Dark data for Sunshine Week
Federal agencies appear to have an ever-expanding definition of information that relates to national security. They have cited that reason more than any other, over the last year, in refusing to release information sought by citizens and the media.
In recognition of Sunshine Week this week, the Associated Press has conducted an analysis of freedom of information requests made to numerous federal agencies last year. It found that those agencies cited national security concerns in rejecting more than a third of all of those requests, and it released only partial information, on the same grounds, in 65 percent of cases in which it released any data.
Some of the requested data undoubtedly would have compromised national security, but there is no way to assess that, a problem nicely summarized by U.S. District Judge Colleen McMahon of New York City, in a case in which The New York Times had been denied access to government legal opinions relative to drone strikes. She cited an "Alice in Wonderland" predicament: "I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules - a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret."
Many of the FOIA rejections were from the Pentagon, CIA and Department of Homeland Security, but the scope of the national security nondisclosure claim was amazing. Agencies that used that reason to reject FOIA requests included the FDIC, the FCC and the departments of Agriculture, Transportation, Commerce, Energy, Treasury and Veterans Affairs. The AP also found that, even when many agencies released data, they slow-walked the requests.
Congress should tighten the disclosure law to ensure that agencies withhold only those documents legitimately tied to national security.