-------- Original Message --------
Subject: Re: 'final' of sign-on ltr on FOIA exception
Date: Thu, 09 Sep 2004 10:31:00 -0700
From: Larry Cruse <[log in to unmask]>
To: <[log in to unmask]>
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Colleagues,
every map librarian organization should sign this, CUAC too.
Larry Cruse
UCSD
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Date: Wed, 08 Sep 2004 16:04:17 -0400
From: "Patrice McDermott" <[log in to unmask]>
To: "Agenda for Access" <[log in to unmask]>
Subject: [access] 'final' of sign-on ltr on FOIA exception
Still open for sign-ons. Again, this will also go to the conferees and
to the outside conferees.
I don't think there will be any further changes (except for fixing any
typos or flat-footed phrasing).
Patrice
********************************
Dear Chairman Hunter:
The undersigned organizations and individuals write, in anticipation of
the House and Senate conference on the National Defense Authorization
Act for FY 2005, to express our serious concerns with Section 1034,
"Nondisclosure of Certain Products of Commercial Satellite Operations,"
as included in S. 2400.
Section 1034 would exempt from the Freedom of Information Act "data
that are collected by land remote sensing and are prohibited from sale
to customers other than the United States and its affiliated users
under the Land Remote Sensing Policy Act of 1992." Under the bill's
terms, important non-confidential commercial satellite imagery, which
the government has purchased, would be exempt from disclosure to the
public. The exemption would apply not only to commercial satellite
images acquired by the government, but would also broadly exclude from
public access "any... other product that is derived from such data."
Thus, maps, reports, and any other non-classified government analyses
or communications that are in some way "derived from" a commercial
satellite image would become inaccessible through FOIA. Indeed, even if
the government wishes to release such information, the bill may
preclude its ability to do so.
Moreover, the legislation would preempt state and local laws mandating
disclosure by a state or local government. Again, this would extend to
all imagery or imagery-derived information.
The fact that this information licensed to the government is not a
legitimate reason for its exemption from FOIA. Federal agencies use
licensed and/or purchased imagery in regulatory proceedings and
numerous other mandated activities. The public requires access to this
imagery in order to participate in these proceedings and importantly,
to be informed about the activities of Government. Without access to
this information, members of the public are unable to effectively
participate in governmental activities that affect their daily lives.
As noted in the recent National Research Council report, Licensing
Geographic Data and Services: "When geographic data are used to design
or administer regulatory schemes or formulate policy, affect the rights
and obligations of citizens, or have likely value for the broader
society as indicated by a legislative or regulatory mandate, the agency
should evaluate whether the data should be acquired under terms that
permit unlimited public access or whether more limited access may
suffice to support the agency's mandates and missions and the agency's
actions in judicial and other review." (page 229,
http://www.nap.edu/books/0309092671/html/ prepublication version)
Senate Report. 108-260 notes that disclosure of such information
through FOIA "may damage the national security by mandating disclosure
to the general public upon request," and notes the desire of the
government to not classify such information in order to share it
quickly when needed. We are concerned, however, that this provision
would further the extraordinary grants of authority by Congress to the
Executive Branch, allowing it to preclude any possibility of public
access to unclassified material without appropriate congressional or
judicial oversight.
Indeed, the Land Remote Sensing Policy Act of 1992 notes that "The
continuous collection and utilization of land remote sensing data from
space are of major benefit in studying and understanding human impacts
on the global environment, in managing the Earth's natural resources,
in carrying out national security functions, and in planning and
conducting many other activities of scientific, economic, and social
importance;" and that "the Nation's broad civilian, national security,
commercial, and foreign policy interests in remote sensing will best be
served by ensuring that Landsat remains an unclassified program that
operates according to the principles of open skies and
nondiscriminatory access." Moreover, it notes that "It is in the best
interest of the United States to maintain a permanent, comprehensive
Government archive of global Landsat and other land remote sensing data
for long-term monitoring and study of the changing global environment,"
an interest that will be harmed by this provision.
We urge Congress, instead of taking this precipitous step, to follow
the recommendations of the RAND National Defense Research Institute in
its report prepared for the National Geospatial-Intelligence Agency,
Mapping the Risks: Assessing the Homeland Security Implications of
Publicly Available Geospatial Information. The report recommends that
federal agencies and other organizations use an analytical process to
assess the potential homeland security sensitivity of specific pieces
of publicly available geospatial information and to determine if
restricting access to these specific pieces would enhance security.
They recommend that such a process include analysis of the usefulness
of the information to an attacker; its uniqueness; and the expected
societal benefits of access and the costs of restricting the
information.
We are also concerned with other justifications in the Report language.
The bill defines ``land remote sensing information'' as "data that are
collected by land remote sensing and are prohibited from sale to
customers other than the United States and its affiliated users under
the Land Remote Sensing Policy Act of 1992." The Report notes that,
"Compelled release of such data and imagery by the United States under
FOIA defeats the purpose of these licensing agreements [and] removes
any profit motive*" Confidential business information and trade secrets
are already adequately protected under FOIA and copyrighted information
under other laws and regulations. Protecting a profit motive is an
entirely inappropriate reason for creating yet another exceptionally
broad exemption to the FOIA. Indeed, an amendment restricting
information from public release under the FOIA unfairly restricts
public and business use of this information, which has significant and
broad application in farming and resources industries, science and
technology. In providing a restriction on behalf of one specific
interest, Congress appears to neglect the broad economic and social
benefit of such information.
The Freedom of Information Act is intended to be a tool for protecting
and enhancing, the public's access to their government. Exemptions to
it should only occur after wide public consultation and discussion,
which has not occurred with this provision. We urge the conferees to
drop Section 1034.
Sincerely,
Patrice McDermott
Deputy Director, Office of Government Relations
American Library Association
Steven Aftergood
Project Director
Federation of American Scientists
Meredith Fuchs
General Counsel
National Security Archive
Terry Francke
General Counsel
Californians Aware
Barbara A. Petersen
President
First Amendment Foundation
David Bahr
Founder & Staff Attorney
FOIAdvocates
Prue Adler
Associate Executive Director
Federal Relations & Information Policy
Association of Research Libraries
Danielle Brian
Executive Director
Project On Government Oversight
Kevin Goldberg
General Counsel
American Society of Newspaper Editors
Sean Moulton
Senior Policy Analyst
OMBWatch
Lucy A. Dalglish
Executive Director
Reporters Committee for Freedom of the Press
S. Elizabeth Birnbaum
Vice President for Government Affairs
American Rivers
Edward Hammond
Director
The Sunshine Project
Susan E. Kegley
Senior Scientist
Pesticide Action Network
Laura W. Murphy
Director, Washington Legislative Office
American Civil Liberties Union
Betsy Loyless
Vice President for Policy
League of Conservation Voters
Peter Weitzel
Coordinator
Coalition of Journalists for Open Government
Greg Watchman
Executive Director
Government Accountability Project
Douglas Newcomb,
Director, Public Policy
Special Libraries Association
Lynnell Burkett
President
National Conference of Editorial Writers (NCEW)
Charles N. Davis
Executive Director
University of Missouri Freedom of Information Center
William Ferroggiaro
Writer and Consultant
Washington, D.C.
----- End of forwarded message from Patrice McDermott -----
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