[Congressional Record Volume 161, Number 121 (Wednesday, July 29, 2015)]
[Senate]
[Pages S6124-S6125]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





                            FOIA PROVISIONS

  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.
  Mr. THUNE. I thank Senator Leahy for his interest in these matters, 
and I am pleased we were able to work out an agreement to strike these 
provisions and move forward with consideration of the DRIVE Act. I look 
forward to working with you and Senator Grassley, the chairman of the 
Judiciary Committee, on any future proposals to amend the Freedom of 
Information Act.
  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.
  Mr. THUNE. For the reasons you stated, I agree that if enacted into 
law, nothing in Section 32003 exempts or is intended to exempt 
information under the Freedom of Information Act. I would, however, 
just offer two comments to explain to my colleague the rationale for 
and limits of the modified provision. First, the commerce committee has 
received information from several objective sources, including the 
Government Accountability Office, the Department of Transportation's 
Office of Inspector General, and the law enforcement community, 
identifying concerns with the accuracy of the scoring analysis 
performed by FMCSA as part of the CSA program. As noted by GAO, the 
manner in which scores are calculated under the program ``creates the 
likelihood that many SMS scores do not represent an accurate or precise 
safety assessment for a carrier.'' Accordingly, the bill proposes to 
withdraw this potentially misleading analysis from public review 
temporarily, until the program is reviewed and corrected. Nevertheless, 
as underscored by subsection 32003(c), the underlying ``[i]nspection 
and violation information'' submitted to FMCSA under the program 
``shall remain available for public viewing.''
  The PRESIDING OFFICER. The majority leader.

[[Page S6125]]



                          ____________________