Cause of Action Institute has signed a joint letter with dozens of groups from across the ideological spectrum urging the Chairmen and Ranking Members of the Senate and House Committees on Armed Services to oppose a Department of Defense (“DOD”) measure that could undermine the Freedom of Information Act’s (“FOIA”) goal of government transparency and accountability through a new FOIA exemption.
The DOD proposal would use the FY2018 National Defense Authorization Act to exempt from disclosure “information on military tactics, techniques, and procedures, and of military rules of engagements.” This proposal represents an effort by the Pentagon – the largest executive branch agency with the largest discretionary budget – to create a FOIA exemption that, if applied broadly, could hide much of the information and documents it creates.
This proposal is both procedurally problematic and unnecessary by DOD’s own practices, and the changes were proposed without the robust consideration and input of the committees with jurisdiction over FOIA. To date, no one has identified a disclosure of information that should not have occurred and that would be protected by this new language. DOD already has authority to withhold classified as well as unclassified information under FOIA for a variety of reasons. The proposed measure would give DOD license to further stretch its ability to shield documents from the public, which could be used to conceal information about matters of compelling public interest, such as the military’s oversight of contractors. This proposal would broaden a very narrowly drawn existing Exemption 3 statute. The risk in exempting more materials from disclosure does not appear to be justified in this case.
Cause of Action Institute shares DOD’s goal of ensuring that information that needs to be withheld for national security purposes is not disclosed. However DOD’s most recent proposal is not the way to do so.
