September 10, 2004

Hon. Duncan Hunter

Chairman, House Armed Services Committee

2265 Rayburn House Office Bldg.

Washington, D.C. 20515

Re:    FOIA Exemption for Land Remote Sensing Information
         in Senate's National Defense Authorization Act for FY 2005 (S 2400)

Dear Chairman Hunter:

In anticipation of the House and Senate conference on the National Defense Authorization Act for Fiscal Year 2005, the Society of Environmental Journalists and the National Association of Science Writers wish to express their serious concerns with Section 1034, "Nondisclosure of Certain Products of Commercial Satellite Operations," as included in the Senate version of the legislation (S 2400).

The Society of Environmental Journalists (SEJ) is the world's largest and oldest organization of individual working journalists covering environmental issues. Founded in 1990 and based in Jenkintown, Penn., SEJ consists of more than 1,300 journalists, educators, and students dedicated to improving the quality, accuracy, and visibility of environmental reporting. Working through its First Amendment Task Force and WatchDog Program, SEJ addresses freedom of information, right-to-know, and other news-gathering issues of concern to journalists reporting on environmental topics.

The National Association of Science Writers was founded in 1934 to promote the free flow of science news. It represents nearly 2,500 journalists and public information officers covering science, medicine, energy and the environment. Over the years, its officers have included both freelancers and employees of most of the major newspapers, wire services, magazines and broadcast outlets in the nation.

Land remote sensing information is of vital importance to any who would seek to understand the environment through research, and to journalists reporting on the environment and the earth sciences. If enacted, the provision could make it very hard for reporters to tell their audiences whether the rain forest is shrinking, whether San Diego is sprawling, or whether algae are taking over Lake Erie. Satellite images help track the effects of invasive species, soil erosion, strip mining, and illegal dumping, to mention only a few examples. Without information of this quality, the public can not take part in formulation of intelligent policies. Without it, we are flying blind.

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." The exemption would also include any "imagery and other product that is derived from such data." Further, the legislation would preempt state and local laws mandating disclosure by a state or local government. This overbroad and unnecessary provision would severely compromise government accountability and the public's right to know. Congress should reject this provision, as it is ripe for misuse and abuse.

SEJ wants to associate itself with a Sept. 3, 2004, letter to you from the Radio-Television News Directors Association, which said:

"the use of remote sensing imagery has become a routine and important part of newsgathering, facilitating more compelling news coverage. Commercial satellite imagery is routinely used in network and local news broadcasts in addition to print and web-based media. Recent uses include coverage of the Iraq and Afghanistan conflicts; nuclear and other WMD sites in Iran, Pakistan, India, Libya, North Korea, China, and other countries; flooding in Bangladesh and Eastern India; deforestation in Brazil; wildfires and tornadoes in the United States; and refugee crises in the Sudan, Rwanda, and other countries. The usefulness of such imagery in covering wars, refugees, disasters, genocides, illicit weapons, etc. is readily apparent. While advocating access to such imagery, however, RTNDA has expressly acknowledged that threats to the national security that are serious, direct and immediate would justify discrete government action to prevent particular imagery from being disseminated."

"Under the bill's terms, however, important non-confidential commercial satellite imagery, as well as products derived from such imagery, which the government has purchased, would be exempt from disclosure to the public. Indeed, the bill's provisions may actually preclude the government from releasing unclassified information it may wish to reveal. In essence, this new FOIA exemption would result in taxpayer dollars being used to preclude the media from adequately informing the public about matters of critical importance that in no way implicate the national security. For example, imagery of genocide or disaster sites, which the government may have obtained, may be denied to journalists investigating how the government responded to these calamities."

"Section 1034 is unnecessary. While the Senate suggests that "compelled release of such data and imagery by the United States under FOIA . . . may damage the national security," Exemption 1 of the FOIA already protects from disclosure properly classified records, release of which would cause some "damage" to the national security. Exemption 1 covers records that are: (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national security or foreign policy and (B) are in fact properly classified pursuant to such Executive order. Section 1034, however, would circumvent the well-established checks and balances that have been created under Exemption 1, and grant the Executive Branch astonishing leeway to prevent public release of unclassified material without appropriate oversight."

"The FOIA is a powerful ally of the public interest and those citizens who are interested in maintaining the accountability of our government and its officials, and the creation of a new exemption cannot be taken lightly. Congress should not undermine the public's interest in knowing what its government is up to in its quest to protect the nation."

These data are often used to design regulatory policies at both the federal and state levels. Without access to these data, the voting and taxpaying public is deprived of the means necessary to tell whether government is doing a good job and serving the public interest. This provision may have deep financial impacts on agriculture, forestry, transportation, fisheries, construction, and dozens of other industries. Enacting it without even holding hearings to examine these impacts seems the wrong way to legislate. It would be better to wait until hearings could be held, and the stakeholders informed of how Congress was affecting their interests.

Recommendation: We urge the conferees to drop Section 1034.

Sincerely,

Joseph A. Davis, Ph.D.

SEJ First Amendment WatchDog Project Director

on behalf of:

Dan Fagin

SEJ President

Deborah Blum

NASW President

Ken Ward Jr.

SEJ First Amendment Task Force Chair

Glennda Chui

NASW Freedom of Information Committee Chair

Robert McClure

SEJ Board of Directors Liaison

SEJ First Amendment Task Force

cc:

Pete Weitzel, Coalition of Journalists for Open Government

Patrice McDermott, American Library Association

Beth Parke, Exec. Director SEJ

Hon. Ike Skelton, Ranking, House Armed Services Committee

Hon. John Warner, Chairman, Senate Armed Services Committee

Hon. Carl Levin, Ranking, Senate Armed Services Committee