-------- 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]> ------------------ Colleagues, every map librarian organization should sign this, CUAC too. Larry Cruse UCSD ---------------------------------------------------------------------- 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 -----