FOIA Provisions
Floor Speech
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Mr. LEAHY. Mr. President, I ask unanimous consent to engage in a colloquy with Senator Thune, chairman of the commerce committee, regarding the DRIVE Act and the Freedom of Information Act, FOIA.
I want to thank Chairman Thune for working with me to remove four provisions in the DRIVE Act aimed at carving out information from disclosure under FOIA, three of which were in titles of the bill falling under the commerce committee's jurisdiction. The removal of these four provisions is reflected in the second-degree amendment filed by Senator Inhofe, amendment No. 2533, to the McConnell substitute amendment. FOIA is our Nation's premier open government law and the foundation on which all our sunshine and transparency policies rest. It remains an indispensable tool for Americans to obtain information affecting public policy, consumer safety, the environment, and public health. The Freedom of Information Act falls under the exclusive jurisdiction of the Senate Judiciary Committee, and changes affecting this law should not be enacted without full and careful consideration by the Judiciary Committee.
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Mr. LEAHY. I also want to draw particular attention to Section 32003, related to the Federal Motor Carrier Safety Administration's, FMCSA's, compliance, safety, and accountability system, CSA. The CSA system is designed to evaluate the safety and compliance performance of motor carriers by using data from inspections, crashes, compliance reviews, and the Federal motor carrier census to come up with a safety measurement system, SMS, score for each motor carrier in seven behavior analysis and safety improvement categories, BASICs. It is my understanding that these scores are currently available to the public via FMCSA's Web site. It is also my understanding that, as originally drafted, this bill would have prohibited FMCSA from making these scores available to the general public via its Web site or via a FOIA request while FMCSA evaluates and reforms the methodology underlying these scores.
I have serious concerns about removing this information from public view, even for a short period of time. The safety score is one of the tools we give consumers and other stakeholders to help fully evaluate motor carriers. While I prefer that these scores remain easily accessible on FMSCA's Web site for the general public while the methodology is reviewed, it is critical that the scores remain available under FOIA. Even if the scores are removed from the Web site while the methodology is reviewed, under the provision, they will remain available to law enforcement and regulators for use in overseeing the industry. For this reason alone, as well as many others, we should not withhold that information from public scrutiny. Moreover, the Judiciary Committee did not review this new proposed exemption and has not had time to fully consider the potential effects of this exclusion.
I thank Senator Thune for working with me to remove this FOIA exemption. Originally the bill language stated that none of the score information ``may be made available to the general public (including through requests under Section 552 of title 5, United States Code [the FOIA statute]).'' The Inhofe second degree amendment strikes the phrase ``including through requests under Section 552 of title 5, United States Code'' in its entirety. Under the OPEN FOIA Act of 2009, no new FOIA exemption under 5 U.S.C 552(b)(3), is effective unless it specifically cites to 5 U.S.C 552(b)(3). Removing the citation to the FOIA statute makes clear that, while the scores may no longer be routinely published and easily accessible to the general public via FMSCA's Web site until they have been reviewed and reformed, the scores are still subject to disclosure pursuant to a FOIA request, unless an existing exemption is found to apply.
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