McLoughlin House National Historic Site Act

Mr. President, last year when I voted to support passage of the Homeland Security Act, HSA, I voiced concerns about several flaws in the legislation. I called for the Administration and my colleagues on both sides of the aisle to monitor implementation of the new law and to craft corrective legislation in the 108th Congress. One of my chief concerns with the HSA was a subtitle of the act that granted an extraordinarily broad exemption to the Freedom of Information Act, FOIA, in exchange for the cooperation of private companies in sharing information with the government regarding vulnerabilities in the nation's critical infrastructure.

Unfortunately, the law that was enacted undermines Federal and State sunshine laws permitting the American people to know what their government is doing. Rather than increasing security by encouraging private sector disclosure to the government, it guts FOIA at the expense of our national security and public health and safety.

On March 16, we mark Freedom of Information Day, which falls on the anniversary of James Madison's birthday. Madison said, ``A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.'' As a long- time supporter of open government, I believe we must heed Madison's warning and revisit the potentially damaging limitations placed on access to information by the HSA.

I rise today to introduce legislation with my distinguished colleagues Senator Levin, Senator Jeffords, Senator Lieberman, and Senator Byrd to restore the integrity of FOIA. I want to thank my colleagues for working with me on this important issue of public oversight. This bill protects Americans' ``right to know'' while simultaneously providing security to those in the private sector who voluntarily submit critical infrastructure records to the newly created Department of Homeland Security, DHS.

Encouraging cooperation between the private sector and the government to keep our critical infrastructure systems safe from terrorist attacks is a goal we all support. But the appropriate way to meet this goal is a source of great debate--a debate that has been all but ignored since the enactment of the HSA last year.

The HSA created a new FOIA exemption for ``critical infrastructure information.'' That broadly defined term applies to information regarding a variety of facilities--such as privately operated power plants, bridges, dams, ports, or chemical plants--that might be targeted for a terrorist attack. In HSA negotiations last fall, House Republicans and the administration promoted language that they described as

necessary to encourage owners of such facilities to identify vulnerabilities in their operations and share that information with the Department of Homeland Security, DHS. The stated goal was to ensure that steps could be taken to ensure the facilities' protection and proper functioning.

In fact, such descriptions of the legislation were disingenuous. These provisions, which were eventually enacted in the HSA, shield from FOIA almost any voluntarily submitted document stamped by the facility owner as ``critical infrastructure.'' This is true no matter how tangential the content of that document may be to the actual security of a facility. The law effectively allows companies to hide information about public health and safety from American citizens simply by submitting it to DHS. The enacted provisions were called ``deeply flawed'' by Mark Tapscott of the Heritage Foundation in a November 20, 2002 Washington Post op-ed. ``Too Many Secrets,'' Washington Post, November 20, 2002, at A25. He argued that the ``loophole'' created by the law ``could be manipulated by clever corporate and government operators to hide endless varieties of potentially embarrassing and/or criminal information from public view.''

In addition, under the HSA, disclosure by private facilities to DHS neither obligates the private company to address the vulnerability, nor requires DHS to fix the problem. For example, in the case of a chemical spill, the law bars the government from disclosing information without the written consent of the company that caused the pollution. As the Washington Post editorialized on February 10, 2003, ``A company might preempt environmental regulators by `voluntarily' divulging incriminating material, thereby making it unavailable to anyone else.'' ``Fix This Loophole,'' Washington Post, February 10, 2003, at A20.

The new law also 1. shields the companies from lawsuits to compel disclosure, 2. criminalizes otherwise legitimate whistleblower activity by DHS employees, and 3. preempts any state or local disclosure laws.

The Restore FOIA bill I introduce today with Senators Levin, Jeffords, Lieberman, and Byrd is identical to language I negotiated with Senators Levin and Bennett last summer when the HSA was debated by the Governmental Affairs Committee. Senator Bennett stated in the Committee's July 25, 2003 mark up that the administration had endorsed the compromise. He also said that industry groups had reported to him that the compromise language would make it possible for them to share information with the government without fear of the information being released to competitors or to other agencies that might accidentally reveal it. The Governmental Affairs Committee reported out the compromise language that day. Unfortunately, much more restrictive House language was eventually signed into law.

The February 10 Post editorial called the Leahy-Levin-Bennett language ``a compromise that would accomplish the reasonable purpose'' of ``encouraging companies to share information with the government about infrastructure that might be vulnerable to terrorist attack without such broad harmful effects.'' Id. The Post editorial was titled, ``Fix This Loophole,'' which is exactly what my colleagues and I hope to accomplish with the introduction of this bill. Id.

The Restore FOIA bill would correct the problems in the HSA in several ways. First, it limits the FOIA exemption to relevant ``records'' submitted by the private sector, such that only those that actually pertain to critical infrastructure safety are protected. ``Records'' is the standard category referred to in FOIA. This corrects the effective free pass given to industry by the HSA for any information it labels ``critical infrastructure.''

Second, unlike the HSA, the Restore FOIA bill allows for government oversight, including the ability to use and share the records within and between agencies. It does not limit the use of such information by the government, except to prohibit public disclosure where such information is appropriately exempted under FOIA.

Third, it protects the actions of legitimate whistleblowers, rather than criminalizing their acts.

Fourth, it does not provide civil immunity to companies that voluntarily submit information. This corrects a flaw in the current law, which would prohibit such information from being used directly in civil suits by government or private parties.

Fifth, unlike the HSA, the Restore FOIA bill allows local authorities to apply their own sunshine laws. The Restore FOIA bill does not preempt any state or local disclosure laws for information obtained outside the Department of Homeland Security. Likewise, it does not restrict the use of such information by state agencies.

