Some public interest groups are concerned that the breadth of information that
could be exempted from disclosure, combined with the prohibition on use of critical
52 During the mid to late 1990s, federal agencies were facilitating electronic public access
to governmental information in response to congressional directives, such as the Electronic
Freedom of Information Act, P.L.104-231, and presidential initiatives, such as “President
Clinton’s Environmental Monitoring for Public Access and Community Tracking” program.
53 65 Federal Register 48107-48133.
54 EPA Fact Sheet. “Chemical Safety Information, Site Security and Fuels Regulatory Relief
Act: Public Distribution of Off-Site Consequence Analysis Information.” EPA 550-F00-012,
infrastructure information in any civil suit, could give owners or operators of critical
infrastructures an “unprecedented immunity” from complying with a variety of laws
(i.e., antitrust, tort, tax, civil rights, environmental, labor, consumer protection, and
health and safety laws). Another concern centers on a perceived lack of clarity on
whether information obtained independently by subpoena, for example, could be used
to bring civil suit (e.g., would a victim of chemical exposure be precluded from suing
if information previously submitted to the Department of Homeland Security was
obtained independently from the company by subpoena).
Another argument made by the public interest groups is that existing FOIA
exemptions and case law offer sufficient protections to owner/operators. They cite
exemption (b)(4), which allows agencies to withhold commercial information that
is privileged or confidential, if by disclosing that information, the competitive
position of the provider is harmed or the ability of the government to continue
receiving that information is impaired. An exemption from FOIA for critical
infrastructure information, they argue, would promote government secrecy and harm
These groups are also concerned about a provision they say gives the private
sector the power to determine what information is to be protected, simply by
including an express statement of protection from disclosure on the submission to the
federal government. The criminal penalties provided for the unauthorized disclosure
of protected information are viewed by some groups as essentially an anti-
whistleblower provision designed to stifle government accountability. Another issue
raised by the groups is whether a submission of information to the government will
be treated as voluntary in situations where an agency has not exercised its authority
to compel submission. Finally, the groups take issue with the provision that
preempts state and local freedom of information laws.
The public interest groups concerned with granting specific FOIA exemptions
have expressed a guarded acceptance of the Senate version. They feel it basically
puts into statute recent FOIA case law regarding the protections afforded confidential
information submitted to government agencies under FOIA exemption 4.55
Representatives from industry responded to some of these concerns by stating
that it was not their intent to evade current laws and regulations, but that the extra
protections are needed before they are willing to voluntarily submit information that
might be used against them later, either legally or competitively. Under the existing
law, companies had no assurance that information they share with a government
agency will be treated confidentially, and agencies are not required to commit to
confidentiality at the time of disclosure. Agencies are not required to initiate the
FOIA exemption process until a FOIA request is received. When it is received, the
agency is asked to defend the information’s confidentiality, and is not required to
inform the originator if it believes it has enough information to proceed. Industry is
generally in favor of legislation that accomplishes the goal of encouraging it to
submit security-related information without fear of public disclosure.
55 Industry Offers Support for Scaled-Back Senate FOIA Revisions, Inside EPA (July 26,
Representatives from owners and operators have also stated that they favor a narrow
exemption so as to cover only infrastructure threat and vulnerability information.56
Compelling arguments existed on both sides of the debate for and against
exempting critical infrastructure information from the Freedom of Information Act.
However, the Senate bill, S. 2452, never made it to the Senate floor. After the
November 2002 election, sentiment to pass a Homeland Security Act led to the
adoption by the Senate of large portions of the House-passed bill. The provisions
regarding the exemption of Critical Infrastructure Information from FOIA adopted
the House language in total. Public interest groups continue to criticize the language.th
S. 6 introduced January 7, 2003, in the 108 Congress, and sent to the Senate
Judiciary Committee, resurrects S. 2452 (107th Congress) language (Title VIII,
56 Kenneth C. Watson, President Partnership for Critical Infrastructure Security, Testimony
Before House Subcommittee on Oversight and Investigation on “Creating the Department
of Homeland Security: Consideration of Administration’s Proposal.” (July 9, 2002).