« Testing Find It | Main | Surreal Life II »

Surreal Life 1

8/17/04: American Library Association submits comments to the Dept. of Homeland Security objecting to the DHS's attempt to keep away from the public information which is specifically intended for public review under the National Envrionmental Policy Act.

It's a little complicated, but in essence, DHS claims they can withhold information not because they have authority to do so, but because they've defined the information they want to withhold in a way that matches the definition of Critical Infrastructure Information. Thing is, definitions in statutes (what DHS cites as authority) are just definitions. They don't give agencies the right to actually do anything. That's what the rest of a law is for.

As ALA points out:

In Section 6.2(A) of the proposed directive, DHS asserts authority to withhold CII “as defined in 6 U.S.C. 131(3)” of the Critical Infrastructure Information Act (CII Act).
However, this subsection does not grant DHS authority to withhold information; it
merely defines CII. Moreover, the subsection defines CII as “information not
customarily in the public domain and related to the security of critical infrastructure or protected systems.” Congress did create, in a subsequent section, a statutory exemption to FOIA for CII thus defined only if two further conditions are met, namely, if the CII

(1) “is voluntarily submitted to a covered Federal agency,” (6 U.S.C. 133(a)) and (2) is not independently obtained by “a State, local, or Federal Government
entity, agency, or authority, or any third party.” (6 U.S.C. 133(c))

Information contained in environmental-study documentation is customarily in the public domain as long as that information does not fall within one of the narrow exemptions under FOIA.