Finally, the Restore FOIA bill does not restrict congressional use or disclosure of voluntarily submitted critical infrastructure information. The HSA language was unclear on this point, and even the Congressional Research Service could not say for certain that members of Congress or their staff would not be criminally liable. Homeland Security Act of 2002: Critical Infrastructure Information Act, February 29, 2003, CRS Report for Congress, Order Code RL31762, at 14-15.

These changes to the HSA would accomplish the stated goals of the critical infrastructure provisions in the HSA without tying the hands of the government in its efforts to protect Americans and without cutting the public out of the loop.

The Administration has flip-flopped on how to best approach the issue of critical infrastructure information. The Administration's original June 18, 2002, legislative proposal establishing a new department carved out an FOIA exemption, in section 204, and required non- disclosure of any ``information'' ``voluntarily'' provided to the new Department of Homeland Security by ``non-Federal entities or individuals'' pertaining to ``infrastructure vulnerabilities or other vulnerabilities to terrorism'' in the possession of, or that passed through, the new department. Critical terms, such as ``voluntarily provided,'' were undefined.

The Judiciary Committee had an opportunity to query Governor Ridge about the Administration's proposal on June 26, 2002, when the Administration reversed its long-standing position and allowed him to testify in his capacity as the Director of the Transition Planning Office.

Governor Ridge's testimony at that hearing is instructive. He seemed to appreciate the concerns expressed by Members about the President's June 18 proposal and to be willing to work with us in the legislative process to find common ground. On the FOIA issue, he described the Administration's goal to craft ``a limited statutory exemption to the Freedom of Information Act'' to help ``the Department's most important missions [which] will be to protect our Nation's critical infrastructure.'' (June 26, 2002 Hearing, Tr., p. 24). Governor Ridge explained that to accomplish this, the Department must be able to ``collect information, identifying key assets and components of that infrastructure, evaluate vulnerabilities, and match threat assessments against those vulnerabilities.'' (Id., at p. 23).

I do not understand why some have insisted that FOIA and our national security are inconsistent. Before the HSA was enacted, the FOIA already exempted from disclosure matters that are classified; trade secret, commercial and financial information, which is privileged and confidential; various law enforcement records and information, including confidential source and informant information; and FBI records pertaining to foreign intelligence or counterintelligence, or international terrorism. These already broad exemptions in the FOIA were designed to protect national security and public safety and to ensure that the private sector can provide needed information to the government.

Prior to enactment of the HSA, the FOIA exempted from disclosure any financial or commercial information provided voluntarily to the government, if it was of a kind that the provider would not customarily make available to the public. Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc). Such information enjoyed even stronger nondisclosure protections than did material that the government requested. Applying this exception, Federal regulatory agencies safeguarded the confidentiality of all kinds of critical infrastructure information, like nuclear power plant safety reports (Critical

Mass, 975 F.2d at 874), information about product manufacturing processes and internal security measures (Bowen v. Food & Drug Admin., 925 F.2d 1225 (9th Cir. 1991), design drawings of airplane parts (United Technologies Corp. by Pratt & Whitney v. F.A.A., 102 F.3d 688 (2d Cir. 1996)), and technical data for video conferencing software (Gilmore v. Dept. of Energy, 4 F. Supp.2d 912 (N.D. Cal. 1998)).

The head of the FBI National Infrastructure Protection Center, NIPC, testified more than five years ago, in September, 1998, that the ``FOIA excuse'' used by some in the private sector for failing to share information with the government was, in essence, baseless. He explained the broad application of FOIA exemptions to protect from disclosure information received in the context of a criminal investigation or a ``national security intelligence'' investigation, including information submitted confidentially or even anonymously. [Sen. Judiciary Subcommittee on Technology, Terrorism, and Government Information, Hearing on Critical Infrastructure Protection: Toward a New Policy Directive, S. HRG. 105-763, March 17 and June 10, 1998, at p. 107]

The FBI also used the confidential business record exemption under (b)(4) ``to protect sensitive corporate information, and has, on specific occasions, entered into agreements indicating that it would do so prospectively with reference to information yet to be received.'' NIPC was developing policies ``to grant owners of information certain opportunities to assist in the protection of the information (e.g., by `sanitizing the information themselves') and to be involved in decisions regarding further dissemination by the NIPC.'' Id. In short, the former Administration witness stated:

Sharing between the private sector and the government

occasionally is hampered by a perception in the private

sector that the government cannot adequately protect private

sector information from disclosure under the Freedom of

Information Act, FOIA. The NIPC believes that this perception

is flawed in that both investigative and infrastructure

protection information submitted to NIPC are protected from

FOIA disclosure under current law. (Id.)

Nevertheless, for more than five years, businesses continued to seek a broad FOIA exemption that also came with special legal protections to limit their civil and criminal liability. That business wish list was largely granted in the Homeland Security Act.

At the Senate Judiciary Committee hearing with Governor Ridge, I expressed my concern that an overly broad FOIA exemption would encourage government complicity with private firms to keep secret information about critical infrastructure vulnerabilities, reduce the incentive to fix the problems and end up hurting rather than helping our national security. In the end, more secrecy may undermine rather than foster security.

Governor Ridge seemed to appreciate these risks, and said he was ``anxious to work with the Chairman and other members of the committee to assure that the concerns that [had been] raised are properly addressed.'' Id. at p. 24. He assured us that ``[t]his Administration is ready to work together with you in partnership to get the job done. This is our priority, and I believe it is yours as well.'' Id. at p. 25. This turned out to be an empty promise.

