Bucking the trend to break down walls between law enforcement agencies, the U.S. Capitol Police (search) has asked to be able to decline information requests from the executive branch.
The Capitol Police insist this power is important to protect sensitive information from Freedom of Information Act (search) requests. The executive branch is subject to FOIA requests, but the legislative branch, of which the Capitol Police is a part, is not.
The small law enforcement agency said that the measure has nothing to do with not wanting to cooperate, but is instead a well-thought out and important safety precaution. The language requested by the police force allowing the withholding of information was successfully included in legislative branch appropriations that passed the House.
"The reason behind it is since the Capitol Police falls in the legislative branch, any information that we give to the executive branch could be released under a FOIA request. ... It's basically a precaution for the Capitol Police or any other agency not to release information and be received or be used by people that shouldn’t have the information."
The Capitol Police force is an independent entity charged with guarding the Capitol complex, which includes the House and Senate office buildings, as well as with protecting the individual members of the House and Senate — both in Washington, D.C., and throughout the country.
Some homeland security experts say they find the measure highly unusual and unnecessary.
"Wasn’t the whole point of our 9/11 that we needed more communication among various agencies?" asked Paul Rosenzweig, senior legal research fellow at the Heritage Foundation (search), referring to the Sept. 11, 2001, terror attacks that led to the desire for better communication among law enforcement and intelligence agencies.
Jennifer Hing, press secretary for Rep. Jack Kingston, R-Ga., the author of the legislation, defended the language by saying that controlling information is vital for security.
"The Capitol Police force has to have some sort of control mechanism to withhold information for purely security reasons," Hing said. As examples, she cited building evacuation plans and travel schedules for the speaker of the House.
Asked why such a measure would be regarded as necessary, Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists (search), said it was a puzzle to him.
"One possibility is that they might be concerned that the executive branch agencies would compromise or disclose the information. The executive branch is subject to the FOIA Act whereas Congress is not. But I think that’s not a very persuasive explanation because law enforcement information is never released under the FOIA. It's exempt from disclosure."
A section of the FOIA specifically exempts information that would disclose techniques, procedures and guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law. Also excluded is any information that could be expected to endanger the life or safety of any individual.
Rosenzweig said that if the Capitol Police were still concerned that some of their sensitive information would be subject to FOIA requests, it would be better to pass a law specifically exempting that information from FOIA requests rather than pass legislation that stifled interagency cooperation.
The way the language was drafted drew concern because both the House and Senate versions state that information will only be released if it is determined not to jeopardize security.
"The presumption always wins," said Rosenzweig, explaining that the Capitol Police will be the ones to determine whether security is jeopardized and can therefore withhold information before anyone else can make the same determination.
Lauer rejected the assertion that this measure would endanger interagency cooperation.
"Capitol Police absolutely work jointly with numerous other law enforcement agencies, and we definitely communicate and share information with each other. And it's not being used to try to keep information from other agencies."
Finding the legislation difficult to explain, Aftergood guessed the department's motive. "It could be that there are turf issues involved and that Congress or the Capitol Police want the option to withhold information perhaps to use as an incentive for executive branch agencies to share. I'm just purely speculating now: If they have the authority to withhold it, that might also give leverage. In other words: I'll show you mine if you show me yours."
The legislation, which already passed in the House, passed out of the Senate Appropriations Committee on July 15. The full Senate has not scheduled a vote.