Secrecy Provisions Hidden in Military Construction Bill

Despite the best of intentions, changes that are supposed to help can often do more harm than they are worth. These unintended consequences often occur when lawmakers use overly broad (or narrow) language and terms that are not easily defined. A good example is a section included in the Military Construction Appropriations Bill that addresses public access to the regular reports agencies make to Congress. Section 507 begins well enough:

(a) Any agency receiving funds made available in this Act, shall, subject to subsections (b) and (c), post on the public Web site of that agency any report required to be submitted by the Congress in this or any other Act,

But it goes downhill from there, continuing:

upon the determination by the head of the agency that it shall serve the national interest.

(b) Subsection (a) shall not apply to a report if—

(1) the public posting of the report compromises national security; or

(2) the report contains confidential or proprietary information.

(c) The head of the agency posting such report shall do so only after such report has been made available to the requesting Committee or Committees of Congress for no less than 45 days.

Similar attempts at limiting transparency are common. For example, the Department of Defense (DoD) tried to sneak into the National Defense Authorization Act last year in order to weaken the Freedom of Information Act (FOIA). Those changes would have overly broadened government exemptions and effectively overturned a 2011 Supreme Court decision limiting the government’s ability to withhold “internal” documents. In response to the DoD’s requested changes, the Project On Government Oversight, along with 23 other groups, sent a letter urging Senate leaders to reject them as the proposal was “bad for transparency and accountability and is unnecessary.” Although the Senate rejected the changes last year, the DoD is trying again with this year’s NDAA.

Section 507 of the Military Construction Appropriations Bill, too, is bad for transparency and accountability, and is unnecessary. There are two main problems with its language:

1. It is overly broad, vague, unrealistic, and inefficient. By using terms as ambiguous as “national interest” (note: this is quite different from “national security”) and by requiring determinations to be made by each agency head, the section could easily result in inconsistent and arbitrary decisions regarding disclosure. “Confidential and proprietary information” can mean literally anything that someone doesn’t want the public to see. For example, the House Oversight and Government Reform Committee’s report on FOIA found that the Food and Drug Administration withheld as “confidential commercial information” advisory committee members’ publicly available professional license numbers, publication names, grant amounts, and past work history. Part (b)2 of the section also effectively gives veto power to any staffer who comes into contact with the report and thinks it should be stamped as “confidential” or “proprietary.”Finally, the requirement for the head of the agency to personally decide whether or not to disclose each and every report to Congress is unrealistic. The national interest is best served by not flooding agency heads with routine reports to Congress that they are being required to individually approve for disclosure.

2. It is unnecessary and confusing. Under FOIA, any “properly classified” information is already exempted from public disclosure. A new FOIA bill in Congress would also mandate (and appropriately limit) proactive disclosures. The provisions in this bill would effectively create multiple standards for disclosure, so that reports that are releasable under FOIA could still be withheld from proactive disclosure. If implemented, the section will be easily misused and would serve to further complicate and obscure a citizen’s right to information.

Bonus problem: When reached for comment via email, Steven Aftergood, Director of the Federation of American Scientists’ Project on Government Secrecy, responded that:

The 45-day publication deferral period seems excessive and unnecessary. It would actually prohibit DoD from promptly posting an unclassified report to Congress even if it were extremely newsworthy and important. This would be a step backwards from the status quo.

Given these problems, POGO believes the Military Construction Bill should require the online posting of reports with the simple exception of classified information. Barring that solution, it would be better to strip the entire section from the bill than to needlessly confuse agencies and citizens with its ambiguous language.