For the fourth year in a row, the Department of Defense has asked Congress to legislate a new exemption from the Freedom of Information Act in the FY2019 national defense authorization act for certain unclassified military tactics, techniques and procedures.
Previous requests for such an exemption were rebuffed or ignored by Congress.
The Defense Department again justified its request by explaining that a 2011 US Supreme Court decision in Milner v. Department of the Navy had significantly narrowed its authority to withhold such information under FOIA.
“Before that decision, the Department was authorized to withhold sensitive information on critical infrastructure and military tactics, techniques, and procedures from release under FOIA pursuant to Exemption 2,” DoD wrote in a legislative proposal that was transmitted to Congress on March 16 and posted online yesterday by the Pentagon’s Office of General Counsel.
“This proposal similarly would amend section 130e to add protections for military tactics, techniques, and procedures (TTPs), and rules of engagement that, if publicly disclosed, could reasonably be expected to provide an operational military advantage to an adversary.”
In a new justification added this year, DoD further argued that the exemption was needed to protect its cyber activities. “The probability of successful cyber operations would be limited with the public release of cyber-related TTPs. This [FOIA exemption] proposal would add a layer of mission assurance to unclassified cyber operations and enhance the Department of Defense’s ability to project cyber effects while protecting national security resources.”
New FOIA exemptions are often unpopular and are not always routinely approved by Congress, which has repeatedly dismissed this particular proposal.
DoD has circumscribed the proposed exemption in such a way as to limit its likely impact and to make it somewhat more palatable if it were ever adopted. It would not apply to all TTPs, many of which are freely disclosed online. It would require personal, non-delegable certification by the Secretary of Defense that exemption of particular information was justified. And it would include a balancing test requiring consideration of the public interest in disclosure of information proposed for exemption.
But many FOIA advocates said the proposal was nonetheless inappropriate. It “would undermine the FOIA, creating an unnecessary and overbroad secrecy provision at odds with FOIA’s goal of transparency and accountability to the public,” they wrote in a letter objecting to last year’s version of the proposal.
It’s a busy time and you have things to do. Here are three things worth tracking in science policy as Fiscal Year 2026 (FY26) wraps and we head into FY27.
We’re asking the U.S. government to release holds on Congressionally-appropriated funding for scientific research, education, and critical activities at the earliest possible time.
It is in the interests of the United States to appropriately protect information that needs to be protected while maintaining our participation in new discoveries to maintain our competitive advantage.
The question is not whether the capital exists (it does!), nor whether energy solutions are available (they are!), but whether we can align energy finance quickly enough to channel the right types of capital where and when it’s needed most.