The Freedom of Information Act (FOIA), enacted in 1967, allows the public to request federal government records. It is designed to require disclosure of US government records in the absence of any of its 9 exemptions for things like privacy, national security, and law enforcement.
Now, the Department of War (DoW) has asked Congress for additional exemptions to disclosing documents under (FOIA). DoW has submitted a legislative proposal to create an exemption for controlled unclassified information (CUI).
FOIA
FOIA generally states that agencies “shall make the records promptly available to any person.” 5 U.S.C. § 552. However, it includes a long list of exemptions for the following categories:
- certain information “established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order”
- “related solely to the internal personnel rules and practices of an agency”
- “specifically exempted from disclosure by statute”
- “trade secrets and commercial or financial information obtained from a person and privileged or confidential”
- certain “inter-agency or intra-agency memorandums or letters”
- “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”
- “records or information compiled for law enforcement purposes”
- certain information related to “supervision of financial institutions”
- “geological and geophysical information and data, including maps, concerning wells”
Courts have interpreted these exemptions and made some of them pretty broad. A Supreme Court decision from 2019, for instance, held that commercial or financial information is “confidential” and cannot be disclosed under FOIA where it is treated as private by its owner and provided to the government under an assurance of privacy.
The Proposed Exemption
Now, DoW has sought an additional exemption that would limit record available to the public.
The legislative proposal states that the DoW may exempt information from FOIA when it makes a written determination that certain information is both (1) “controlled unclassified information” and (2) “Department of Defense national security information.” Plus, the DoW must determine that “the public interest consideration in the disclosure of such information does not outweigh the harm to the Department of Defense of the disclosure of such information.”
CUI is defined the same way under Executive Order 13556, which directs that the federal government establish categories of “unclassified information for safeguarding or dissemination controls.” 32 CFR Part 2002 “Controlled Unclassified Information” establishes policies for designating, safeguarding, disseminating, marking, decontrolling, and disposing of CUI. So, that is a broad category of information that the government wants to safeguard.
What is “Department of Defense national security information”, then? That is defined as “national defense information … that has been determined to require protection against unauthorized disclosure” and “; and “that, if disclosed, would reveal vulnerabilities in Department of Defense national defense operations or programs that, if exploited, would likely result in the significant disruption of, or damage of or to, Department of Defense operations or protected programs.” So, this could mean anything that could disrupt DoW operations if it fell into the wrong hands. That is a very broad definition.
DoW would make these determinations of nondisclosure available: “Each determination under subsection (a) shall be made in writing and accompanied by a statement of the basis for the determination. All such determinations and statements of basis shall be available to the public, upon request.”
The proposal describes its purpose in plain language:
This proposal would protect Department of Defense national security information from public disclosure where the information would reveal vulnerabilities in Department of Defense national defense operations or programs to potential adversaries. While some controlled unclassified information (CUI) categories have non- disclosure requirements or authorities in law, a more uniform protection for national security information that has been designated as CUI will greatly reduce complexity and result in more consistent withholding decisions.
So, it seeks to expand the exemptions that DoW could use for responding and excluding information from FOIA requests. If enacted, this rule would allow DoW to not provide records for much of the CUI it holds. It seems to want to expand the exemption for classified information to non-classified information if there is any risk it could cause disruption to operations. It will be interesting to see if Congress will go along with this expansion of the FOIA exceptions.
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