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FAS Note: The Defense Department has proposed the following FOIA exemption for foreign government information in its draft version of the Defense Authorization Act for FY 2001, which was recently submitted to Congress. The Pentagon's narrative justification for the measure follows the text of the proposed legislation below. Grammatical and syntactical errors are in the original. See a related news story here.

A BILL

To authorize appropriations for fiscal year 2001 for military activities of the
Department of Defense, to prescribe military personnel strengths for fiscal year 2001,
and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "National Defense Authorization Act for Fiscal Year 2001".

[...]

SEC. 903. AUTHORITY TO WITHHOLD FROM PUBLIC DISCLOSURE CERTAIN SENSITIVE INFORMATION.

(a) IN GENERAL.-- Chapter 3 of title 10, United States Code, is amended by inserting after section 130 the following new section:

"§130b. Authority to protect and withhold from public disclosure certain sensitive information of foreign governments and international organizations

"(a) The Secretary of Defense, the Secretary of the Department in which the Coast Guard is operating, or the Secretary of Energy may withhold from public disclosure otherwise required by law any information described in subsection (b).

"(b) Subsection (a) applies to any information that a foreign government or international organization has provided to, 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 (relying for that determination on the written representation of the foreign government or international organization to that effect) and that any of the following conditions are met:

"(c)(1) In the case of a request submitted to the head of an agency for disclosure of information that came into the possession or under the control of the United States Government before the date of the enactment of the National Defense Authorization Act for Fiscal Year 2000 and more than 25 years before the date on which the request is received by the agency, the information may be withheld only as set forth in paragraph (3).

"(2)(A) In the case of a request submitted to the head of an agency for disclosure of information that came into the possession or under the control of the United States Government on or after the date referred to in paragraph (1), the authority of the Secretary of Defense, the Secretary of the Department in which the Coast Guard is operating, or the Secretary of Energy to withhold the information under this section is subject to the provisions of subparagraphs (B) and (C).

"(B) Information referred to in subparagraph (A) may not be withheld under the section after--

"(C) If no date is applicable under subparagraph (B) to a request for disclosure of any information described in subparagraph (A) that came into possession or under the control of the United States more than 10 years before the date on which the request is received by an agency the Secretary of Defense, or the Secretary of the Department in which the Coast Guard is operating, or the Secretary of Energy may withhold the information withheld under this section only as set forth in paragraph (3).

"(3) Information referred to in paragraph (1) or (2)(C) may be withheld under this section in the case of a request for disclosure if, upon the notification of each foreign government and international organization concerned in accordance with the regulations prescribed under subsection (f)(2) [should be: (g)(2)], any such governrnent or organization requests in writing that the information not be disclosed for an additional period stated in the requests of the government or organization. After considering the requests of the foreign government or international organization, the head of the agency Secretary of Defense, or the Secretary of the Department in which the Coast Guard is operating, or the Secretary of Energy shall designate a later date as the date after which the information is not to be withheld under this section. The later date may be extended in accordance with a later request of any such foreign government or international organization under this paragraph.

"(d) This section does not apply to information or matters that are specifically required to be protected against unauthorized disclosure under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and that are in fact properly classified at the Confidential, Secret or Top Secret level pursuant to such Executive order.

"(e) Nothing in this section shall be construed to authorize the Secretary of Defense, or the Secretary of the Department in which the Coast Guard is operating, or the Secretary of Energy to withhold, or to authorize the withholding of, information from the appropriate committees of the Congress.

"(f) Nothing in this section shall be construed to authorize heads of agencies to withhold, or to authorize the withholding of, information from the Comptroller General, unless the information relates to activities that the President designates as foreign intelligence or counterintelligence activities.

"(g)(1) The Secretary of Defense, or the Secretary of Transportation, and the Secretary of Energy shall prescribe regulations to carry out this section. The regulations shall include criteria for making the determinations required under subsection (b). The regulations may provide for controls on access to and use of, and special markings and specific safeguards for, a category or categories of information subject to this section.

"(2) The regulations shall include procedures for notifying and consulting with each foreign government or international [organization] concerned about requests for information to which this section applies.

"(h) In this section --

"(1) The term 'agency' has the meaning given that term in section 552(f) of title 5, United States Code. The term 'international organization' means:

(b) CLERICAL AMENDMENT.-- The table of sections at the beginning of such chapter 3 is amended by inserting after the item relating to section 130 the following new item:

[...]

