Freedom of Information in the Time of COVID-19
Project on Government Secrecy / Federation of American Scientists: Secrecy News Blog Volume 2020, Issue No. 5
(March 30, 2020) — The Department of Defense is quietly asking Congress to rescind the requirement to produce an unclassified version of the Future Years Defense Program (FYDP) database.
Preparation of the unclassified FYDP, which provides estimates of defense spending for the next five years, has been required by law since 1989 (10 USC 221) and has become an integral part of the defense budget process.
But the Pentagon said that it should no longer have to offer such information in an unclassified format, according to a DoD legislative proposal for the pending FY 2021 national defense authorization act.
“The Department is concerned that attempting publication of unclassified FYDP data might inadvertently reveal sensitive information,” the Pentagon said in its March 6, 2020 proposal.
“With the ready availability of data mining tools and techniques, and the large volume of data on the Department’s operations and resources already available in the public domain, additional unclassified FYDP data, if it were released, potentially allows adversaries to derive sensitive information by compilation about the Department’s weapons development, force structure, and strategic plans.”
Therefore, DoD said, “This proposal would remove the statutory requirement to submit an Unclassified Future Years Defense Program (FYDP) to the Congress, the Congressional Budget Office, the Comptroller General of the United States, and the Congressional Research Service.” It follows that FYDP data would also not be included in the published DoD budget request, as it typically has been in the past.
The DoD proposal would preserve a classified FYDP for Congress but it would repeal the requirement that DoD officials “certify that the data used to construct the FYDP is accurate.” DoD said that “This requirement is unnecessary as information from these systems is already used to provide the President’s Budget.”
The Unclassified FYDP Helps Inform Budget Analysis
At a time when it is clear to everyone that US national security spending is poorly aligned with actual threats to the nation, the DoD proposal would make it even harder for Congress and the public to refocus and reconstruct the defense budget.
Without an unclassified FYDP, Congress and the public would be deprived of unclassified analyses like “Long-Term Implications of the 2020 Future Years Defense Program” produced last year by the Congressional Budget Office. Other public reporting by GAO, CRS, the news media and independent analysts concerning the FYDP and future defense spending would also be undermined.
Some information in the FYDP — such as projected intelligence spending — has always been deemed sensitive enough that it can be classified.
But most information in the FYDP is unclassified and is properly the subject of public oversight. So, for example, the recent FY2021 defense budget request for military construction includes an “FY21 FYDP Project List” identifying numerous proposed construction projects across the country and around the world that are anticipated through 2025.
DoD No Longer Publishes Its Legislative Proposals
Until two years ago, DoD published its legislative proposals to Congress on the website of the DoD General Counsel. (The proposals for FY 2019 are still online.) But that is no longer the case. As part of a broader retreat from public oversight and accountability, the Pentagon today does not make its legislative proposals easily accessible to the public.
A copy of the current package of DoD legislative proposals through March 6, 2020 was obtained by Secrecy News. A complete tabulation of the dozens of specific proposals is available here. A section-by-section description of all of the proposals is here.
Among the current batch is a proposed exemption from the Freedom of Information Act for certain unclassified documents concerning military tactics, techniques, or procedures.
That very same proposed FOIA exemption has previously been rejected by Congress on at least four prior occasions. So legislative approval of such requests is not necessarily a foregone conclusion.
Late last week, the House Armed Services Committee filed a preliminary version of the FY21 defense authorization act (HR 6395) based on the DoD legislative proposals. “When the Committee meets to consider the FY21 NDAA, the content of H.R. 6395 will be struck and replaced with subcommittee and full committee proposals,” according to a March 27 news release.
FREEDOM OF INFORMATION IN THE TIME OF COVID-19
In principle, the COVID-19 outbreak could provide a compelling new justification for expediting the processing of certain Freedom of Information Act requests related to the pandemic. But it is more likely to slow down the handling of most requests as agency employees work remotely and other concerns are understandably prioritized.
The impact of COVID-19 was surveyed by the Congressional Research Service in Freedom of Information Act (FOIA) Processing Changes Due to COVID-19: In Brief, March 27, 2020.
Other noteworthy new and updated reports from CRS include:
• U.S. Role in the World: Background and Issues for Congress, updated March 27, 2020
• The Employment-Based Immigration Backlog, March 26, 2020
Demographic and Social Characteristics of Persons in Poverty: 2018, March 26, 2020
• Occupational Safety and Health Administration (OSHA): Emergency Temporary Standards (ETS) and COVID-19, March 26, 2020
• Arms Control and Nonproliferation: A Catalog of Treaties and Agreements, updated March 26, 2020
Congressional Use of Advisory Commissions Following Crises, CRS In Focus, March 25, 2020 Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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