Inside the PentagonIn proposed legislation . . .
(reprinted by permission)
April 6, 2000
DOD SEEKS TO EXEMPT FOREIGN INFORMATION FROM PUBLIC DISCLOSURE LAWThe Defense Department is proposing legislation that would allow the secretaries of defense, energy and treasury to withhold information from public disclosure that was given to U.S. officials by foreign governments.
If adopted, the bill language would amount to an additional "specific statutory exemption" to public disclosure requirements under the Freedom of Information Act, according to a package of proposed legislation DOD sent to Capitol Hill last month. Lawmakers will consider the entire set of proposals as they craft the fiscal year 2001 defense authorization bill.
The exemption grants authority to the secretaries to withhold "information that a foreign government or international organization has provided to, or otherwise made available to, or produced in cooperation with the United States, if the secretary concerned determines that the foreign government or international organization is withholding the information from public disclosure," the bill states.
The information, however, could be withheld only under the following conditions:
The bill language does not apply to information classified as confidential, secret or top secret under criteria established by executive order, it adds.
- "The foreign government or international organization requests, in writing, that the information be withheld;
- "The information was provided or made available to the [U.S.] government on the condition that it not be released to the public; [and]
- "The information is an item of information, or is in a category of information, that the secretary concerned has specified . . . would have an adverse effect on the ability of the United States government to obtain the same or similar information in the future."
Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy, called the bill language "disturbing."
"It looks like a further erosion of the Freedom of Information Act," he told Inside the Pentagon this week. "I think it's bad policy to blur the distinction between classified and unclassified. I think it's a shame to tamper with the Freedom of Information Act when the government already has the ability to protect what needs to be protected."
Only classified information can be withheld from the public under FOIA, but this bill would allow the government to withhold unclassified information obtained from foreign entities, he said. Further, the bill would allow U.S. officials to forego the security burdens that accompany handling classified documents.
"This bill is saying if the government wants to withhold foreign information, even if it's not classified, they can," he added.
The purpose of the proposed legislation, according to DOD, is to "fill a void currently in the law to protect two categories of sensitive unclassified information from loss or unauthorized disclosure to the public." By keeping such information out of public hands, the Pentagon can encourage information sharing with allies, defense officials say.
Allied and other nations, the proposed bill notes, control the public release of certain categories of unclassified documents, and international organizations have similar policies to "protect sensitive information," according to a DOD analysis document accompanying the bill.
"Often this type of information is provided to a U.S. department or agency only on the condition that it will be handled in confidence and access will be limited as it is by the providing nation or organization," it says. "Unless the information is classified under Executive Order 12958, there is, however, no legislative authority for withholding it from public access."
The analysis notes that many governments also use a category of information not used by the United States called "restricted." Information controlled as restricted "is provided a level of protection in its nation of origin below that required" for confidential information -- the lowest classified status -- in the United States.
The bill calls for the protection of "restricted" information in the United States without relying "on the classification and other security requirements of the U.S. information security program." NATO allies have expressed particular concern that there is no U.S. statute to keep such information from the public, the analysis says.
Without the proposed legislation, U.S. officials will continue to face a "difficult dilemma," the analysis states. On one hand, foreign governments and international organizations cannot be guaranteed that information they provide will be "protected from loss or unauthorized release to the public unless it can be classified in the interests of national security."
On the other hand, if the information provided is classified, clearances will have to be provided to personnel who handle the information, and a number of security procedures for storing and transmitting the data and related documents will come into play.
"Moreover, if the information is returned to the providing government or organization, or incorporated into joint documents, confusion usually results from the increased security requirements imposed by the United States on information that originated in the other government or organization," the analysis states. As a result, those foreign governments and organizations will be required to classify the information themselves.
"This deficiency in the present state of the law imposes unnecessary costs and has serious consequences for cooperative defense programs between the U.S. and other countries."
For example, Russia and the United States, under a 1993 memorandum of understanding, exchange "significant amounts" of unclassified but sensitive information as a confidence-building measure, the analysis states.
"The Russian government has requested that the exchange of such information be safeguarded in confidence and [that] public release of such information would only be carried out with mutual consent," it adds. "The Russian Ministry of Atomic Energy has specifically designated scientific, technical and operational information related to national security issues as sensitive, regardless of classification, and has requested that the United States control access to this information."
Inaction on the proposed legislation, the analysis continues, could have a "chilling effect" on Russia's willingness to share such information with the United States in the future.
"I think that argument's a red herring," Aftergood said. "The information could be classified at a confidential level, if needed, and adequately protected without eroding the Freedom of Information Act." -- Keith J. Costa