Almost before the ink was dry on the Administration's earlier June proposal, on July 10, 2002, the Administration proposed to substitute a much broader FOIA exemption that would (1) exempt from disclosure under the FOIA critical infrastructure information voluntarily submitted to the new department that was designated as confidential by the submitter unless the submitter gave prior written consent, (2) provide limited civil immunity for use of the information in civil actions against the company, with the likely result that regulatory actions would be preceded by litigation by companies that submitted designated information to the department over whether the regulatory action was prompted by a confidential disclosure, (3) preempt state sunshine laws if the designated information is shared with state or local government agencies, (4) impose criminal penalties of up to one year imprisonment on government employees who disclosed the designated information, and (5) antitrust immunity for companies that joined together with agency components designated by the President to promote critical infrastructure security.

Despite the Administration's promulgation of two separate proposals for a new FOIA exemption in as many weeks, in July, Director Ridge's Office of Homeland Security released The National Strategy for Homeland Security, which appeared to call for more study of the issue before legislating. Specifically, this report called upon the Attorney General to ``convene a panel to propose any legal changes necessary to enable sharing of essential homeland security information between the government and the private sector.'' (P. 33)

The need for more study of the Administration's proposed new FOIA exemption was made amply clear by its possible adverse environmental, public health and safety affects. Keeping secret problems in a variety of critical infrastructures would simply remove public pressure to fix the problems. Moreover, several environmental groups pointed out that, under the Administration's proposal, companies could avoid enforcement action by ``voluntarily'' providing information about environmental violations to the EPA, which would then be unable to use the information to hold the company accountable and also would be required to keep the information confidential. It would bar the government from disclosing information about spills or other violations without the written consent of the company that caused the pollution.

I worked on a bipartisan basis with many interested stakeholders from environmental, civil liberties, human rights, business and government watchdog groups to craft a compromise FOIA exemption that did not grant the business sector's wish-list but did provide additional nondisclosure protections for certain records without jeopardizing the public health and safety. At the request of Chairman Lieberman for the Judiciary Committee's views on the new department, I shared my concerns about the Administration's proposed FOIA exemption and then worked with Members of the Governmental Affairs Committee, in particular Senator Levin and Senator Bennett, to craft a more narrow and responsible exemption that accomplishes the Administration's goal of encouraging private companies to share records of critical infrastructure vulnerabilities with the new Department of Homeland Security without providing incentives to ``game'' the system of enforcement of environmental and other laws designed to protect our nation's public health and safety. We refined the FOIA exemption in a manner that satisfied the Administration's stated goal, while limiting the risks of abuse by private companies or government agencies.

This compromise solution was supported by the Administration and other Members of the Committee on Governmental Affairs and was unanimously adopted by that Committee at the markup of the Homeland Security Department bill on July 25, 2002. The compromise which I now introduce as a free standing bill would exempt from the FOIA certain records pertaining to critical infrastructure threats and vulnerabilities that are furnished voluntarily to the new Department and designated by the provider as confidential and not customarily made available to the public. Notably, the compromise FOIA exemption made clear that the exemption only covered ``records'' from the private sector, not all ``information'' provided by the private sector and thereby avoided the adverse result of government agency-created and generated documents and databases being put off-limits to the FOIA simply if private sector ``information'' is incorporated. Moreover, the compromise FOIA exemption clearly defined what records may be considered ``furnished voluntarily,'' which did not cover records used ``to satisfy any legal requirement or obligation to obtain any grant, permit, benefit (such as agency forbearance, loans, or reduction or modifications of agency penalties or rulings), or other approval from the Government.'' The FOIA compromise exemption further ensured that portions of records that are not covered by the exemption would be released pursuant to FOIA requests. This compromise did not provide any civil liability or antitrust immunity that could be used to immunize bad actors or frustrate regulatory enforcement action, nor did

the compromise preempt state or local sunshine laws.

Unfortunately, the version of the HSA that we enacted last November jettisoned the bipartisan compromise on the FOIA exemption, worked out in the Senate with the Administration's support, and replaced it with a big-business wish-list gussied up in security garb. The HSA's FOIA exemption makes off-limits to the FOIA much broader categories of ``information'' and grants businesses the legal immunities and liability protections they have sought so vigorously for over five years. This law goes far beyond what is needed to achieve the laudable goal of encouraging private sector companies to help protect our critical infrastructure. Instead, it ties the hands of the federal regulators and law enforcement agencies working to protect the public from imminent threats. It gives a windfall to companies who fail to follow federal health and safety standards. Most disappointingly, it undermines the goals of openness in government that the FOIA was designed to achieve. In short, the FOIA exemption in the HSA represents the most severe weakening of the Freedom of Information Act in its 36- year history.

In the end, the broad secrecy protections provided to critical infrastructure information in this bill will promote more secrecy, which may undermine rather than foster national security. In addition, the immunity provisions in the bill will frustrate enforcement of the laws that protect the public's health and safety.

Let me explain in greater detail. The FOIA exemption enacted in the HSA allows companies to stamp or designate certain information as critical infrastructure information, or ``CII,'' and then submit this information about their operations to the government either in writing or orally, and thereby obtain a blanket shield from FOIA's disclosure mandates as well as other protections. A Federal agency may not disclose or use voluntarily-submitted and CII-marked information, except for a limited ``informational purpose,'' such as ``analysis, warning, interdependency study, recovery, reconstitution,'' without the company's consent. Even when using the information to warn the public about potential threats to critical infrastructure, the bill requires agencies to take steps to protect from disclosure the source of the CII information and other ``business sensitive'' information.

