As important as the federal infrastructure bill will be to all Americans, including those in Western New York, it is still a gigantic piece of legislation that allows members of Congress to pack political cherry bombs into its reams of legalese.
These are hidden, and sometimes unrelated, matters that escape public notice until after the bill has become law. Then they explode. Tucked into the sprawling infrastructure bill are new exceptions to the federal Freedom of Information law – a measure that should be expanded, not constricted.
Although FOIA has just nine exemptions, one of them, known as “b3,” is a catchall that exempts records that other statutes require to be withheld. While no comprehensive list of those exemptions exists, a 2010 report by ProPublica found that agencies cited more than 240 laws invoking b3 over two years, according to the Reporters Committee for Freedom of the Press. That speaks to Washington’s craving to keep secrets from the citizens who empower them and whom they represent. Sadly, the Infrastructure Investment and Jobs Act is no exception.
Not all the exemptions are wholly or necessarily inappropriate. Some deal with energy security. They 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.”
Some are confusing. The $42 billion broadband grant program seeks 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.
Chapter 5 includes FOIA, the Privacy Act and the Sunshine in Government Act. The broadband provision, however, contains no cross-reference to b3, as required by law. As the Wall Street Journal reported, it’s unclear if the Senate “understood the potential consequences.”
In other ways, the law simply declares certain other records to be exempt, but not in the way the law requires. That appears to be sloppy or arrogant and possibly illegal.
Even murkier, the Reporters Committee says, is a section that amends the Fixing America’s Surface Transportation Act. In seeking authorization for certain construction projects, it bizarrely demands that 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. It offers no reference to b3 or any other available exemption. It just says so on its own authority.
It’s possible that the legislators who inserted these provisions are simply hoping to deter anyone from seeking information. If so, it’s a nefarious maneuver, one that will either discourage legitimate requests for public information or cost individuals or businesses money to test these prohibitions in court. There ought to be a law.
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