Pentagon officials seek FOI exemption for unclassified foreign information

Thursday, April 20, 2000

The Pentagon has asked Congress to create a new exemption to the federal Freedom of Information Act that would allow government officials to seal unclassified information received in confidence from foreign entities.

Department of Defense officials say the absence of such an exemption creates a void in national security because the United States doesn’t have a classification category to handle a number of such documents.

“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,” the officials wrote in a brief to the Senate Armed Services Committee.

But open-government advocates say existing law allows government officials to seal most foreign documents they deem necessary to keep secret. But, they note, Executive Order 12958 states that such information only be provided “a degree of protection at least equivalent to that required by the entity that furnished the information.”

And U.S. safeguards under the order “may be less restrictive than the safeguarding standards that ordinarily apply to U.S. confidential information,” the advocates from groups such as OMBWatch and the Federation of American Scientists wrote in a letter to the Senate committee.

“No security upgrade is required to protect foreign information that has been provided in confidence,” the letter continues. “No additional costs are entailed. Equivalency of protection is sufficient. There is no remaining basis for the DOD proposal.”

The Pentagon’s latest effort to create exemptions to the federal Freedom of Information Act follows congressional action last year to stop an unprecedented wave of declassification by the White House.

Between 1995 and 1998, the government declassified more than 600 million pages of documents as part of a 1995 order from President Clinton. But Congress slashed the declassification budgets of many governmental agencies, effectively ending that effort.

The Pentagon proposal, too, comes just four months after the U.S. Supreme Court set aside U.S. v. Weatherhead, a ruling out of Washington state that thwarted the administration’s attempt to keep secret a letter received from British officials about a British woman’s extradition to face criminal charges in the United States.

But defense officials and open-government advocates agree that the Pentagon’s latest exemption request has nothing to do with either of the two situations. The effort to seek the foreign-documents exemption started before Clinton’s order even though it surfaced only recently as a piece of legislation.

Defense officials say many foreign governments have a level of classified information called “Restricted,” a category not used by the United States. “Restricted” is a lower level category than any of the three — confidential, secret and top secret — used by U.S. officials.

Classifying documents can be costly, they say, and could pose problems particularly when such information has to be exchanged or obtained again.

Defense officials say they want to protect foreign information without relying on the classification and security requirements of the U.S. information security program.

The proposed legislation would allow government officials to seal unclassified information from foreign entities if those officials requested it in writing; they provided the information in confidence; and the information’s release might adversely impact the ability of the United States to obtain such information in the future.

But Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, says the legislation clouds the distinction between classified and unclassified.

“I think we have to be wary of adding any new exemption to FOIA because every new exemption renders FOIA less effective,” Aftergood said. “There are a number of important international programs involving arms agreements and trade coming up. As long as those documents are unclassified, they ought to be open to public scrutiny.”