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Inside the Pentagon
October 12, 2000

Law applies to 'sensitive information' from other nations

CONFERENCE BILL WOULD EXEMPT FOREIGN INFORMATION FROM DISCLOSURE

House and Senate conferees working on the fiscal year 2001 defense authorization bill have adopted a provision that would exempt from public disclosure certain unclassified information provided to the Defense Department from foreign governments.

The language would allow the defense secretary, transportation secretary and energy secretary “to withhold from public disclosure otherwise authorized by law sensitive information provided by a foreign government, or an international organization, which is itself protecting the information from disclosure," according to the conference report accompanying the bill. Conferees completed work on the legislation last week.

Yesterday (Oct. 11), the House passed the defense bill by a 382-31 vote. The Senate could vote on the bill today.

The exemption would not authorize withholding information from Congress or the comptroller general, who can be denied access to information pertaining to foreign intelligence or counterintelligence activities, the report states.

The provision was included earlier this year in the Senate version of the defense bill at the Pentagon's behest. In March, DOD sent to Capitol Hill a package of proposed legislation for authorizers to consider in crafting the defense bill; the package contained language exempting such information from public disclosure laws like the Freedom of Information Act (Inside the Pentagon, April 6, p1).

The purpose of the legislation 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," according to DOD. Defense officials also expressed confidence that the legislation would foster information sharing among allies.

Pentagon officials are concerned they must designate information provided by foreign entities as classified to keep it out of the public domain in the United States, which means satisfying a number of costly security requirements.

The provision adopted by conferees would allow the defense, transportation or energy secretary to withhold information from disclosure based on the following determinations:

In addition, information from foreign sources can be withheld from disclosure if the source asks U.S. officials to withhold the information in writing or if the release of the information by U.S. officials would hamper efforts “to obtain similar information in the future," the bill states.

The bill language was sharply criticized by Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy.

In an April interview with ITP, Aftergood called the provision “disturbing" for allowing a “further erosion of the Freedom of Information Act." Presently, only classified information can be exempted from the FOIA.

“I think it's bad policy to blur the distinction between classified and unclassified," he said. “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."

Aftergood and representatives from 15 other public interest groups sent an April 18 letter to the chairmen of the House and Senate Armed Services Committees to protest exempting information from foreign sources from public disclosure laws (ITP, April 20, p23).

The group called the DOD proposed legislation “obsolete" and “unnecessary" because of executive order 12958, which President Clinton signed in April 1995.

The executive order “already provides the full degree of flexibility needed to efficiently protect foreign-government information that has been provided in confidence, without increased security requirements," they wrote. The order provides information from foreign sources “a degree of protection at least as equivalent to that required by the entity that furnished the information."

Creating a new exemption to the FOIA, as proposed by DOD, would “tend to erode" the law, the letter said. “The executive branch's proclivity for new FOIA exemptions threatens the FOIA with the death of a thousand cuts."

Aftergood told ITP this week that the lawmakers never responded to the April missive. He expressed concern that “there was no deliberation about this provision [and] no alternatives were considered." -- Keith J. Costa




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