The Department of Defense should never be exempt from the Freedom of Information Act

The Pentagon, which houses the Department of Defense. (Photo credit: David B. Gleason via Flickr)

The Sunlight Foundation has opposed attempts to use the National Defense Authorization Act (NDAA) as a vehicle for weakening the Freedom of Information Act (FOIA) before, but we’re now calling attention to one of the most ridiculous proposals we’ve seen in recent history: an exemption from FOIA for an entire federal agency.

The version of the NDAA (S.2943), the mammoth spending bill that funds the Department of Defense, that the Senate passed on June 14 included a section which provided for an “exemption of information on military tactics, techniques, and procedures from release under Freedom of Information Act.” The text of the bill that passed the U.S. House on July 7 did not have Section 1054.

In June, Sunlight joined a broad coalition denouncing the FOIA carve-out in the NDAA then and urged Senate leadership to strike the toxic amendment from the bill. As the House and Senate prepare to reconvene in September and dig in to reconcile the differences between the bills this fall, we join dozens of other good government advocates calling on Congress to protect FOIA.

The timing of this effort by the Defense Department to carve out a wholesale exemption for military doctrine this spring is particularly egregious, in the context of efforts to reform the FOIA. While we celebrated the passage of FOIA reform in Congress in June, this provision was advancing in parallel. As Steven Aftergood reported at the National Security Archive, a proposed amendment to FOIA was part of legislative proposals that the Department of Defense sent to Congress in March.

This summer, we learned through the Department of Defense’s inspector general that the Pentagon’s FOIA policies need improvement, not an outright blanket exemption. The reformed FOIA already provides numerous exemptions for national security, deliberations and privacy that the military can and does use.

Given how FOIA has been used to document waste, fraud and misconduct at the Pentagon over the decades, passing such an exemption would be a huge mistake for congressional oversight and public knowledge in general.

For instance, in April 2016 the nonprofit advocacy group Protect Our Defenders used the FOIA to obtain internal documents that showed how the Department of Defense had misled Congress about how the Pentagon handles sexual misconduct allegations.

In 2014, a FOIA request provided the data that enabled Dave Phillips, a reporter at The Colorado Springs Gazette, to report “Other than Honorable,” a series that documented a pattern of the U.S. Army discharged soldiers who had been traumatized and injured soldiers for misconduct that won the Pulitzer Prize.

That same year, Washington Post reporter Craig Whitlock used FOIA to document 400 large military drone crashes for the paper’s investigation of When Drones Fall from the Sky.”

If you dig into the Sunshine in Government Initiative’s FOIA Files, you can find many more examples of how FOIA held the Department of Defense accountable, like a 2006 story in the Philadelphia Inquirer that showed the Pentagon ignored a whistleblower who documented 135 instances of higher prices in contracts that added up to $200 million dollars in wasteful spending.

If you’ve reported on or read a story about the Defense Department that relied upon documents or data obtained from FOIA, please let us know in the comments.

And, if this is an issue that matters to you, we urge you to contact the chairpersons and ranking members of the Committees on Armed Services and let them know that the Pentagon should not be exempted from one of the nation’s most important transparency and accountability laws. You can Email Congress using our tool, call the Senate at (202) 224-3871 or the House at (202) 225-4151 or write to: