New FOIA restrictions deserve 2nd look
By TOBIAS NAEGELE | STARS AND STRIPES OMBUDSMAN Published: September 5, 2016
Congress is on the verge of granting the Pentagon new rights to exclude from release certain information under the Freedom of Information Act. The measure, which is included in the Senate version of the 2017 National Defense Authorization bill, would exempt from release documents and files relating to military tactics, techniques and procedures, or TTP.
On the face of it, it seems a very reasonable aim. Who wouldn’t want to ensure that military TTP are protected?
Yet this is not a simple matter. Bear with me, and I’ll explain why. The Department of Defense lost the ability to protect such information in the wake of a 2011 Supreme Court case, Milner v. Department of the Navy, in which the court ruled 8-1 that a broad interpretation of FOIA’s Exemption 2 was not consistent with the law as written. Exemption 2 is supposed to apply to records “related solely to the internal personnel rules and practices of an agency.” But for years, agencies had followed Justice Department guidance that suggested the exemption also covered “more substantial internal matters.”
The Pentagon has been seeking redress ever since. When its 2015 proposal didn’t make it past committee, the DOD revised and narrowed its request, going so far as saying the secretary of defense himself would have to sign off in every case where these new powers would be invoked. The Senate approved the measure, but since the House did not, the two must decide in conference if it should become law.
Public disclosure advocates are appalled. Last month, a large coalition of journalists and government transparency advocates, led by the Project on Government Oversight, or PoGo, wrote to the armed services committees warning that this new power would enable officials to “justify concealing just about any material DOD creates.”
Not so, says the DOD. We just need to protect a narrow set of information that could have real combat consequences.
“It comes down to this,” said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists. “Do you trust DOD to make judicious use of this authority? Or do you think they will run away with it and exercise it in bad faith?”
They call it CUI
The military calls this kind of information CUI — for controlled, unclassified information. It may as well be called CYA, for you know what. The Pentagon has for years sought to control information with this oxymoronic term and to stretch its use beyond reason. By overreaching in the past, they have put reasonable uses in peril.
Anyone experienced with the DOD and FOIA knows information requests can languish for years. The current backlog exceeds 12,000 and is growing, according to the Department of Justice. And while the DOD says 93 percent of FOIA requests are handled within 100 days, the other 7 percent don’t come close. Just as significant, the DOD’s FOIA policies are stunningly out of date, according to its inspector general. Its Aug. 16 report, “DOD Freedom of Information Act Policies Need Improvement,” found Pentagon leaders last updated its FOIA policies 17 years ago. A lot has changed since then.
One thing that’s not changed is that marking something “CUI” does not provide any protections under FOIA. The law makes no mention of the term. Anything withheld under FOIA is supposed to be justified under a specific provision within that law, so CUI doesn’t cut it.
But that doesn’t mean there may not be good reasons to protect certain documents. A special operations field manual that could provide specific knowledge of how U.S. forces would respond to certain circumstances, for example, is not something I want in enemy hands. The trouble is, operational plans are currently protected from release under FOIA; TTPs contained in doctrine or other manuals is not.
Can we trust the Pentagon not to abuse this? I think the requirement that the secretary himself sign off on each instance of its use argues for trust. But I’d like to see something more from the DOD in terms of FOIA compliance. So here’s a modest proposal: Do not approve the measure as currently written, but don’t lay it aside, either.
Instead, add a provisional sunset clause to the bill, stipulating that the exemption must expire within 24 months of passage unless the DOD brings its FOIA regulations up to date and reduces its FOIA backlog by at least 50 percent by Oct. 1, 2018.
All sides win with this solution. The Pentagon gets a protection it insists it needs, along with the necessary incentive to solve two festering and intractable FOIA problems that have long plagued the institution. If the extra exemption is really that valuable, the DOD’s FOIA leaders can figure out how to get the rest of their house in order.
Disagree with my take? Have a better idea? I want to hear from you. Send me an email at email@example.com or post a comment with this column online.