Lawmakers considering DoD’s perennial ask to change FOIA law

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For the fourth year in a row lawmakers are considering a provision that will give the Defense Department a de facto blank check to deny Freedom of Information Act (FOIA) requests, according to transparency groups.

Members of the Armed Services Committees are mulling over a provision many may find familiar. The provision gives DoD discretion if it wants to release some operational or tactical information through FOIA requests.

“The way that this language is written is very squishy, which is not a legal term, but you look at it and the [provision] says ‘any information that would identify a method to accomplish a specific mission under a particular set of operational conditions.’ That doesn’t mean anything to me. Those terms aren’t defined in this legislation,” Liz Hempowicz, policy director at the Project on Government Oversight told Federal News Radio.

Hempowicz said the provision would allow DoD to further withhold unclassified data from the public. DoD already has certain authorities to hold onto data if it feels that information may harm troops or national security.

Hempowicz added that DoD’s FOIA process is already a quagmire of bureaucracy, sometimes taking a year or more to respond to requests.

But transparency groups are pointing to a larger issue in questioning why DoD feels it needs this exemption when it already has the ability to keep information it deems necessary from the public.

“They already have the ability to withhold the information [DoD] says they need this exemption for. It appears to POGO and our community that they really are trying to get at some other type of information, but they’re not making case as to why they need it,” Hempowicz said. “In previous years with meetings with civil society and staff on Capitol Hill, DoD officials told us they’ve never had to release anything that’d they’d be able to withhold under this new exemption. So they really haven’t demonstrated a need for this.”

DoD already has hundreds of exemptions from FOIA requests for instances that could compromise national security or reveal the location of troops in a warzone.

The bill provision came from a 2011 Supreme Court case, which narrowed the scope of FOIA exemptions for DoD. The case made unclassified military tactics, techniques and procedures unprotected from FOIA requests, Pentagon spokesman Lt. Col. Eric Badger said in a statement.

DoD first lobbied for the exemption four years ago.

Sens. Patrick Leahy (D-Vermont) and Chuck Grassley (R-Iowa) intervened.

DoD tried again in the 2017 and 2018 bills. Those attempts were met with backlash from more than 40 interest groups.

DoD already has a spotty record with FOIA requests.

An August 2016 DoD Inspector General report found DoD has not updated its FOIA policies as required by the department.

The report states “that the Pentagon is really slow in implementing changes to FOIA and so they are kind of dragging their feet on implementing the amendments to FOIA from over 10 years ago. [DoD] has already proven that they are not really interested in making sure they are releasing the information that they can release,” Hempowicz said. The provision “(gives) them kind of a blank check to hide really whatevert they want, this is unclassified information … its really disconcerting considering they are already having such a hard time following the law.”

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