The law also contains an unprecedented provision that threatens jail time and job loss to any government employee who happens to disclose any critical infrastructure information that a company has submitted and wants to keep secret. These penalties for using the CII information in an unauthorized fashion or for failing to take steps to protect disclosure of the source of the information are severe and will chill any release of CII information--not just when a FOIA request comes in, but in all situations, no matter the circumstance. Criminalizing disclosures not of classified information or national security related information, but of information that a company decides it does not want public--is an effective way to quash discussion and debate over many aspects of the government's work. In fact, under the HSA, CII information is granted more comprehensive protection under Federal criminal laws than classified information.

This provision of the law has potentially disastrous consequences. If an agency is given information from an internet service provider, ISP, about cyberattack vulnerabilities, agency employees will have to think twice about sharing that information with other ISPs for fear that, without the consent of the ISP to use the information, even a warning might cost their jobs or risk criminal prosecution.

This provision means that if a Federal regulatory agency needs to issue a regulation to protect the public from threats of harm, it cannot rely on any voluntarily submitted information--bringing the normal regulatory process to a grinding halt. Public health and law enforcement officials need the flexibility to decide how and when to warn or prepare the public in the safest, most effective manner. They should not have to get ``sign off'' from a Fortune 500 company to do so.

While the HSA risks making it harder for the government to protect American families, it makes it much easier for companies to escape responsibility when they violate the law by giving them unprecedented immunity from civil and regulatory enforcement actions. Once a business declares that information about its practices relates to critical infrastructure and is ``voluntarily'' provided, it can then prevent the Federal Government from disclosing it not just to the public, but also to a court in a civil action. This means that an agency receiving CII- marked submissions showing invasions of employee or customer privacy, environmental pollution, or government contracting fraud will be unable to use that information in a civil action to hold that company accountable. Even if the regulatory agency obtains the information necessary to bring an enforcement action from an alternative source, the company will be able to tie the government up in protracted litigation over the source of the information.

For example, if a company submits information that its factory is leaching arsenic in ground water, that information may not be turned over to local health authorities to use in any enforcement proceeding nor turned over to neighbors who were harmed by drinking the water for use in a civil tort action. Moreover, even if EPA tries to bring an action to stop the company's wrongdoing, the ``use immunity'' provided in the HSA will tie the agency up in litigation making it prove where it got the information and whether it is tainted as ``fruit of the poisonous tree''--i.e., obtained from the company under the ``critical infrastructure program.''

Similarly, if the new Department of Homeland Security receives information from a bio-medical laboratory about its security vulnerabilities, and anthrax is released from the lab three weeks later, the Department will not be able to warn the public promptly about how to protect itself without consulting with and trying to get the consent of the laboratory in order to avoid the risk of job loss or criminal prosecution for a non-consensual disclosure. Moreover, if the laboratory is violating any state, local or federal regulation in its handling of the anthrax, the Department will not be able to turn over to another Federal agency, such as the EPA or the Department of Health and Human Services, or to any State or local health officials, information or documents relating to the laboratory's mishandling of the anthrax for use in any enforcement proceedings against the laboratory, or in any wrongful death action, should the laboratory's mishandling of the anthrax result in the death of any person. The law specifically states that such CII-marked information ``shall not, without the written consent of the person or entity submitting such information, be used directly by such agency, any other Federal, State, or local authority, or any third party, in any civil action arising under Federal or State law if such information is submitted in good faith.'' [H.R. 5710, section 214(a)(1)(C)]

Most businesses are good citizens and take seriously their obligations to the government and the public, but this ``disclose-and- immunize'' provision is subject to abuse by those businesses that want to exploit legal technicalities to avoid regulatory guidelines. The HSA lays out the perfect blueprint to avoid legal liability: funnel damaging information into this voluntary disclosure system and pre-empt the government or others harmed by the company's actions from being able to use it against the company. This is not the kind of two-way public-private cooperation that our country needs.

The scope of the information that is covered by the new HSA FOIA exemption is overly broad and undermines the openness in government that FOIA was intended to guarantee. Under this law, information about virtually every important sector of our economy that today the public has a right to see can be shut off from public view simply by labeling it ``critical infrastructure information.'' Prior to enactment of the HSA, under FOIA standards, courts had required federal agencies to disclose 1. pricing information in contract bids so citizens can make sure the government is wisely spending their taxpayer dollars; 2. compliance reports that allow constituents to insist that government contractors comply with federal equal

opportunity mandates; and 3. banks' financial data so the public can ensure that federal agencies properly approve bank mergers. Without access to this kind of information, it will be harder for the public to hold its government accountable. Under the HSA, all of this information may be marked CII information and kept out of public view.

The HSA FOIA exemption goes so far in exempting such a large amount of material from FOIA's disclosure requirements that it undermines government openness without making any real gains in safety for families in Vermont and across America. We do not keep America safer by chilling Federal officials from warning the public about threats to their health and safety. We do not ensure our nation's security by refusing to tell the American people whether or not their federal agencies are doing their jobs or their government is spending their hard earned tax dollars wisely. We do not encourage real two-way cooperation by giving companies protection from civil liability when they break the law. We do not respect the spirit of our democracy when we cloak in secrecy the workings of our government from the public we are elected to serve.

The argument over the scope of the FOIA and unilateral executive power to shield matters from public scrutiny goes to the heart of our fundamental right to be an educated electorate aware of what our government is doing. The Rutland Herald got it right in a November 26, 2002 editorial that explained: ``The battle was not over the right of the government to hold sensitive, classified information secret. The government has that right. Rather, the battle was over whether the government would be required to release anything it sought to withhold.''

