Hopeful Signs For SEJ's FOI Efforts

 

 By JOSEPH A. DAVIS

 

That old feeling of helplessness is gone. The news media and public no longer see erosion of the First Amendment, the Freedom of Information Act and disclosure requirements in many environmental laws as inevitable ... and worse, unimportant.

Or so a recent vote in Congress signaled.

On May 18, the U.S. House of Representatives voted, 231 to 187, to stop two U.S. Environmental Protection Agency proposals to cut back the Toxics Release Inventory (TRI). The blank check that voters had once given industry and government to roll back the public's right to know had surprisingly bounced.

The House had reacted to a change in political winds now threatening to sweep some of them out of office. A decreasing number of elected officials now want to oppose open government in an open public vote.

What changed things: ink, votes and activism. More than 100,000 people and groups wrote comments to EPA's formal rulemaking docket on the TRI proposal, almost all opposing it. Many journalists wrote articles in the previous seven to eight months explaining why it matters that people get full information about the toxic threats they may be exposed to, as well as how EPA wanted to restrict that information. Senators, members of Congress and state attorney generals – not to mention firefighters and police, labor and health officials – spoke out. Even Wall Street investors – who think they have a right to know about the environmental performance and liabilities of the companies they own – complained in significant numbers.

The idea that good journalists are obligated to stay strictly neutral on stories where public access to information is an issue had, by 2006, started to look a bit obsolete – if only because the drying up of information had made it hard or impossible to write many of the stories journalists wanted to write.

TRI is a reporting tool that environmental journalists have long understood. Since it first started to yield data in 1989, it has been a steady source of annual stories, as well as a starting point for prizewinning investigative and enterprise pieces. That has changed in recent years, as EPA's annual "public data release" has become a pale shadow of its former self, and as EPA has moved from releasing it with publicity and huzzah to releasing it almost stealthily.

But when EPA announced in September 2005 that it planned to encourage more industries to use the numberless short form for "reporting" their toxic releases and let all industries slide by reporting biennially instead of annually, it was clear that the public would get considerably less data. The Society of Environmental Journalists opposed the EPA proposals, as did a coalition of other journalism groups, and in fact many publicinterest watchdog groups.

EPA showed no sign of backing down – at least, until the House fired a shot across its bow May 18. Industry groups have always asserted their right to "participate" in democracy by lobbying, often against the right of journalists and the public to access information about government decisions. Unless watchdogs "participate" by revealing the threats to these rights and arguing publicly for them, the United States may be governed in darkness.

The May 18 TRI turnaround was really just many signs of a changing mood in Congress.

That day, on the other side of the capitol, senators reintroduced a bill that would create a federal shield law for reporters protecting the identity of confidential sources. The bill (S 2831) had been rewritten from one introduced in 2005 ( HR 3323) with input from many news organizations and was considered a compromise that actually had some chance of passing.

The reporter's privilege it would create is a qualified one – which could be overcome in court by a strenuous showing of need. The interesting thing was that many of the bill's sponsors were Republicans, at a time when the GOP-controlled Justice Department was jailing reporters for protecting sources and talking about criminal prosecution of reporters who revealed unlawful wiretaps and secret CIA prisons.

Still pending before Congress are a number of bills that would beef up and fix some holes in the Freedom of Information Act, the key ones crafted by Sens. John Cornyn (R-Texas) and Patrick Leahy (D-Vt.). These were rolled out in 2005, and none have gone the distance yet to become law. They have stalled despite the fact that virtually no opposition to them has been expressed publicly (although the Justice Department's response was frosty).

The head of political steam behind those bills was building so high that the Bush White House, according to veteran observers, acted to preempt them by offering its own, more limited, FOIA fix proposal via executive order on Dec. 14, 2005. The beauty of that strategy, from the White House perspective, was that it put off any substantive action until after the 2006 election. We can expect to see agency plans for improving FOIA response start to come (or leak) out this summer. Meanwhile, although many offices and jobs have been renamed, few reports of improved FOI performance have surfaced.

So, despite some hope, it's hardly time to stop pushing for access. Just as May 2006 was ending, the Senate Environment Committee approved a bill, nominally aimed at finding security holes in wastewater systems, which could put coverage of sewer issues back into the Dark Ages. It would authorize grants to sewage agencies to discover their vulnerabilities – most of which have been glaringly obvious for decades: chlorine gas disinfectants, flammables like gasoline going down storm drains – plus storm events and industrial discharges.

The committee, however, rejected an amendment that would have encouraged utilities to fix the biggest vulnerability by switching to safer disinfectants. The bill takes a breathtaking step beyond any previous federal law by making it a criminal act for a reporter to write about almost anything that could go wrong with a sewage plant.

Joseph A. Davis is director of SEJ's WatchDog Project. (Note: you can get lots more specific information about these FOI issues and events by visiting the FOI area of SEJ's website at www.sej.org/foia/index.htm, especially the WatchDog newsletter.)

**From SEJ's quarterly newsletter SEJournal Summer, 2006