Bipartisan Coalition Tells Senate Not to Weaken FOIA Process in NDAA

Michi Iljazi

May 29, 2015

Earlier this week TPA discussed the House passage of the National Defense Authorization Act (NDAA) for FY2016, and how the Senate should now approach the legislation. Citing concerns on spending and process transparency, the post (which you can read here) included a coalition letter from a wide array of groups urging Congress to use the NDAA to bring down wasteful spending in the Overseas Contingency Operations (OCO) account, along with some specific amendment requests. This week Taxpayers Protection Alliance signed a coalition letter on NDAA urging the Senate not to adopt language that would harm the process for obtaining Freedom of Information Act (FOIA) requests from the Department of Defense (DOD). FOIA’s are critical to keeping an eye on what government is doing, and TPA was pleased to sign the letter. Next week the House will hold a hearing on the FOIA process, and TPA has submitted information to staff on the House Committee on Oversight & Government Reform on the matter.

Read the letter below:

May 27, 2015

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 language 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.

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.


American Society of News Editors
Bill of Rights Defense Committee
Campaign for Accountability
Campaign for Liberty
Cause of Action
Center for Constitutional Rights
The Center for Victims of Torture
Citizens for Responsibility and Ethics in Washington (CREW)
Defending Dissent Foundation
Demand Progress, Inc.
Human Rights Watch
Just Foreign Policy
Liberty Coalition
National Religious Campaign Against Torture (NRCAT)
National Security Archive
Project On Government Oversight (POGO)
Public Citizen
Society of Professional Journalists
Sunlight Foundation
Taxpayers for Common Sense
Taxpayers Protection Alliance

CC: Senate Judiciary Committee, Senate Armed Services Committee, House Committee on Oversight and Government Reform, and House Armed Services Committee