The Washington PostDemocracy Dies in Darkness

The Pentagon’s use of FOIA is flawed. Now it wants to make it even stricter.

The letterhead on a typical Freedom of Information Act response from the U.S. Army. (Screen grab)

A wide-ranging group of government transparency advocates asked Congress on Wednesday to block new changes to the Freedom of Information Act requested by the Defense Department, saying that approving them would allow the Pentagon to “excuse itself from the hard fought and necessary reforms.”

The letter, signed by organizations ranging from Human Rights Watch to the National Press Club and released by the Project On Government Oversight, said that language in the Senate version of the proposed 2017 National Defense Authorization Act would provide the military with a new exemption to FOIA that is overly broad and potentially easy to abuse.

The proposal would give the Pentagon the ability to withhold information about unclassified tactics, techniques and procedures used by the Armed Forces. It’s so broad, the letter argues, “it could allow DoD to withhold almost any unclassified document at all related to Defense Department operations and could be used to justify concealing just about any material DoD creates.”

The language was requested by the Pentagon to address concerns about giving potential adversaries advance knowledge of how it operates, according to the letter.

The existing FOIA legislation includes a variety of exemptions under which the government can withhold information. They include revealing classified information, trade secrets, internal personnel practices, or “deliberative or policymaking processes.” The letter argues that the Pentagon already can classify anything it considers sensitive or helpful to a potential enemy of the United States. It was sent to the chairmen of the armed services committees, Sen. John McCain (R.-Ariz.) and Rep. Mac Thornberry (R.-Tex.), and the ranking minority members, Sen. Jack Reed (D.-R.I.) and Rep. Adam Smith (D.-Wash.)

Air Force Lt. Col. Eric Badger, a Pentagon spokesman, said Wednesday night that the change was requested as a result of the 2011 Supreme Court decision Milner v. Department of Navy, which held that the Navy could not use Exemption 2 of FOIA to withhold information about explosives at a base in Washington state. That exemption pertains specifically to personnel matters, according to the ruling.

“Prior to that decision, Exemption 2 protected unclassified military tactics, techniques, and procedures (TTPs) and rules of engagement, the release of which could cause harm to DoD combat and tactical operations, Badger said in an email. “This legislative proposal seeks to clarify that FOIA is intended to cover such unclassified but sensitive information, as it does for similar unclassified but sensitive information, like law enforcement sensitive information.”

Badger added that the Pentagon is working with a number of congressional committees that have jurisdiction over FOIA and is “working to ensure that any change to legislation is narrowly tailored to protect only the military operational information, and could not be applied more broadly to business practices” of the Defense Department.

“The Department is committed to working towards a resolution that protects sensitive information while respecting the public’s right of access to government documents,” he said.

Transparency advocates have long called for the Pentagon to improve its adherence to FOIA, noting that it takes years for some documents to be released. The House Committee on Oversight and Government Reform released a report in January called “FOIA is Broken: A Report,” which said the executive branch of the federal government “encourages an unlawful presumption in favor of secrecy when responding to Freedom of Information Act requests.”

The committee report notes that it is common for government agencies to use delay tactics to withhold information after a FOIA request has been filed, including sending letters in which an agency asks if a requester is still interested in information sought and says a request will be closed if the agency does not receive a response within days. In one case dissected during a committee hearing held last year in advance of the report’s release, Vice News reporter Jason Leopold said the Defense Department offered to settle a FOIA lawsuit with him if he agreed to never file another FOIA request with the Pentagon.

Whatever the reasons, FOIA has, in many respects, been unacceptably neutered,” the report said. “As this report outlines, obfuscation comes in many forms: impermissible delays, exorbitant fees, improper use of exemptions, and denial by never-ending referrals are just a few.”

This post was updated at 9:15 p.m. to include response from the Pentagon.

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