DoD Again Presses for New FOIA Exemption

06.08.21 | 2 min read | Text by Steven Aftergood

The Department of Defense is once again asking Congress for an exemption from the Freedom of Information Act for certain unclassified military information including records on critical infrastructure and military tactics, techniques and procedures (TTPs).

The latest proposal was included in the Pentagon’s draft of legislative language for the Fiscal Year 2022 defense authorization act (section 1002, Nondisclosure of certain sensitive military information).

Similar language has been proposed by DoD each year since 2015, and each year (so far) it has been rejected by Congress. (DoD Seeks New FOIA Exemption for Fourth Time,” Secrecy News, May 1, 2018).

The provision is still needed, according to DoD. “The effectiveness of U.S. military operations is dependent upon adversaries, or potential adversaries, not obtaining advance knowledge of sensitive TTPs, rules for the use of force; or rules of engagement that will be employed in such tactical operations,” DoD wrote in its June 7 justification of the proposal.

Furthermore, DoD assured Congress that if it were approved the exemption would not be used indiscriminately. It “will not be applied in an overly broad manner to withhold from public disclosure information related to the handling of disciplinary matters, investigations, acquisitions, intelligence oversight, oversight of contractors, allegations of sexual harassment or sexual assault, allegations of prisoner and detainee maltreatment, installation management activities, etc.”

Most DoD doctrinal publications are unclassified and are publicly available online. Some are classified. But some are unclassified and restricted. For example, last week the Army issued a publication on Special Forces Air Operations (ATP 3-18.10) that is unclassified but that is only available to government agencies and contractors. The withholding of such documents might be susceptible to a focused challenge under the Freedom of Information Act, and DoD apparently wishes to bolster its legal defense against any such challenge.

The Freedom of Information Act provides both for disclosure and for withholding of various government records, so exemptions are part of the package.

But Congress may again decide to reject DoD’s latest proposal because of the Department’s inconsistent and unreliable implementation of the FOIA.

There are FOIA requests dating back as far as 2005 that are still pending at the Defense Intelligence Agency, according to the latest DoD annual report on FOIA. If an agency is unable to act on a valid FOIA request for a decade or longer, a new exemption would be superfluous.

DoD has also taken a relaxed approach to other statutory requirements.

In December 2019, Congress enacted a provision requiring DoD to produce a plan for addressing the backlog of classified documents awaiting declassification. (“Pentagon Must Produce Plan for Declassification,” Secrecy News, December 11, 2019). This was not optional. But it was not done.