DoD Seeks New FOIA Exemption for Unclassified WMD Info

The Department of Defense is seeking a broad new exemption from the Freedom of Information Act for unclassified information relating to weapons of mass destruction.

According to the proposed legislation, “Examples of such information could include … formulas and design descriptions of lethal and incapacitating materials; maps, designs, security/emergency response plans, and vulnerability assessments for facilities containing weapons of mass destruction materials.”

The proposal is puzzling because most such information, including that which is not classified, is already exempt from the FOIA. Meanwhile, some related categories of information that are not exempt should arguably remain public.

The draft DoD language “is so broad as to potentially sweep everything related to any chemical facility into the exemption,” said Meredith Fuchs, general counsel at the National Security Archive. “There is nothing in here that explicitly protects the public’s need to know some things about these facilities, e.g. violations of the law, lack of required certifications or licenses.”

Furthermore, she said, “the lack of a temporal limit on the withholdability of the information, and the lack of any appeals mechanism, creates a potential black hole.”

She suggested that any such exemption should be more narrowly “focused on what they actually are trying to protect, which I think is vulnerability information DOD learns of regarding private facilities.”

The draft DoD FOIA exemption was first reported in “DOD Asks For New FOIA Exemption Covering WMD-Related Information” by Keith Costa, Inside the Pentagon, April 13.