We need to fix this troubling restriction on public accountability. Exempting the new Department from laws that ensure responsibility to the Congress and to the American people makes for a tenuous start not the sure footing we all want for the success and endurance of this new Department. I urge my colleagues to support the Restoration of Freedom of Information Act of 2003.

I ask unanimous consent to print the editorials I mentioned and several letters of support of the Restore FOIA bill in the Record.

Mr. President, today I join with Senators Leahy, Byrd, Jeffords, and Lieberman to introduce the Restore Freedom of Information Act, Restore FOIA, that will provide the public with access to information, while at the same time ensuring that information voluntarily submitted to the government by companies is not improperly disclosed. In order to ensure public access and limit improper disclosure, we need to reexamine some aspects of the Homeland Security Act, HSA, which was rushed through Congress last year, dropping several carefully-crafted, bipartisan measures which had been adopted by the Senate Governmental Affairs Committee, along the way. Dropping those measures left ambiguities in the law that need to be clarified, and today's bill is an attempt to make those clarifications and address certain problems that could otherwise result.

The issue this bill addresses is public access to information in the possession of the Homeland Security Department. Although some seem to want to shroud all homeland security efforts in secrecy, as Judge Damon Keith, writing for the U.S. Sixth Circuit of Appeals, recently warned ``Democracies die behind closed doors.'' The principles of open government and the public's right to know are cornerstones of our democracy. We cannot sacrifice those principles in the name of protecting them.

One of the reasons that I voted against the Homeland Security Act last year was because the final bill dropped a bipartisan provision, passed by the Senate Governmental Affairs Committee, clarifying how the new Department of Homeland Security, DHS, should comply with the Freedom of Information Act, FOIA. The final bill substituted a poorly drafted provision that could inappropriately close the door on persons seeking unclassified information from the Department related to critical infrastructure.

What is critical infrastructure? Critical infrastructure is the backbone that holds our country together and

makes it work--our roads, computer grids, telephones, pipelines, water treatment plants, utilities, and other facilities essential to a fully functioning Nation. It so happens that, in the United States, much of our critical infrastructure is controlled by private entities, often privately owned or publicly traded corporations. To strengthen existing protections for these facilities, the Federal Government asked the companies that own them to submit unclassified information about their facilities to assist the government in evaluating them, identifying possible problems, and designing stronger protections from terrorist attack, natural disasters, or other threats to homeland security.

Some companies asked to voluntarily submit this information feared that it might be improperly disclosed, and sought a new exemption from the Federal Freedom of Information Act, FOIA, to prohibit disclosure of so-called ``critical infrastructure information.'' Reporters, public interest groups, and others feared that, if this FOIA exemption were granted, companies could send important environmental and safety information to DHS under the general heading of ``critical infrastructure information'' and thereby put this information out of the public's reach. To bring these sides together, last July, Senators Bennett, Leahy and I worked out a bipartisan FOIA compromise that codified existing case law with regard to companies voluntarily submitting information. At the Senate Governmental Affairs Committee mark-up of the homeland security legislation, Senator Bennett said that the Administration supported our compromise, but the language was ultimately dropped from the final Homeland Security Act. As a result, the media, public interest groups, and others continue to fear that companies may be hiding important health and safety information that has long been public and should be public behind the mask of ``critical infrastructure.''

To rectify this situation, today we are introducing a bill that would change the existing HSA language in several important ways. First, our bill defines the key term, ``critical infrastructure,'' in a more focused way than the overly broad language in the HSA. To do that, our bill draws from language in existing case law, that has already been tested by the courts. The existing HSA language, it interpreted broadly, could expand the prohibition on disclosing critical infrastructure information to include virtually every aspect of a company's operations, denying public access to a great deal of health and safety information that the public has a right to know. If this expansive interpretation was not the intent of the bill's drafters, then they should be willing to accept our court-tested language.

A second important change that our bill would make in the existing HSA involves the issue of civil immunity for companies that violate the law. As currently worded, the HSA seems to suggest that companies which voluntarily submit to DHS critical infrastructure information indicating that the company is in violation of public health or safety regulations may gain protection from legal action in court to halt or penalize this wrongdoing, even if the information shows that the company is acting negligently. For example, the current HSA provisions could lead to the disturbing situation where DHS learns, through a critical infrastructure submission, that a company is leaking polluted sludge into a nearby waterway in violation of environmental restrictions, but is barred from going to court to stop the pollution because the law appears to prohibit the agency's use of the critical infrastructure information in a civil action. Our bill would eliminate the possibility that the HSA would provide companies with civil immunity under these circumstances.

A third key problem with the existing HSA language is that it includes a provision that could send a Federal whistleblower who discloses critical infrastructure information, even to an appropriate authority, to prison. The language is clear that if a DHS employee discloses unclassified critical infrastructure information, even when acting as a whistleblower who reveals the information to Congress in an act of conscience or patriotism, that whistleblower could wind up in jail. My colleague, Senator Leahy, describes a whistleblower who works at the FAA who blew the whistle on government collusion to coverup failures by airlines to meet tests on airline preparedness. That whistleblower could have ended up in jail had he blown the whistle under today's law. A year in jail is quite a deterrent for a Federal employee who is thinking about blowing the whistle, and we have never before threatened Federal whistleblowers with jail terms. It is a bad idea, and it is counterproductive to homeland safety.

There are other troubling provisions in the current HSA law as well, equally detrimental to the public's right to know. For example, the HSA exempts all communication of critical infrastructure information from the open meeting and other sunshine requirements of the Federal Advisory Committee Act, and places critical infrastructure information outside restrictions on ex parte contacts. The HSA also pre-empts state and local sunshine laws, an undue intrusion on the power of the States. The bill we are introducing today would strike all of these unnecessary provisions, and create in their stead a narrow FOIA exemption that balances the prohibition against improper disclosures of critical infrastructure information with the public's right to know.

