Uncoordinated Response to SCOTUS Decision Threatens Public Access

Transparency and openness advocates’ concerns about government agencies’ likely responses to the recent Supreme Court ruling in Milner v. Department of the Navy were strengthened this week when we learned that the Department of Defense (DOD) has asked Congress for at least two Exemption 3 statutes that are clearly in response to the ruling. DOD’s request is part of the package of legislative proposals the department sent to Congress for inclusion in the National Defense Authorization Act for Fiscal Year 2012.

Almost a month ago, OpenTheGovernment.org and several of our partners sent a letter to Administration requesting they set up a process to review and coordinate proposals from agencies that would add new protections for previously withheld information that may be subject to disclosure as a result of the Court’s ruling that the government was interpreting Exemption 2 of Freedom of Information Act (FOIA) in an overly broad fashion to withhold all “predominantly internal” materials.

The letter also asks that congressional committees with jurisdiction over FOIA be notified and consulted about all proposals that would require legislation. Such a process will help make sure new exemptions from public disclosure are not overly-broad or unnecessary. These proposals are small provisions that are often tucked within large bills, as exemplified by the DOD requests. Because the provisions do not directly amend FOIA, the bills rarely are referred to Congressional Committees with expertise in public access to information, and are often times not even noticed until after the bill is passed into law.

The Administration has yet to respond to our proposal. We will continue to raise this issue with the Administration and Congress.

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