FOIA Advisor

FOIA News: Resurrection of "high 2"?

FOIA News (2015-16)Allan BlutsteinComment

Defense bill cause transparency jitters

By Josh Gerstein, POLITICO, May 17, 2015

Defense authorization bills winding their way through Congress are prompting alarm among transparency advocates over a series of proposals that would roll back the scope of decades-old sunshine laws, like the Freedom of Information Act.

One measure open government activists reacted to with deep concern over the weekend would effectively overturn a 2011 Supreme Court ruling that broadened access to federal records. It would do so by rejecting a longstanding interpretation of FOIA allowing agencies to withhold information whose release could undermine government operations. The proposed revision appears in a draft of the 2016 National Defense Authorization Act posted online. However, congressional aides said the draft consists of Pentagon-requested language and has not been formally introduced.

The Senate Armed Services Commitee marked up the NDAA last week. Text of the approved bill is not yet available but a press release from the panel makes no mention of changes to FOIA.

The language the Defense Department sought would restore the pre-2011 interpretation that prevailed in many lower courts for several decades before the Supreme Court's 8-1 decision that those lower courts had essentially invented the notion of that exemption (known as "high 2") out of whole cloth.  The proposal allow [sic] agencies to withhold records that are "predominantly internal" if releasing them "could reasonably be expected to risk impairment of the effective operation of an agency or circumvention of statute or regulation."

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