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Secrecy Concerns in the Defense Bill

August 17, 2011 - by Donny Shaw

The Project on Government Oversight has flagged a potential government secrecy concern in the Defense Authorizations bill the Senate is expected to vote on when they come back from recess. The issue is a provision three-quarters of the way through the 539-page bill that would give the Department of Defense broad authority to exempt unclassified information from public disclosure via the Freedom of Information Act, including information that may be relevant to public health and safety.

Here’s the text of the section:


(a) Critical Infrastructure Information- The Secretary of Defense may exempt Department of Defense critical infrastructure information from disclosure under section 552 of title 5, United States Code, upon a written determination that the disclosure of such information would reveal vulnerabilities in such infrastructure that, if exploited, could result in the disruption, degradation, or destruction of Department of Defense operations, property, or facilities. Critical infrastructure information covered by a written determination under this subsection that is provided to a State or local government to assist first responders in the event that emergency assistance should be required shall be deemed to remain under the control of the Department of Defense.

Although the provision is clearly intended to keep sensitive information out of the hands of terrorists, it’s written so broadly that it could be used by the military to keep secret any information about their facilities that they’d rather not share for other reasons.

Activists in Port Townsend, WA believe that the provision has been inserted in the Defense bill in order to nullify a recent Supreme Court ruling that compelled the Navy to release information describing the storage of explosives under FOIA. Specifically, they believe it is intended to help the Navy hide public safety information about weapons on Indian Island in Port Townsend Bay. “The Navy increased the amount of explosives at the explosives handling wharf by 33 percent in order to accommodate a larger type of container ship,” they write. “If the Navy is out of compliance with rules regarding safe distances for explosive handling we have a right to know.”

Sen. Patrick Leahy [D, VT] is supporting an amendment to the provision that would require the Defense Department to balance the public’s right to know against the public interest in withholding when deciding to exempt information from FOIA under the provision. If you’d like to write to your senator regarding the bill, you can do so with our brand new, open-source Contact-Congress tool right here.

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