Section 903 would fill a void currently in the law to protect two categories of sensitive unclassified information from loss or unauthorized disclosure to the public.

Many allied and other friendly nations have a category of unclassified information that is subject to special controls and protected by law from release outside the government. Some international organizations have similar policies to control and protect sensitive information. 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. Unless the information is classified under Executive Order 12958, there is, however, no legislative authority for withholding it from public release.

Many governments also have a category of classified information not used by the United States, "Restricted." Executive Order 12958, "National Security Information", provides for only three levels of classification: "Top Secret, Secret and Confidential." The Restricted level, lower than Confidential, is used by the foreign governments in a manner similar to the controls for unclassified information described in the preceding paragraph. The information classified as "Restricted" is provided a level of protection in its nation of origin below that required for Confidential by Executive Order 12958 in the United States. If there were an alternative means to protect it while in the custody of the United States Government, it would not, therefore, require classification.

The absence of protection from disclosure under U.S. law results in a difficult dilemma: the foreign nation or organization cannot be assured that the information will be protected from loss or unauthorized release to the public unless it can be classified in the interests of national security under Executive Order 12958. The foreign government information may be and usually is classified at least at the Confidential level as foreign government information "provided in confidence". As a consequence, the information is handled as required by the Executive Order and implementing regulations of the information security program. This means that the security requirements for classified information apply: personnel security clearances for individuals who have access to the information, safes for storing it, and additional precautions in transmitting it. 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 which originated in the other government or organizatiom Ths may require the providing government or organization to classify information that was not previously classified by that government or organization.

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, the United States and the Russian Federation, under a 1993 Memorandum of Understanding, have exchanged significant amounts of sensitive unclassified information in the course of developing confidence and understanding between the military establishments of our respective countries. The Russian government has requested that the exchange of such information be safeguarded in confidence and public release of such information would only be carried out with mutual consent. 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. Further, the Russian government has indicated that unauthorized access to sensitive unclassified information generated under the various cooperative ventures, presently in effect would have a significant chilling effect upon its willingness to provide additional information in the future. Such information is protected by law in Russia. In the absence of similar U.S. legislation, the Russian information must be classified Confidential.

Another example of the difficulties presented by the absence of legislative protection for the information covered by this section is the Defense Cooperation in Arms Program with the NATO and other close allies. Some of these allies use the Restricted classification category to protect sensitive unclassified information; others have separate legislation and some use both legislation and the Restricted category. Because they have these different methods of protecting this sensitive information, the absence of any legislative protection in the United States is a cause for concern among our allies. A great deal of information covered by this section is involved in commercial programs whose costs are increased as the result of the additional security requirements.

Protection for this information would promote more efficient operations in the areas of Security Assistance and International Cooperative Programs by simplifying the process by which the United States protects information considered sensitive by partner nations with proprietary interests in such information. It would assist in addressing situations in which the United States is asked--sometimes by foreign nationals--to release information provided by a foreign government which that government would not release under its own laws. Enactment of this proposal would facilitate the candid exchange of sensitive information with foreign governments in furtherance of national security objectives without resorting to unnecessary and expensive security classification.

There is a dire need for legislation that will permit the protection of "Restricted" information and controlled unclassified foreign government and international organization information, that is protected by law by the originating government, without relying on the classification and other security requirements of the U.S. information security program. This offered amendment would resolve this deficiency. It would require the heads of agencies to promulgate regulations or orders designed to limit access to and the dissemination of properly identified controlled unclassified information provided by or generated together with a foreign government or international organization. In most cases the foreign entity involved would specifically identify the information to be treated as sensitive either when it is obtained by the United States or in writing at some other time. The proposal, however, allows the heads of agencies to determine in the absence of such identification that the information should be protected because the disclosure would have an adverse effect on the availability of the same or similar information in the future. This authority would be delegated by regulation setting forth appropriate guidance for the officials who would make these determinations.

This proposal would provide a specific statutory exemption within the meaning of section 552 of title 5, the United States Code, the Freedom of Information Act (FOIA). The FOIA provides a legislative preference for public access to agency information and records; section 552(b) enumerates a series of narrowly interpreted exemptions from this preference for disclosure. Section 552(b)(3) provides an exemption for those matters specifically exempted from disclosure by statute (other than section 552(b) of title 5), provided that such statute: (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld. This proposal would be such a statute.

This proposal can be implemented with existing personnel and would require no additional funding.

[...]



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