Finally, I would like to include in the Record two examples of situations that could occur under the language in the HSA but would not occur under our bill. These disturbing examples were provided by Dr. Rena Steinzor, Professor at the University of Maryland School of Law, on behalf of the center for Progressive Regulation.

Case Study Number 1 is the following:

A large Midwest utility decides to replace an old coal burning electric generation unit with a new one. The new unit, much larger than the first, will produce significantly greater air pollution emissions. The company could mitigate these increases by installing additional pollution control equipment, but decides it does not wish to incur the expense. It begins construction and simultaneously reports its plans to the DHS as ``critical infrastructure information,'' so Federal security experts will know about its increased capacity to generate electricity.

A Department of Homeland Security employee, visiting the plant to consult on government purchases of power during emergency situations, notices readings on internal gauges reflecting the dramatically increased emissions. She telephones EPA to report the situation. EPA issues a Notice of Violation to the company, and threatens to bring an action for civil penalties, but is instructed to desist by DHS officials who inform EPA that the HSA prohibits disclosing the information provided to the agency in court and that DHS wants to list the company as an emergency supplier capable of providing expanded electricity production in an upcoming report to Congress. EPA drops its enforcement action, and the DHS employee not only loses her job but also is prosecuted criminally.

Case Study Number 2 is the following:

Lobbyists representing companies that provide goods and services to the Department of Homeland Security routinely submit materials describing their companies' products in glowing terms. They arrange repeated trips for government purchasing agents to exotic locations under the guise of briefing them regarding the technical aspects of the products. All of this information is designated as critical infrastructure by the companies, and is therefore protected from disclosure and oversight by the media or possibly even individual members of Congress who could see the information but not reveal it.

The Homeland Security Act was never intended to protect polluters or special interests from public scrutiny. But as these examples demonstrate, that is exactly what could happen if the current, vague language in the law is not corrected. The bill we are introducing today would make the needed corrections.

On January 17, 2003 at his confirmation hearing before the Governmental Affairs Committee, I questioned Governor Ridge about these problems with the current wording of the Homeland

Security Act. I asked him whether the HSA could have the unintended consequences of providing protections for wrongdoing while impeding access to necessary information to protect public health and safety. Governor Ridge replied: ``[T]hat certainly wasn't the intent, I am sure, of those who advocated the Freedom of Information Act exemption, to give wrongdoers protection or to protect illegal activity, and I will certainly work with you to clarify that language.'' If that was not the intent, then let us fix the vague, and potentially dangerous provisions that are in this bill.

I would also note, for the record, that many organizations have endorsed our bill including the following:

American Association of Law Libraries, American Civil Liberties Union, American Immigration Lawyers Association, American Library Association, American-Arab Anti-Discrimination Committee, Americans for Democratic Action, American Society of Magazine Editors, American Society of Newspaper Editors, Arab American Institute, Asian American Legal Defense and Education Fund, Associated Press Managing Editors, Association of Research Libraries, Center for Democracy and Technology, Children's Environmental Health Network, Clean Production Network, Common Cause, Communications Workers of America, Cook Inlet Keeper, Council on American-Islamic Relations, Council on Professional Association of Federal Statistics, Electronic Frontier Foundation, Electronic Privacy Information Center, Environmental Defense, Federation of American Scientists, Freedom of Information Center, Friends of the Earth, Fund for Constitutional Government, Government Accountability Project, Greenpeace, Magazine Publishers of America, Maryland Pesticide Network, National Federation of Press Women, National Newspaper Association, National Press Club, Natural Resources Defense Council, New Jersey Work Environment Council, Newsletter & Electronic Publishers Association, Newspaper Association of America, Ohio Valley Environmental Coalition, OMB Watch, Pesticide Action Network, North America Powder River Basin Resource Council, Privacy Activism, Privacy Times, Project on Government Oversight, Radio- Television News Directors Association, Reporters Committee for Freedom of the Press, Sierra Club, Silicon Valley Toxics Coalition, Society of Professional Journalists, Strategic Counsel on Corporate Accountability, U.S. Public Interest Research Group, University of Missouri School of Journalism, West Harlem Environmental Action Working Group on Community Right-to-Know.

Mr. President, I rise today to introduce ``The Pathways to Self-Sufficiency Act of 2003.'' I am pleased to be joined in introducing this important legislation by my colleagues Senators Baucus, Bingaman and Rockefeller.

This legislation is based upon the highly esteemed Maine program called ``Parents as Scholars''. This program, which uses State Maintenance of Effort, MOE, dollars to pay TANF-like benefits to those participating in post-secondary education, is a proven success in my state and is a wonderful foundation for a national effort.

We all agree that the 1996 welfare reform effort changed the face of this Nation's welfare system to focus it on work. To that end, I believe that this legislation bolsters the emphasis on ``work first''. Like many of my colleagues, I agree that the shift in the focus from welfare to work was the right decision, and that work should be the top priority. However, for those TANF recipients who cannot find a good job that will put them on the road toward financial independence, education might well be the key to a successful future of self-sufficiency.

As we have seen in Maine that education has played a significant role in breaking the cycle of welfare and giving parents the skills necessary to find better paying jobs. And we all know that higher wages are the light at the end of the tunnel of public assistance.

``The Pathways to Self-Sufficiency Act of 2003'' provides States with the option to allow individuals receiving Federal TANF assistance to obtain post-secondary or vocational education. This legislation would give States the ability to use Federal TANF dollars to give those who are participating in vocational or post-secondary education the same assistance as they would receive if they were working.

