FOIA Reform: Military Doctrine and a Presumption of Openness
The Freedom of Information Act (FOIA) empowers individual members of the public to request information from a government agency. That government agency is legally obligated to comply with those requests, accommodate the demand, and reply in a fixed amount of time, all at no cost to the requester. There’s a catch, though: the agency must comply unless the information requested falls under one of the nine exemptions. Proposals to amend FOIA have gone before Congress recently regarding two exemptions in particular.
According to the Federation of American Scientists, the Department of Defense made two proposals this year regarding exemption 2. The DoD maintains that the proposals would have been allowed under the original act but the scope of exception 2 was limited in 2011 by the Supreme Court in Milner v. Department of the Navy. The first proposal would exempt from disclosure military doctrine that “could reasonably be expected to risk impairment of the effective operation of the armed forces” and that had not already been publicly disclosed.
Steven Aftergood goes on to discuss the implications of the proposed amendment as follows:
The first thing to say about the proposed DoD FOIA exemption is that, given the realities of government information security today, any prudent military commander would have to assume that the adversary already possesses the unclassified military doctrine documents that the exemption would protect from public disclosure. The government has repeatedly been unable to protect many types of information of much higher sensitivity.
If that were not the case, the proposed DoD exemption would make sense up to a point. But it stops making sense where DoD “tactics, techniques and procedures” are themselves the focus of appropriate public attention. For example, U.S. techniques for the interrogation of detained persons have been the subject of intense public controversy as to whether they are illegal or inhumane. Likewise, offensive cyber operations involve important public policy questions that go beyond the tactical interests of the military. The DoD proposal does not appear to make allowance for mandatory FOIA disclosure in such compelling cases.
The DoD also proposed an amendment that would nullify the Milner decision altogether.
Both DoD FOIA proposals — the specific exemption for unclassified tactics, techniques and procedures, and the broad nullification of the Milner decision — were excluded by Congress from the FY 2016 defense authorization act “due to jurisdictional concerns and process issues (but not content issues),” according to an internal DoD planning document.
But both are expected to be presented again this year. DoD will advance its proposed FOIA exemption for military doctrine, while the proposed Milneramendment, with its government-wide implications, has been transferred to the Department of Justice for separate submission to Congress.
The House of Representatives did, however, pass the FOIA Oversight and Implementation Act. The Act codified a presumption of openness and narrowed the scope of exemption 5, which PRNewswire maintains was used to withhold memos with key information on Bush-era torture programs, targeted killing programs, and NSA surveillance programs.
Focusing on the presumption of openness, it requires agencies to disclose information unless there is "foreseeable harm" in its release, or unless there is some legal requirement to withhold the information. This important bill also allows the Office of Government Information Services (OGIS) to communicate directly with Congress and to issue advisory opinions in mediation.
As this blog has noted before, though, the amendment narrowing the scope of exemption 2 will not mean much unless it is enforced.
