A Test of the New FOIA Policy

In a test of the new, more forthcoming Freedom of Information Act guidelines that were announced by Attorney General Eric Holder on March 19, the Federation of American Scientists has asked the Office of the Director of National Intelligence (ODNI) to reconsider its refusal to disclose the budget total for the National Intelligence Program for fiscal year 2006.

The new FOIA policy is intended to reverse entrenched secrecy practices and to encourage appropriate release of information.

“By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public’s ability to access information in a timely manner,” said Attorney General Holder last week.  The new guidelines (pdf) “strongly encourage agencies to make discretionary disclosures of information” and indicate that the Justice Department will not defend FOIA denials in court unless disclosure would damage a protected government interest.

That all sounds promising, but it remains to be demonstrated in practice.

Adding to several other pending FOIA cases that will test the practical meaning of the newly declared policy, we have asked the ODNI to reverse its recent denial of the 2006 budget total.  Although the 2007 and 2008 budget figures have been formally declassified, the 2006 figure remains classified.

This ODNI practice of classifying obsolete budget information while releasing current budget information is “stupid,” said Steven Garfinkel, the former director of the Information Security Oversight Office, at a March 16 conference sponsored by the Collaboration on Government Secrecy at the Washington College of Law.

It also appears to be at odds with the views of the DNI himself.  In response to a pre-hearing question (pdf; question 35C) at his confirmation to be DNI, Adm. Dennis C. Blair told the Senate Intelligence Committee:  “I believe the annual disclosure of the aggregate intelligence appropriation, as required by law, should continue. It has not, to my knowledge, caused harm to the national security, and provides important information to the American public.”

Given these developments, we suggested in a FOIA request (pdf) to ODNI today, “it seems questionable either that the Justice Department would defend the continued denial under FOIA of the 2006 intelligence budget total, or that the DNI would supply a sworn declaration to a federal court to try to justify the withholding of this information.”