National Freedom of Information Coalition

Defense proposal would expand secrecy

The Defense Department's proposed Defense authorization bill for 2007 includes a provision giving the department a new FOIA exemption for information "concerning" weapons of mass destruction or their vulnerabilities.

The administration's proposed Defense authorization bill for fiscal 2007 includes language that would allow the Department of Defense to conceal information "concerning" weapons of mass destruction by creating a new exemption to the Freedom of Information Act (FOIA). The Pentagon's concern, however, is not only with its own information on the making or securing of such weapons but with any information anywhere that "would disclose a vulnerability" to any kind of WMD. In addition to being overbroad, the exception duplicates existing secrecy rules and would seriously jeopardize the free flow of local and state health and safety information. The administration has offered no plausible grounds for this harmful legislation.

Read further analysis of the proposal here.

Background

Section 923 of the Defense Authorization Act for Fiscal Year 2007 (S. 2507 and H.R. 5122) would allow the Department of Defense to withhold under the Freedom of Information Act any information about, including vulnerabilities of, any weapon or device that "is intended, or has the capability, to cause death or serious bodily injury to a significant number of people through the release, dissemination, or impact" of chemicals, organisms or radiation. The secrecy provision would pre-empt state and local disclosure laws. It would also encompass information held by private companies. While the text states the Defense Department would not "unduly" limit public access to environmental and health assessments, the bill would allow the Defense Department to unilaterally withhold any documents that discuss threats to the lives of a significant number of people. The bill fails to specify criteria for withholding or guidelines for setting time limits.

New FOIA Exemption is Unnecessary and Unjustified

The language, included at the request of the Defense Department, represents an unnecessary and unjustified intrusion on open government. Specifically, the language:

  1. Sweeps vast amounts of information into overbroad and ill-defined categories. The Defense Department could keep secret information about real estate and property values of office space, environmental and health assessments, reports generally describing weaknesses at security plants and threats to the public such as toxic chemicals processed in local communities and food-borne bacteria.
  2. Pre-empts state and local laws on public disclosure and reporting on public health and safety topics. Public health officials and agencies in state and local governments and outside government often have different, sometimes competing, public health priorities. These priorities set their strategies, which for many include public reporting and disclosure of public health and safety risks. This language allows the Pentagon, an agency that by law is not allowed to get involved in domestic matters, to unilaterally pre-empt state and local public health priorities and efforts.
  3. Complicates information sharing between federal agencies. The language would establish a new standard for the Defense Department to decide when to withhold or disclose information that is different from the standards other agencies use in responding to FOIA requests. The 9/11 Commission concluded information sharing between federal agencies was woefully lacking; this language only aggravates this problem.
  4. Invites abuse and overuse despite promises of restraint. The plain language in the proposed text suggests the Defense Department would limit secrecy to short time periods and not "unduly" restrict information.

Unfortunately, the proposal fails to establish:
  1. Clear criteria for withholding information,
  2. An independent process for making such decisions, and
  3. Standards for deciding how long documents should be withheld.

Instead, it:

  1. Encourages the proliferation of "pesudoclassifications." A recent Government Accountability Office report and several House subcommittee hearings held by Rep. Christopher Shays (R-CT) have concluded that agencies create too many new categories of unclassified information that can still be kept secret. This inhibits information sharing between agencies and fosters too much government secrecy. This proposal would exacerbate the problem by creating an entirely new exemption category through which the Defense Department may deny FOIA requests.
  2. Undermines a comprehensive solution. Congress is considering a comprehensive approach to restrictions on unclassified information. For example, the House Government Reform Committee unanimously passed bipartisan legislation, the Executive Branch Reform Act (H.R. 5112), to regulate the use of "pseudoclassifications." The bill requires agencies to document and justify restrictions on unclassified information before regulations are written. The language in the defense authorization bill may undermine or even contradict the comprehensive approaches Congress is also considering.

For more information regarding the proposal, contact Rick Blum, coordinator of the Sunshine in Government Initiative at rblum@rcfp.org or (703) 807-2100.

NFOIC News Archives