Infrastructure bill seeks to withhold new categories of records from public – Reporters Committee for Freedom of the Press

Buried deep within the recently passed infrastructure bills 2,740 pages are several provisions that have received little public attention but could dramatically affect the publics access to information created under its programs. From cybersecurity to transportation research to Native American historical resources, H.R. 3684is unusually full of efforts to create new exemptions to the federal Freedom of Information Act, and Congress hasnt said why.

Although FOIA has justnine exemptions, thethird(commonly referred to as b3) exempts records that are required to be withheld under other statutes. Courts have offered guidance on dozens of statutes over the years, but no comprehensive list of b3 statutes exists. In 2010, ProPublicareportedthat agencies cited more than 240 laws over a two-year period to deny information in response to FOIA requests. And a 2021 Government Accountability Officereportfound that agencies cited 256 statutes to deny FOIA requests between fiscal years 2010 and 2019. But until a statute is cited by an agency to withhold records, and is tested in the courts, its status as a viable b3 exemption remains uncertain. Because FOIA litigation is relativelyrare, a statute can effectively operate as a categorical exemption without judicial review even if it does not meet b3s requirements.

The infrastructure bill, as recentlyreportedby the Wall Street Journal, contains an abnormally high number of references to FOIA, many of which appear to be aimed at shielding records from the public. The actual import of those provisions is far from clear, however, in part because of a 2009 amendment to FOIA. After years of ambiguity about whether particular statutes qualified under Exemption 3, Congress amended the exemption through the OPEN FOIA Act to require all future b3 statutes to specifically cite to that FOIA exemption. That provision has proved highly effective over the years in helping transparency advocates locate potential new exemptions.

Some provisions within theinfrastructure bill do refer to Exemption 3, including five sections that concern information provided to the federal government regarding energy security. Those provisions could come into play if the Secretary of the Department of Energy reasonably foresees that disclosure of such information could be detrimental to the physical security or cybersecurity of any electric utility or the bulk-power system.

Other provisions are far more nebulous. For example, a $42 billion broadband grant program purports to exempt any action taken or decision made by the Assistant Secretary of Commerce from chapter 5 or 7 of title 5 of the U.S. Code. While it is possible that this provision was designed to avoid the Administrative Procedure Act, the referenced chapter 5 also includes FOIA, the Privacy Actand the Sunshine in Government Act. The broadband provision, however, contains no cross-reference to FOIAs Exemption 3, as required by the OPEN FOIA Act, casting confusion as to its import. As the Wall Street Journal reported, the implications for transparency, privacy and open government werent mentioned during the floor debate, and it isnt clear whether the Senate understood the potential consequences.

Other provisions in the infrastructure bill reference FOIA in an attempt to exempt records, but not in the way the OPEN FOIA Act requires. Section 25012 which creates an entity within the Department of Transportation to advance transportation infrastructure states that certain collected information shall be considered to be not subject to disclosure underExemption 4of FOIA. But Exemption 4, unlike b3, imposes a fact-specific test thatexamineshow information is treated in practice. So its unclear how Congress can declare that whole categories of information automatically qualify under its substantive requirements.

Even less specific is section 70801 of the bill, which amends the Fixing Americas Surface Transportation Act to state that in seeking authorization for certain construction projects, any information relating to Native American natural, cultural, and historical resources submitted by a project sponsor shall be kept confidential and exempt from the disclosure requirements of FOIA. No reference to Exemption 3, or indeed any FOIA exemption, is included in the provision.

Regardless of whether all provisions in the infrastructure bill can qualify as real b3 exemptions, agencies may attempt to rely on them in the future to deny FOIA requests for government records from journalists and the public. That could be particularly damaging to the publics right to know. Unlike other FOIA exemptions, b3s are mandatory, not discretionary, and, unless a sunset is included, the exemption will apply forever.

The public interest in records cannot overcome a true b3 exemption, nor does FOIAs foreseeable harm provision apply to such statutes. In other words, once a b3 is created, the publics right to know is extinguished unless and until Congress changes the law. The finality of such provisions deserves a robust public debate that, unfortunately, did not occur here.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.

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Infrastructure bill seeks to withhold new categories of records from public - Reporters Committee for Freedom of the Press