Revealed: The 95 FOIA Requests Flagged for Pentagon Approval

A few weeks ago, the nonpartisan organization Cause of Action posted a story on its website about a secret Pentagon policy that calls for certain Freedom of Information Act (FOIA) requests that may generate media attention to first be approved by the Pentagon.

Naturally, I was eager to find out what FOIA requests analysts believed would be of interest to the Pentagon. So, I filed a FOIA for a copy of the list of those FOIAs.

On Friday, the Office of Secretary of Defense/Joint Staff sent me the list. It makes for interesting reading. 

The five-page document identified 95 undated FOIA requests filed with the Army, Navy, Air Force, NSA, Defense Logistics Agency, Secretary of Defense, United States Southern Command, National Guard Bureau and other offices that had “Department Level Interest.”

In a letter accompanying the document sent to me, Adrienne Santos, a DoD FOIA analyst, noted that this so-called Department Level Interest list of FOIA requests did not exist prior to November 2012.

One standout request included six separate FOIAs sent to the NSA for “What a Wonderful Success,” a document that apparently served as the basis for one of the felony counts in the prosecution of former NSA whistleblower Thomas Drake. The requesters, who included Steven Aftergood of Secrecy News, USA Today, The New York Times, The Washington Post and George Washington University’s National Security Archive, a transparency organization, also sought “two discovery letters related to the document.” 

The “What a Wonderful Success” document was released in July 2012, Aftergood reported on his blog. But it’s unclear whether the two discovery letters were also released. [UPDATE: Aftergood informed me this morning that the two discovery letters have also been released.]  

Other requests included several filed with the Army for documents related to the pre-trial hearing of Pfc. Bradley Manning; Air Force contracting documents; Guantanamo records; congressional correspondence; presidential travel documents; “investigations of violent crimes allegedly committed by civilian contracts in Iraq or Afghanistan” American University filed with the Defense Contracting Management Agency (DMCA); two requests filed by The Washington Post with the Navy for drone investigations and a June 11, 2012 “drone mishap”; and records sought by the conservative group Judicial Watch related to a March 2013 President Obama’s daughters took to the Bahamas (numerous requests filed by Judicial watch are included among the 95 FOIA requests sent to the Pentagon for approval). 

The policy, which Cause of Action said it discovered from a document it obtained from the Department of Defense’s (DOD) inspector general, applies to all defense FOIA offices. Here’s how it works: any FOIA request deemed to be “significant” and have “Department Level Interest (DLI)” must first undergo a Pentagon review and receive “Department Level Clearance” before a response is issued and/or records are released.

“A ‘significant’ FOIA request is one where, in the Component’s judgment, the subject matter of the released documents may generate media interest and/or may be of interest or potential interest to DoD senior leadership,” the policy document states. “Any requests involving the current administration (including request for information on Senator Obama) previous administrations, and current or previous DoD leadership. Requests involving members of Congress should also be considered.”

DoD’s Freedom of Information Policy Office (DFOIPO), which, as Cause of Action noted, “is responsible for the formulation and implementation of FOIA policy guidance for DoD” handles the Department Level Clearance.

Cause of Action said the secret policy, which smacks of politicization, could delay the production of responsive records.

Nate Jones, of GWU’s National Security Archive, agrees. [Full disclosure: National Security Archive was a recipient of the crowd-funding grant from the Freedom of Press Foundation].

“I don't think it's good,” Jones told me, referring to the policy. “FOIA officers should be trained to review documents for exemptions and release them solely on that criteria without politicization from higher ups. Real world examples of this DoD behavior are the centralization at DoD headquarters of all Bin Laden raid FOIAs (so say if I sent a request to the Navy, instead of processing it like they do for most documents, they'd give it to headquarters to decide. Same with requests on Guantanamo.”

Jones noted the watchdog group Citizens for Responsibility and Ethics in Washington (CREW) discovered that other government agencies, notably the Department of Homeland Security and Securities and Exchange Commission, also require certain FOIA requests to be screened by top officials in those agencies before requests are issued, increasing “the opportunity for political interference.”

All of the 95 FOIA requests on the list sent to me are closed, indicating the Pentagon authorized responses to be sent out to requesters after it reviewed the requests. I intend to file separate FOIA requests with the defense agencies' FOIA offices to find out the status of those requests and whether there was any political interference in the process.