FIRST Principles for September 18, 2017


The Trump Administration has requested that federal agencies organize 1-hour training sessions sometime in the coming week on the dangers of unauthorized disclosures of classified information as well as the need to safeguard “controlled unclassified information.”

BuzzFeed News’ Chris Geidner reports that on September 8, National Security Advisory H.LR. McMaster requested that all departments and agencies organize the training sometime the week of September 18-22, 2017. McMaster suggests potential training materials could include a Fox News interview with National Counterintelligence and Security Center Director William Evanina or a video of Attorney General Jeff Sessions’ August press conference decrying leaks.

We certainly hope that to maximize its usefulness the training include discussion of the federal Freedom of Information Act (FOIA), which sets the government’s default to openness. This means that when responding to requests for information, federal agencies must by law start from the presumption that information should be disclosed unless an interest identified in FOIA justifies withholding. Those interests include, for example, personal privacy, trade secrets and protecting properly classified information.

The training could also include the standards for classifying information, the process for declassifying records through automatic declassification and requesting declassification and the persistent problem of overclassification. Finally, the training could explain that since 9/11 the federal government has made strides to simplify control markings on documents and end the use of markings such as “For Official Use Only” that have no basis in law. An important point for government employees to recall is that the federal government has correctly reminded government employees that control markings such as FOUO have no bearing on whether the information should be disclosed once requested under FOIA.


Regardless of one’s view of WikiLeaks itself or WikiLeaks as a publisher, a provision in the¬†intelligence authorization spending bill for fiscal year 2018 (Section 623 of S. 1761) pending before the Senate that would designate WikiLeaks as a hostile, non-state intelligence service should raise concerns for those who care about journalism. McClatchy’s Tim Johnson reports that the provision, which does not publicly define the term “hostile, non-state intelligence service” but may ease the government’s job obtaining approval to surveil those associated with WikiLeaks or its founder Julian Assange. Senate Intelligence Committee members Ron Wyden and Kamala Harris opposed the proposal because the term was not clearly defined, raising unanswered questions about the implications for the news media.


The Centers for Disease Control asserts it “conducts critical science and provides health information that protects our nation against expensive and dangerous health threats, and responds when these arise,” but journalists will not be able to confirm a data point or find a quick answer on deadline if scientists at the agency follow a directive from the headquarters communications team to route all information requests, even routine ones, through the headquarters public relations team. Reporters such as Alison Young have fought CDC for years on FOIA requests (check out her reporting on biological laboratories) and Kathryn Foxhall deserve credit for pushing back vocally at restrictions on reporting from public information officers.

Restrictions on routine conversations with government scientists undermine the ability to accurately report on scientific research or public health issues. Arguing public affairs offices need to coordinate contacts with the media is disingenuous when cutting off all contacts between journalists and government employees, even temporarily.  Public affairs officers can do their jobs while allowing journalists to do theirs. Cutting the flow of accurate, timely reporting only harms the public.

This week Congress is voting on the defense spending bill for the next fiscal year, and one thing we do not expect to be included is a proposed statutory exemption to FOIA that the Defense Department sought to protect tactics, techniques and procedures.

We had the unusual opportunity to sit down with Defense Department officials to listen to why they were seeking a statutory exemption to FOIA. It was extraordinarily helpful to understand that they were concerned that the training they give young, frontline soldiers they felt could be compromised without additional legal authority to deny certain FOIA requests.

The discussion allowed us an opportunity to raise our concern the proposal may prevent public disclosure of factual information and accurate reporting on events such as a friendly fire incident that comes under scrutiny. Any new statutory secrecy provision should be written narrowly and clearly to ensure government attorneys cannot stretch a definition beyond its intended purpose and attempt to hide embarrassing facts or a chain of events that led to tragedy.

We appreciate the hard work of the House Oversight and Government Reform Committee for convening the meeting, the commitment of Senate Judiciary Committee Chairman Chuck Grassley and Senator Patrick Leahy to find pro-transparency solutions, and Defense Department representatives for participating. We hope the process is a model for addressing proposed new carve-outs to FOIA’s presumption of disclosure.

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FOIA FILE: MILITARY SLOW TO RELEASE STUDY ON SAFETY ISSUES FACING F-35 JET FIGHTER’s John Donnelly reports that the military was reluctant to disclose a report concluding another year of work could eliminate pilot casualties caused by problems with the ejection seats on board the F-35 Joint Strike Fighter. Rather than affirmatively disclose the report, the military told Donnelly that he’d have to file a FOIA request.