Congress: Protect FOIA from the Pentagon
August 24, 2016
The Honorable John McCain
The Honorable Jack Reed
The Honorable Mac Thornberry
The Honorable Adam Smith
Dear Chairmen and Ranking Members:
As you begin to reconcile the differences between the House and Senate versions of the National Defense Authorization Act for Fiscal Year 2017 (NDAA, H.R. 4909 and S. 2943), the undersigned organizations, concerned with openness and accountability, urge you to remove Section 1054 of S. 2943: “Exemption of Information on Military Tactics, Techniques, and Procedures.” This broad exemption to the Freedom of Information Act (FOIA) for the entire Department of Defense (DoD) would severely undermine the FOIA reforms just passed into law by this Congress and create an unnecessary secrecy provision at odds with FOIA’s goal of transparency for public accountability for the operations of the Department of Defense.
Last year Congress appropriately rejected a proposal to curtail FOIA through the NDAA. The proposed exemption included in Section 1054 would exempt “information on military tactics, techniques, and procedures,” from FOIA. According to the Department, the expanded exemption is needed to address concerns about giving potential adversaries advance knowledge of this information. However, Exemption 1, which shields “properly classified” national defense information from disclosure, and a host of other statutory FOIA exemptions, already addresses these concerns and more than adequately protects such information.
Furthermore, the DoD’s proposed language concerning the impact of release on operations is so broad that it could allow DoD to withhold almost any unclassified document at all related to Defense Department operations and could be used to justify concealing just about any material DoD creates. For example, DoD officials could potentially abuse their discretion to withhold information about the military’s handling of sexual assault complaints, its oversight of contractors, its drone program, and other matters of compelling public interest. The proposed language is unnecessary and clearly goes against FOIA’s originally intended purpose.
Any amendment to FOIA, especially amendments of this scope, should be referred to Committees with jurisdiction over FOIA-related issues, in this instance, the Senate Judiciary Committee or the House Committee on Oversight and Government Reform. FOIA-related legislation needs the careful consideration of those Committees, including public hearings; such care is necessary to ensure that any changes preserve agencies’ capability to withhold information which truly requires protection while preserving and promoting transparency and public accountability. That same care was afforded to the bipartisan FOIA Improvement Act of 2015, which was signed into law just last month. Granting DoD’s request from March 2015 ignores the new reforms to FOIA and allows DoD to excuse itself from the hard fought and necessary reforms passed just a few months ago by this Congress.
If you have any questions or would like to discuss this issue further, please contact Liz Hempowicz, Policy Counsel with the Project On Government Oversight at 202-347-1122 or email@example.com.
American-Arab Anti-Discrimination Committee
American Civil Liberties Union
American Library Association
Americans for Tax Reform
American Society of Journalists and Authors
American Society of News Editors
Amnesty International USA
Appeal for Justice
Association of Alternative Newsmedia
Bill of Rights Defense Committee/Defending Dissent Foundation
Campaign for Accountability
Center for Constitutional Rights
Citizens for Responsibility and Ethics in Washington
David A. Schulz, Co-Director, Media Freedom & Information Access Clinic, Abrams Institute for Freedom of Expression, Yale Law School*
Electronic Frontier Foundation
Government Accountability Project
Human Rights Watch
Knowledge Ecology International
Mark Tapscott, Executive Editor, Daily Caller News Foundation*
National Freedom of Information Coalition
National Press Club
National Religious Campaign Against Torture
National Security Archive
National Security Counselors
National Taxpayers Union
No More Guantanamos
Project On Government Oversight
Reporters Committee for Freedom of the Press
Society of American Archivists
Taxpayers for Common Sense
Taxpayers Protection Alliance
Transactional Records Access Clearinghouse
Washington Coalition for Open Government
cc: Members, House and Senate Armed Services Committee
* Title for identification purposes only
 See Steve Aftergood, Federation of American Scientists, DoD Again Seeks FOIA Exemption for Military Doctrine, March 5, 2016, https://fas.org/blogs/secrecy/2016/03/dod-foia-ttp/.
 Department of Defense Open Government, DoD (b)(3) Statutes Updated, http://open.defense.gov/Portals/23/Documents/DoD_(b)(3)_statutes_updated.pdf. (Downloaded June 20, 2016)