Defense Dept. Thinks It's Not Withholding Enough Info From FOIA Requesters, Asks Congress For Another Exemption

Legal Issues

from the an-ignorant-nation-is-a-safe-nation dept

The Defense Department, like much of the federal government, finds its FOIA obligations too burdensome to perform correctly or speedily. Thanks to its ability to cite national security exemptions more frequently than the FBI and NYPD, it has all the excuses it needs to withhold documents in full or replace long chunks of text with redaction bars.

Somehow, the multitude of FOIA exemptions it has access to still isn’t enough. Figuring three denials is nothing more than legislators playing hard to get, the DoD is again petitioning Congress to grant it another way to withhold information from requesters.

For the fourth year in a row, the Department of Defense has asked Congress to legislate a new exemption from the Freedom of Information Act in the FY2019 national defense authorization act for certain unclassified military tactics, techniques and procedures.

Previous requests for such an exemption were rebuffed or ignored by Congress.

The Defense Department again justified its request by explaining that a 2011 US Supreme Court decision in Milner v. Department of the Navy had significantly narrowed its authority to withhold such information under FOIA.

“Before that decision, the Department was authorized to withhold sensitive information on critical infrastructure and military tactics, techniques, and procedures from release under FOIA pursuant to Exemption 2,” DoD wrote in a legislative proposal that was transmitted to Congress on March 16 and posted online yesterday by the Pentagon’s Office of General Counsel.

The Defense Dept. misstates the Supreme Court’s holding in this case. All the court did was read the exemption as it was meant to be read: as applying only to records “relating to employee relations and human resources issues.” The documents sought dealt with the effects of explosions on personnel as hypothesized by Navy researchers. Although the documents dealt with employees in a theoretical fashion, they did not deal with actual employees or “HR issues.” From the Supreme Court decision:

These data and maps calculate and visually portray the magnitude of hypothetical detonations. By no stretch of imagination do they relate to “personnel rules and practices,” as that term is most naturally understood. They concern the physical rules governing explosives, not the workplace rules governing sailors; they address the handling of dangerous materials, not the treatment of employees. The Navy therefore may not use Exemption 2, interpreted in accord with its plain meaning to cover human resources matters, to prevent disclosure of the requested maps and data.

So, the DoD is no worse off than it was prior to the decision. The difference it is has to use exemptions correctly. Apparently, that’s not an option. It wants a new way to withhold info and its willing to undermine FOIA law to do so. Countering last year’s attempt to codify a new level of DoD opacity, open government advocates had this to say about the department’s proposal.

This expansion is not only procedurally problematic, but also unnecessary by DoD’s own practices. As stated above, FOIA exemption one, which shields “properly classified” national defense information from disclosure, already addresses DoD’s concerns, and more than adequately protects the information DoD is saying it is trying to protect.

The Defense Dept. wants is a way to bury ugly facts it would otherwise be forced to release. What’s being requested in the name of national security could be used to cover up all sorts of internal misconduct.

To ratify this practice would simply give the department license to even further stretch its ability to shield documents from the public under FOIA. DoD could attempt to use this unnecessary exemption to conceal information about the military’s handling of sexual assault complaints; its interrogation and treatment of prisoners; its oversight of contractors; and other matters of compelling public interest.

Fortunately, few legislators are willing to add more opacity to existing FOIA law. On the other hand, attempts to roll back exemptions have routinely been killed by legislators unwilling to add more transparency. So, we have the law we have, which won’t progress much but, thankfully, probably won’t get much worse, either.

Filed Under: congress, defense department, exemptions, foia