A new change to the Air Force's Freedom of Information Act submission portal, asking whether individuals seeking public information from the service would agree to accept only "clearly releasable" information, is alarming First Amendment advocates and government watchdogs.
Military.com discovered the change to the service's portal this month when submitting what's called a FOIA request for government documents that could be used for news reporting and are legally required to be made public upon request. A newly added question asks the filer to check "yes" or "no" and agree in advance to potential redactions of information before submitting their form online.
The FOIA process is used widely by journalists and the public to obtain information from the federal government, including the U.S. military. The responses can shed light on important issues that would otherwise remain hidden in file cabinets and databases, away from public view.
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The often lengthy process of requesting the information includes the option to appeal the government's or the military's interpretation of what can be released publicly. The effect of the Air Force's change is unclear, experts said, but any agreement by requesters at the outset to accept omissions of information without knowing why would be unusual.
"By accepting 'Clearly Releasable' you agree to accept any information that will be withheld in compliance with the principles of FOIA exemptions as a full release," the Air Force's newly updated form explains. "In addition, it may minimize the time process of your request depending on the amount of responsive document(s)."
Ann Stefanek, a spokeswoman for the Department of the Air Force, told Military.com that the change was recently added. "The option was added in an attempt to get information not requiring redaction to the requester faster," she said.
But government watchdogs and First Amendment advocates who spoke with Military.com expressed concern over the change, saying it is unclear what information is considered "clearly releasable" and what would require more intense scrutiny.
Shawn Musgrave, a legal fellow with the Reporters Committee for Freedom of the Press -- a nonprofit organization that has been advising Military.com on the newsroom's FOIA efforts -- said that the Air Force's question doesn't make it clear what a requester is agreeing to.
"It's not always necessarily apparent what is clearly releasable. There often is a fair amount of daylight between what an agency believes must be released and what the requester believes must be released," Musgrave told Military.com. "If I were submitting a FOIA request through the Air Force portal, it's not even clear what I would be agreeing to if I select 'yes' from this drop-down."
Requesting information under the Freedom of Information Act, a 1967 law that requires disclosure of unreleased or uncirculated government information and documents, can be a long and tedious process for journalists, citizens and government watchdogs.
Dan Grazier, a former Marine Corps captain and a senior defense policy fellow for the nonprofit Project on Government Oversight, told Military.com that the new question further complicates an already convoluted process.
"It looks to me like that the Air Force is trying to intimidate people from even requesting records," Grazier said. "There is absolutely information that should be kept out of the hands of potential adversaries, but the amount of information that needs to be withheld is relatively minimal. The rest of this is just an effort to make sure the public can't really question what the government is doing on behalf of us and with our hard-earned tax dollars."
The Air Force's FOIA website says there are nine exemptions for why a request might not be released. The records are considered exempt if they are classified; detail internal personnel rules and practices; exempt by other statute; contain commercial information that would cause competitive harm; pre-decisional or deliberative information; an invasion of personal privacy; compiled for law enforcement purposes; for the use of any agency responsible for the regulation or supervision of financial institutions; or contain geological and geophysical information, like maps concerning wells.
But First Amendment advocates say the burden is on the agency, not the requester, to ultimately determine what information is releasable.
David Loy, the legal director of the First Amendment Coalition, a nonprofit organization committed to freedom of speech, told Military.com that the Air Force's question passes the responsibility to determine what documents are fair game to those requesting information -- and those seeking public documents are at a disadvantage.
"I don't think it's appropriate or fair to put that burden on the requester or even ask the requester to be put to that test of guessing whether and to what extent the requested documents are or are not clearly releasable," Loy told Military.com. "It reverses the presumption and forces the requester to guess what is releasable in the eyes of the agency, and that's just not how FOIA laws work. That's very troubling."
-- Thomas Novelly can be reached at thomas.novelly@military.com. Follow him on Twitter @TomNovelly.
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