24 Groups Object to DoD's Attempt to Amend FOIA in the NDAA

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Dear Senators McConnell and Reid:

On behalf of the undersigned groups, we urge you to oppose the inclusion of the Department of Defense’s (DoD) proposal to alter the Freedom of Information Act (FOIA) in FY16’s National Defense Authorization Act (NDAA) if it is introduced as an amendment on the floor of the Senate. The Pentagon’s proposed language¹ would undermine the FOIA by returning to an overly broad interpretation of exemption 2 of the FOIA, and by creating an unnecessary secrecy provision at odds with FOIA’s goal of transparency.

Section 1046 of the proposed language would effectively overturn the 2011 Supreme Court decision in Milner v. Navy. In this case, the Court properly narrowed the interpretation of the exemption, and struck down agency tendencies to over-withhold under the exemption, by limiting application to the text of the FOIA. Currently, the exemption allows agencies to withhold records that are “related solely to the internal personnel rules and practices of an agency.” The DoD proposal would reverse this decision by inserting language to broaden this exemption to also include records that are “predominantly internal to an agency, but only to the extent that disclosure could reasonably be expected to risk impairment of the effective operation of an agency or circumvention of statute or regulation.” This expansion is unnecessary and clearly goes against FOIA’s originally intended purpose.

Another cause for concern is section 1047 of the proposed language, which would add a new statutory exemption under exemption 3 for “information on a military tactic, technique, or procedure.” It is unclear what the rationale is for this new exemption, particularly given that the Freedom of Information Act already exempts “properly classified” national defense information from disclosure. The language may be similar in effect to statutes that allow intelligence agencies, such as Central Intelligence Agency (CIA) and the National Security Agency (NSA) to withhold records under FOIA that would disclose “intelligence sources and methods”. Congress should deny the request. The “sources and methods” statutes have been used to justify withholding of information that demonstrates illegality and wrongdoing, without any showing that disclosure would harm national security. Extending similar, overbroad authority to the Secretary of Defense could be even more destructive, given the military’s larger size and budget, and the importance of command responsibility to its mission. The Department of Defense’s proposed language could be used to conceal information about the military’s interrogation and treatment of prisoners; its handling of sexual assault complaints; its oversight of contractors; and other matters of compelling public interest. Excessive, reflexive secrecy about completed military operations can also harm the troops themselves, as demonstrated by recent news reports that show soldiers’ health care was compromised by the military’s failure to acknowledge their exposure to chemical weapons in Iraq.²

Finally, section 1043 of the DoD’s proposed text increases the authority of the Secretary of State to exempt unclassified but “sensitive information” from foreign governments from FOIA. It is unclear why this change is necessary.

The proposal was shared with the Senate Judiciary Committee Chairman Senator Grassley, who rightly declined to sign off on it and asked for a Justice Department briefing on the impact this would have on FOIA.³ To consider these fundamental changes to FOIA and broad new exemptions without the input of the Senate Judiciary Committee, the committee with jurisdiction over FOIA and FOIA-related issues, would be unwise. If the DoD’s proposed FOIA language is considered when the NDAA comes to the floor, we strongly urge you to oppose it. This proposal is bad for transparency and accountability and is unnecessary.

If you have any questions or would like to discuss this issue further, please contact Katherine Hawkins at (202) 332-6736 or [email protected] or Liz Hempowicz at (202) 347 - 1122 or [email protected].