National Freedom of Information Coalition

The Pentagon Proposal: An Analysis

SEC. ___ . PROTECTION OF INFORMATION REGARDING WEAPONS OF MASS DESTRUCTION.

(a) Prohibition from Disclosure under Freedom of Information Act.--Information in the possession of the Department of Defense concerning weapons of mass destruction, as defined in subsection (d) of this section, shall not be disclosed under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act (FOIA)) for the period of time the sensitivity of the information can be reasonably confirmed. Any information controlled under the Atomic Energy Act of 1954, as amended, is exempt from the provisions of this Act. This exemption shall be implemented in a manner so as to not unduly restrict the public's current level of access to environmental impact statements, records concerning healthcare activities, or other information essential to inform official decision-making concerning the health and safety of the public.
(b) Requirement for Safeguarding.--The Department of Defense shall safeguard information concerning weapons of mass destruction commensurate with the sensitivity of the information concerned and shall take all reasonable actions to ensure parties outside the Federal government with whom the Department shares such information safeguard it in the same manner.
(c) Application of State or Local Disclosure Laws.--Information subject to this section that the Department has provided to state and local authorities shall not be made available pursuant to any State or local law requiring disclosure of information or records.
(d) Definitions.--In this section:

  1. The term "weapon of mass destruction" has the same meaning as given in the Defense Against Weapons of Mass Destruction Act of 1996 (50 U.S.C. 2302).
  2. The term "information concerning weapons of mass destruction" means information that--
    • would assist in developing, producing, or using weapons of mass destruction or in evading the detection or the monitoring of the development, production, use, or presence of weapons of mass destruction; or
    • would disclose a vulnerability to the effects of a weapon of mass destruction.
  3. Examples of such information could include information that remains current and sensitive, such as but not limited to, formulas and design descriptions of lethal and incapacitating materials; maps, designs, security/emergency response plans, and vulnerability assessments for facilities containing weapons of mass destruction materials; studies of the effects and possible methods of weaponization of weapons of mass destruction materials; design details, capabilities, and application of detection, surveillance, countermeasures, and measurement equipment or plans; United States Government evaluations of response plans of state and local governments; and evaluation of weapons of mass destruction dispersal systems or methods.
  4. Reporting.--Ninety days following the one-year anniversary of the effective date of this section, the Department of Defense will provide to the Department of Justice and the Office of Management and Budget a report detailing the number of FOIA requests received for information covered under this section, a description of the information requested, and specific actions taken as a result of the request.

Section-by-Section Analysis

(From the U.S. Department of Defense)

This section would exempt from disclosure under the Freedom of Information Act (FOIA) certain information in the possession of the Department of Defense concerning weapons of mass destruction (WMD) which does not also meet the threshold for national security classification.

The exemption would be available to the Department for only the period of time the information remains sensitive. It would also require the Department to safeguard such information commensurate with its sensitivity, and it would preempt contrary State or local laws. It would also require the Department to take reasonable actions to ensure the information is also safeguarded by parties with whom it shares the information.

Individuals, corporations, universities, and State and local governments operate research programs, chemical plants, nuclear power stations, medical treatment facilities, and other activities that generate information that easily could assist a terrorist or other adversary to make or use a weapon of mass destruction. Such information created by or for the United States Government can be classified under current authorities, when appropriate, and certain unclassified information about U.S. Government programs may be properly withheld from disclosure under exemption (b)(2) of FOIA.

Exemption (b)(2), however, does not provide protection against release of unclassified information about non-U.S. Government facilities and activities that may be of significant value to terrorists or other adversaries seeking to attack U.S. interests by chemical, biological, radiological, or nuclear means. When in the Department of Defense's possession, in some cases, the information about non-U.S. Government facilities or activities will not fall within any current FOIA exemption, even though its release might create a risk to national security. This section would provide statutory protection against a requirement to release such information under FOIA and similar State and local laws, but for only that period of time the information remains sensitive.

Exemption (b)(4) does provide protection against release of information from non-U.S. Government facilities provided it is (1) confidential business information, (2) which is voluntarily provided to the government and (3) is customarily protected by the submitter. However, meeting this multi-tiered test is not always easily achieved.

Due to the uncertainties described above, a WMD withholding statute is warranted, but only one of limited scope and duration. The limitations are necessary because much of the information at issue is not under the control of the Department of Defense or any other Federal, State or local agency and thus may become public through other means. At such time, it would be unnecessary for the Department of Defense to continue to withhold and safeguard the same information.

Also, information such as security plans and inventories of specific private sector facilities would quickly become non-sensitive if, for example, the facility closed or the inventory was moved to another location. Again, continued withholding and safeguarding by the Department would be unnecessary.

Additionally, the narrow scope is necessary to ensure information necessary for disclosure and exchange for medical or public heath and safety reasons may be disclosed pursuant to existing law and regulation.

About the Sunshine in Government Initiative

The Sunshine in Government Initiative is a coalition of media groups committed to promoting policies that ensure the government is accessible, accountable and open. Public oversight is the ultimate safeguard of democracy. This is not an issue just for the media. It is the inalienable right of citizens to examine and judge their government; and that right is served when news media act on behalf of the public to gain access to information.

SGI members include: The American Society of Newspaper Editors, The Associated Press, Association of Alternative Newsweeklies, Coalition of Journalists for Open Government, National Newspaper Association, Newspaper Association of America, Radio-Television News Directors Association, Reporters Committee for Freedom of the Press, and Society of Professional Journalists.

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

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