We all know that supports like income supplements, child care subsidies, and transportation assistance among others, are essential to a TANF recipient's ability to make a successful transition to work. The same is true for those engaged in longer term educational endeavors. This assistance is especially necessary for those who are undertaking the challenge and the financial responsibility of post-secondary education, in the hopes of increasing their earning potential and employability. The goal of this program is to give participants the tools necessary to succeed into the future so that they can become, and remain, self-sufficient.

Choosing to go to college requires motivation, and graduating from college requires a great deal of commitment and work--even for someone who isn't raising children and sustaining a family. These are significant challenges, and that's even before taking into consideration the cost associated with obtaining a Bachelor's degree, with a four year program at the University of Maine currently costing almost $25,000. This legislation would provide those TANF recipients who have the ability and the will to go to college the assistance they need to sustain their families while they get a degree.

The value of promoting access to education in this manner to get people off public assistance is proven by the success of Maine's ``Parents as Scholars'', PaS, program. Maine's PaS graduates earn a median wage of $11.71 per hour after graduation up from a median of $8.00 per hour prior to entering

college. When compared to the $7.50 median hourly wage of welfare leavers in Maine who have not received a post-secondary degree, PaS graduates are earning, on average, $160 more per week. That translates into more than $8,000 per year--a significant difference.

Furthermore,the median grade point average for PaS participants while in college was 3.4 percent,and a full 90 percent of PaS participants' GPA was over 3.0. These parents are giving their all to pull their families out of the cycle of welfare.

Recognizing that work is a priority under TANF, and building upon the successful Maine model, the ``Pathways to Self-Sufficiency Act'' requires that participants in post-secondary and vocational education also participate in work. During the first two years of their participation in these education programs, students must participate in a combination of colas time, study time, employment or work experience for at lest 24 hours per week--the same hourly requirement that the President proposes in his welfare reauthorization proposal.

During the second two years--for those enrolled in a four year program--the participant must work at least 15 hours in addition to class and study time, or engage in a combination activities, including colas and study time work or work experience, and training, for an average of 30 hours per week. And all the while, participants must maintain satisfactory academic progress as defined by their academia institution.

The bottom line is that if we expect parents to move from welfare to work and stay in the work force, we must give them the tools to find good jobs. For some people that means job training, for others that could mean dealing with a barrier like substance abuse or domestic violence, and for others, that might mean access to education that will secure them a good job and that will get them off and keep them off of welfare.

The experience of several ``Parents as Scholar'' graduates were recently captured in a publication published by the Maine Equal Justice Partners, and their experiences are testament to the fact that this program is a critically important step in moving towards self- sufficiency. In this report one Las graduate said of her experience, ``If it weren't for `Parents as Scholars' I would never have been able to attend college, afford child care, or put food on the table. Today, I would most likely be stuck in a low-wage job I hated barely getting by . . . I can now give my children the future they deserve.''

Another said, ``By earning my Bachelor's degree, I have become self sufficient. I was a waitress previously and would never have been able to support my daughter and I on the tips that I earned. I would encourage anyone to better their education if possible.

These are but a few comments from those who have benefited from access to post-secondary education. And,while these women have been able to attend college and pursue good jobs thanks tori the good will and the support of the people of Maine, Las has strained the state's budget. Giving States the option use Federal dollars to support these participants will make a tremendous difference in their ability to sustain these programs which have proven results. In Maine, nearly 90 percent of working graduates have left TANF permanently--and isn't that our ultimate goal?

I look forward to working with my colleagues to include this legislation in the upcoming welfare reauthorization. It is a critical piece of the effort to move people from welfare to work permanently and it has been missing from the federal program for too long.

Mr. President, I am honored today to join Senator Gregg in introducing the Public Safety Employer-Employee Cooperation Act of 2003.

This bill is an important bipartisan effort to help protect our Nation's public safety officers on the job. The events of September 11 made clear that our Nation's true heroes are our fire fighters, police officers, and emergency medical technicians. We will never forget the sacrifices they made at the World Trade Center and the Pentagon. The photographs of tired, dust-covered, fire fighters confronting the unimaginable horror of that day are permanently emblazoned in our minds.

Thousands of public safety officers throughout the country serve in some of the country's most dangerous, strenuous and stressful jobs today. Every year, more than 80,000 police officers and 75,000 firefighters are injured on the job. An average of 160 police officers and nearly 100 firefighters die in the line of duty each year. It is a matter of basic fairness to give these courageous men and women the same rights that have long been enjoyed by other workers.

For more than 60 years, collective bargaining has enabled labor and management to work together to improve job conditions and increase productivity. Through collective bargaining, labor and management have led the way together on many important improvements in today's workplace--especially with regard to health and pension benefits, paid holidays and sick leave, and workplace safety.

Collective bargaining in the public sector, once a controversial issue, is now widely accepted. It has been widespread, since at least 1962, when President Kennedy signed an Executive order granting these basic rights to Federal employees. Congressional employees have had these rights since enactment of the Congressional Accountability Act almost a decade ago. It is long past time for State and local government employees to have Federal protection for the basic right to participate in collective bargaining agreements with their employers.

The bill we are introducing today extends this protection to firefighters, police officers, correctional officers,

paramedics and emergency medical technicians. The bill guarantees the fundamental rights necessary for collective bargaining--the right to form and join a union; the right to bargain over hours, wages and working conditions; the right to sign legally enforceable contracts; and the right to a means to resolve impasses in negotiations.

