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FOUO? Phooey!

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The Department of Defense Inspector General (DoD IG) is keeping the public in the dark about its findings of fraud, waste, abuse, and mismanagement in defense programs.

On Monday, we blogged about a new DoD IG report that found Northrop Grumman and DynCorp International had potentially overbilled taxpayers more than $120 million on a contract with the Counter Narco-terrorism Technology Program Office (CNTPO). Like most of the DoD IG’s really juicy reports (i.e., those finding mismanagement or misconduct by government officials and contractors), this one was labeled “For Official Use Only” (FOUO), which is one of the labels often used by government agencies to keep information from the public.

For reports labeled FOUO, the DoD IG will post only the report’s title or a summary on its website. The complete report must be requested through the Freedom of Information Act (FOIA). As anyone familiar with the FOIA process knows, turnaround on a request can take anywhere from a few weeks to a few years. POGO was fortunate enough to have obtained the CNTPO-contract overbilling report through non-FOIA means, but we are still waiting on requests for two other DoD IG reports, one of which we filed nine months ago. Both of these reports (summaries of which are posted here and here) are unfavorable assessments of other defense contracting programs.

The DoD IG informed us that it currently has 590 pending cases in its FOIA queue. Even with this backlog, it’s unfathomable why a straightforward request for an unclassified report can’t be processed in a few hours, much less nine months.

The following is the Pentagon’s policy behind the FOUO designation (see page 11):

FOUO is a dissemination control applied by the Department of Defense to unclassified information when disclosure to the public of that particular record, or portion thereof, would reasonably be expected to cause a foreseeable harm to an interest protected by one or more of FOIA Exemptions 2 through 9….Marking information FOUO does not automatically qualify it for exemption from public release pursuant to the FOIA. If a request for a record is received, the information shall be reviewed…to determine if it truly qualifies for exemption.

What this means is that the FOUO label—indeed, all information security designations—is not to be used to conceal from the public examples of negligence, mismanagement, ineptitude, or any other information that would merely cause embarrassment to the government or a contractor. Neither POGO nor Bloomberg, which wrote about the CNTPO report three days before we did, have been accused of causing a major breach of national security or other “foreseeable harm” as stated in the policy. So, it’s reasonable to assume that the DoD IG is indeed trying to bury the report to spare the Pentagon and two of its largest contractors the embarrassing publicity.

In 2010, President Obama issued an executive order designed to simplify and standardize the “inefficient, confusing patchwork” that the federal government’s unclassified information dissemination system has become since September 11, 2001. The order emphasizes the goals of “openness and uniformity.” The DoD IG’s absurd practice of keeping some of its unclassified reports under wraps via the FOIA process shows that the government has a long way to go to achieve those goals.

On a related note, Representative Jackie Speier (D-Cal.) recently proposed a partial solution to the problem of easily embarrassed Pentagon watchdogs. She introduced an amendment (see #182 on page 13) to the defense authorization bill that would require “the public release of any IG reports that find misconduct for senior executive service (SES) officials, political appointees, and general and flag officers that rank O-6 or higher level.” The House will vote today on the amendment. This is an important first step, and we hope that eventually all unclassified IG reports will be released to the public without having to jump through the FOIA hoop.

Update: On May 29, the House Oversight and Government Reform Subcommittee on Government Operations held a hearing titled "Pseudo-Classification of Executive Branch Documents: Problems with the Transportation Security Administration’s Use of the Sensitive Security Information Designation." Patrice McDermott, Executive Director of OpenTheGovernment.org, used this blog post in her testimony to illustrate how the federal government uses the “For Official Use Only" marking to conceal information that should be made public.

By: Neil Gordon
Investigator, POGO

Neil Gordon, Investigator Neil Gordon is an investigator for the Project On Government Oversight. Neil investigates and maintains POGO's Federal Contractor Misconduct Database.

Topics: Government Accountability

Related Content: Government Secrecy, Pseudo-Classification, Watching the Watchdogs, Open Government, FOIA, Inspector General Oversight, Information Access

Authors: Neil Gordon

Submitted by Anonymous at: May 21, 2014
I'd like some attention paid to the fact the DoD has never had an audit and now they say it will be 2018 before their records are "ready" for an audit. What kind of excuse is that for an agency spending over $1 trillion each year??

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