FOIA Follies

The House late last month passed a measure attached to the fiscal year 2012 defense authorization bill that would significantly narrow the reach of an amendment the Defense Department had sought to exempt critical infrastructure information from disclosure requirements under the Freedom of Information Act, Defense Environment Alert reports this morning:

DOD sought the exemption following its failure to persuade the Supreme Court to use a personnel rules exemption in FOIA to protect weapons depot safety maps from disclosure.

Open government groups were successful in paring back what they considered to be a blanket exemption DOD had requested that they feared would have used the guise of protecting critical infrastructure information as pretext for withholding all types of data, one open government source says. Sources say the revised amendment is significantly narrower than the version DOD had sought, paring back the type of information that can be withheld and adding a balancing test for the public interest.

In its passage of the FY-12 defense authorization bill May 26, the House approved an amendment sponsored by Rep. Carolyn Maloney (D-NY) that would exempt DOD critical infrastructure security information from FOIA disclosure requirements provided the data's disclosure would result in "the disruption, degradation, or destruction of operations, property, or facilities of the Department of Defense," the language says. For the exemption to take effect, the defense secretary would also have to determine that "the public interest consideration in the disclosure of such information does not outweigh preventing the disclosure of such information."

Further, the amendment defines DOD critical infrastructure security information, saying this term means "sensitive but unclassified information related to critical infrastructure information owned or operated by or on behalf of [DOD] that could substantially facilitate the effectiveness of an attack designed to destroy equipment, create maximum casualties, or steal particularly sensitive military weapons including information regarding the securing and safeguarding of explosives, hazardous chemicals, or pipelines." It also calls on DOD to write regulations to implement the measure.