DoD Again Seeks FOIA Exemption for Military Tactics

For the third time, the Department of Defense is asking Congress to enact a new exemption from the Freedom of Information Act for certain military tactics, techniques and procedures (TTP), as well as rules of engagement, that are sensitive but unclassified.

“The effectiveness of United States military operations is dependent upon adversaries, or potential adversaries, not having advance knowledge of TTPs or rules of engagement that will be employed in such operations,” DoD said in its legislative proposals for the FY2018 defense authorization act. “If an adversary or potential adversary has knowledge of this information, the adversary will gain invaluable knowledge on how our forces operate in given situations.”

“Military TTPs and rules of engagement are analogous to law enforcement techniques and procedures, which Congress has afforded protection,” DoD said. See section 1003 of DoD’s proposed defense authorization act for FY2018.

DoD is not seeking to exempt all TTP records as a class. Rather, the proposal is that specified TTP information could be withheld under FOIA if the Secretary of Defense determined in writing that its disclosure would be likely to provide “an operational military advantage to an adversary” and that the public interest in the information does not outweigh the potential risk. This determination would have to be made personally by the Secretary of Defense, and could not be delegated. It would require a written justification that would have to be available to the public on request.

Similar legislative proposals were introduced by the Department of Defense in the past two years.

Wary of any move to expand DoD’s authority to withhold information, however, many advocates of open government opposed the measure. Truly sensitive military information could be classified, they argued, and an existing FOIA exemption “more than adequately protects such information.” In any event, despite repeated requests, the DoD proposal was not approved by Congress.

The Department of Defense and the military services (especially the Army) generate dozens if not hundreds of doctrinal publications every day. Many of them are closely held, but many others are freely published. The latter, at least, would seem to be outside the scope of the proposed new exemption for TTPs and rules of engagement, if it were ever enacted.

A new document on DoD interactions with foreign security forces, of interest to some, was posted online by DoD this week. See Security Cooperation, Joint Publication 3-20, May 23, 2017.