Why We Shouldn’t Trust DOD to Tell Us What We Need to Know

Over the last month, OpenTheGovernment.org has worked with several of our coalition partners to fight a secrecy measure included in this year’s defense authorization bill. Under the guise of protecting the public from threats, the Department of Defense (DOD) is essentially asking to be able to keep secret any information that relates to their critical infrastructure. Why on earth is that a problem, you may ask? Well, the definition for "critical infrastructure information" proposed by DOD would allow them to keep information that is even more critical to public health and  safety out of the public’s hands, and they have used similar arguments to hide such information in the past.


The measure is in large part a reaction to a recent Supreme Court ruling in Milner v. Department of Navy. The case began when the Navy refused to give Mr. Milner copies of exploding arc maps that measure the potential radius of an explosion’s impact citing  Exemption 2 of the Freedom of Information Act (FOIA), which relates to "personnel rules and practices." The Supreme Court found that the government’s interpretation of Exemption 2 was overly-broad, meaning the Navy could no longer withhold the maps under that exemption.


So, why did Mr. Milner want the maps? Mr. Milner is concerned some of the explosives in the facility could reach its neighbors. Anyone living near such risks has a right to know and DOD should release enough information in order for the communities to be able to identify the risk.  Additionally, the public should be able to obtain this information unless it is appropriately exempt under the FOIA. Our colleagues over at the Project On Government Oversight – POGO have another example of DOD hiding information that is important for the public in the name of security – this time DOD hid information about contaminated drinking water at Camp Lejune, NC.


Granting DOD carte-blanche to withhold information under an exceedingly broad and ill-defined rubric of "critical infrastructure information" is not the right step, especially when DOD has yet to prove they need a new exemption. The information DOD claims to be concerned about releasing could very well already be protected under one of FOIA’s other 8 exemptions.


Our partners worked with Representative Carolyn Maloney (D-NY) to amend the House-passed version of the bill to direct the Secretary of Defense to weigh the public interest in release of the information against any possible threats. The Senate-version, which has yet to reach the floor, has no such balancing provision. As the bill moves forward, we will continue to work with our partners to try to limit the scope of or remove the provision.

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