The Pentagon’s use of FOIA is flawed. Now it wants to make it even stricter. – Washington Post

A wide-ranging group of government transparency advocates asked Congress on Wednesday to block new changes to the Freedom of Information Act requested by the Defense Department, saying that approving them would allow the Pentagon to “excuse itself from the hard fought and necessary reforms.”

The letter, signed by organizations ranging from Human Rights Watch to the National Press Club and released by the Project On Government Oversight, said that language in the Senate version of the proposed 2017 National Defense Authorization Act would provide the military with a new exemption to FOIA that is overly broad and potentially easy to abuse.

The proposal would give the Pentagon the ability to withhold information about unclassified tactics, techniques and procedures used by the Armed Forces. It’s so broad, the letter argues, “it could allow DoD to withhold almost any unclassified document at all related to Defense Department operations and could be used to justify concealing just about any material DoD creates.”

The language was requested by the Pentagon to address concerns about giving potential adversaries advance knowledge of how it operates, according to the letter. A Pentagon spokesman said Wednesday that defense officials were preparing a response to questions by The Washington Post on the matter.

The existing FOIA legislation includes a variety of exemptions under which the government can withhold information. They include revealing classified information, trade secrets, internal personnel practices, or “deliberative or policymaking processes.” The letter argues that the Pentagon already can classify anything it considers sensitive or helpful to a potential enemy of the United States. It was sent to the chairmen of the armed services committees, Sen. John McCain (R.-Ariz.) and Rep. Mac Thornberry (R.-Tex.), and the ranking minority members, Sen. Jack Reed (D.-R.I.) and Rep. Adam Smith (D.-Wash.)

Transparency advocates have long called for the Pentagon to improve its adherence to FOIA, noting that it takes years for some documents to be released. The House Committee on Oversight and Government Reform released a report in January called “FOIA is Broken: A Report,” which said the executive branch of the federal government “encourages an unlawful presumption in favor of secrecy when responding to Freedom of Information Act requests.”

The committee report notes that it is common for government agencies to use delay tactics to withhold information after a FOIA request has been filed, including sending letters in which an agency asks if a requester is still interested in information sought and says a request will be closed if the agency does not receive a response within days. In one case dissected during a committee hearing held last year in advance of the report’s release, Vice News reporter Jason Leopold said the Defense Department offered to settle a FOIA lawsuit with him if he agreed to never file another FOIA request with the Pentagon.

“Whatever the reasons, FOIA has, in many respects, been unacceptably neutered,” the report said. “As this report outlines, obfuscation comes in many forms: impermissible delays, exorbitant fees, improper use of exemptions, and denial by never-ending referrals are just a few.”

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They want their public documents. They’re not taking no for an answer.

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