The benefits of this bill are clear and compelling. It will lead to safer working conditions for public safety officers. States that lack these collective bargaining laws have death rates for fire fighters nearly double the rate in States in which such bargaining takes place. In 1993, fire fighters in nine of the 10 States with the highest fire fighter death rates did not have collective bargaining protection. Because public safety employees serve on the front lines in providing firefighting services, law enforcement services, and emergency medical services, they know what it takes to create safer working conditions. They should have a voice in decisions that can literally make a life- or-death difference on the job.

This bill will benefit all of us, not just public safety officers. When workers who actually do the job are able to provide advice on their working conditions, there are fewer injuries, increased morale, better information on new technologies, and more efficient ways to provide the services, all of which improve the safety and security of the communities that our public safety officers serve.

This bill will also save money for States and local communities. Experience has shown that when public safety officers can discuss workplace conditions with management, partnerships and cooperation develop and lead to improved labor-management relations and better, more cost-effective services. A study by the International Association of Fire Fighters shows that States and municipalities that give firefighters the right to discuss workplace issues have lower fire department budgets than States without such laws.

This bill accomplishes its goals in a reasonable way. It requires that public safety officers be given the opportunity to bargain collectively, but it does not require that employers adopt agreements, and it does not regulate the content of any agreements that are reached.

In States with collective bargaining laws that substantially provide the modest minimum standards in the bill--as a majority of States already do--those States will be unaffected by this legislation. Where States do not have such laws, they may choose to enact them, or to allow the Federal Labor Relations Authority to establish procedures for bargaining between public safety officers and their employers. This approach respects existing State laws, and gives each state the authority to choose the way in which it will comply with the requirements of this legislation. States will have full discretion to make decisions on the implementation and enforcement of the basic rights set forth in this proposal.

This amendment will not supersede State laws which already adequately provide for the exercise of--or are more protective of--collective bargaining rights by public safety officers. It is a matter of basic fairness for these courageous men and women to have the same rights that have long been enjoyed by other workers. They put their lives on the line to protect us every day. They deserve to have an effective voice on the job, and I urge the Senate to approve this important bipartisan legislation.

Mr. President, I rise today to introduce the Personnel Excellence for Children with Disabilities Act of 2003 to ensure high quality personnel to serve students with disabilities.

I have long worked to improve the quality of teaching in America's classrooms for the simple reason that well-trained and well-prepared teachers, faculty, principals and administrators are critical to improving the educational performance and achievement of students.

As Congress turns to the reauthorization of the Individuals with Disabilities Education Act, IDEA, the focus shifts to increasing support for both new and veteran special education teachers, school principals, and the higher education faculty who train prospective special education teachers.

There are currently an estimated 6 million children who receive special education services. Yet, there are about 70,000 special education teaching vacancies in schools nationwide. The President's 2002 Commission on Excellence in Special Education report stated that ``the growing shortage of special education teachers alarms this Commission.'' Moreover, an estimated 600,000 IDEA students are taught by unqualified or underqualified teachers nationwide. In some urban and rural areas, close to half of special education teachers are unqualified.

I am joined by Senator Kennedy, a leader in improving education for all children, in introducing legislation today which would address and improve current conditions by enhancing personnel preparation, recruitment and retention, support and training for beginning special educators, as well as professional development for special educators, general educators, principals, paraprofessionals, and related services personnel.

The Personnel Excellence for Children with Disabilities Act modifies and strengthens the current State Improvement Grant program to focus solely on personnel and professional development, including support to school districts to meet the personnel requirements under IDEA.

Our legislation also establishes two grant programs. One would fund partnerships of school districts, institutions of higher education, and elementary and secondary schools that focus on meeting the needs of beginning special educators, through an additional 5th year clinical learning opportunity or the creation or support of professional development schools. Professional development schools seek to improve the professional status of teaching through a renewal of schools and preservice teacher education, in-service education of veteran teachers, and research to add to the knowledge base. The other grant program seeks to ensure that general educators, including principals and administrators, have the skills, knowledge, and leadership training to improve results for children with disabilities in their schools and classrooms. Currently, approximately half of students with disabilities spend 79 percent or more of their time in regular classes, according to the Department of Education's Annual Report to Congress for 2001. Only 20 percent are served outside of regular classes for 60 percent or more of the time.

Lastly, our legislation enhances the personnel preparation programs under the current IDEA Section 673. These programs provide grants to institutions of higher education to enhance the preparation of special educators.

In sum, the Personnel Excellence for Children with Disabilities Act seeks to enhance: the teaching skills of special educators, general educators, early intervention personnel, paraprofessionals and related services personnel; the leadership skills of principals; collaboration among special educators, general educators, and other personnel; mentoring and other induction support for beginning special educators; and training programs at institutions of higher education. The Act would also boost the ability of educators and personnel to: involve and work with parents, implement positive behavioral interventions; improve early intervention services for infants, toddlers, and preschoolers; and provide transition services and postsecondary opportunities. It would also improve their ability to: use classroom-based techniques to identify student potentially eligible for services; use technology to enhance learning of children with disabilities and communicate with parents; and ensure an effective IEP process.

The time for action is now because 98 percent of school districts report that meeting the growing demand for special education teachers is a top priority. Annual attrition rates for special education teachers are over 13 percent: 6 percent for those who leave the field entirely; and an additional 7.4 percent who transfer to general education.

More than 200,000 new special education teachers will be needed in the next five years, according to U.S. Department of Education estimates. Investing in personnel preparation is critical for addressing these needs which, in turn, will improve outcomes and results for children with disabilities.

I urge my colleagues to join us in this essential endeavor by cosponsoring this legislation and working for its inclusion in the reauthorization of the IDEA.

Mr. President, I ask unanimous consent that the text of this legislation be printed in the Record.