- The Washington Times - Tuesday, March 13, 2012

A U.S. Supreme Court ruling in May that overturned 30 years of established Freedom of Information Act precedent by restricting what federal agencies can keep secret left exposed many different types of sensitive information, a senior Justice Department official told a Senate committee Tuesday.

Melanie Pustay, director of the department’s office of information policy, said the ruling made available critical infrastructure and cybersecurity information, including explosives and weapons data for munitions stored at a U.S. naval facility where the concern was that disclosure would threaten the security of the base and the surrounding community.

Ms. Pustay told the Senate Judiciary Committee that while federal agencies are continuing to make “real progress” in applying President Obama’s election pledge to make government more transparent, Congress needs to act to change the FOIA to keep secret information that might have been put at risk by the high court’s ruling.

She said federal agencies have improved the efficiency of the FOIA processes, reduced backlogs, expanded the use of technology and made more information available proactively. While she said there is “always more work to be done,” the agencies have shown they are improving FOIA compliance and increasing transparency.

But Sen. Chuck Grassley of Iowa, the committee’s ranking Republican, said open government and transparency are “essential to maintaining our democratic form of government,” adding that despite Mr. Obama’s proclamations of transparency when he took office, “the sun still isn’t shining in Washington, D.C.

“Based on my experience in trying to pry information out of the executive branch, I’m disappointed to report that agencies under the control of President Obama’s political appointees have been more aggressive than ever in withholding information from the public and from Congress,” Mr. Grassley said.

“There’s a complete disconnect between the president’s grand pronouncements about transparency and the actions of his political appointees,” he said.

The Supreme Court issued its FOIA ruling on March 7, 2011, holding that Exemption 2 of the Freedom of Information Act encompasses only records on employee relations and human resources issues, and did not include the maps and data concerning explosives sought by the plaintiff.

Washington state resident Gary Milner had filed an FOIA request with the Navy seeking “Explosive Safety Quantity Distance (ESQD)” information for a base near his Puget Sound home. The ESQD prescribes “minimum separation distances” for explosives and helps the Navy design and construct storage facilities for the explosives.

The Navy refused, asserting that disclosure would threaten the security of the base and surrounding community and invoking Exemption 2 of the FOIA, which protects from disclosure material “related solely to the internal personnel rules and practices of an agency.” The district court agreed and the U.S. Ninth Circuit Court of Appeals affirmed that decision.

But the Supreme Court reversed the decision, holding that because Exemption 2 encompasses only records relating to employee relations and human resources issues, the explosives maps and data requested did not qualify for withholding under that exemption.

Sen. Patrick J. Leahy, Vermont Democrat and Judiciary Committee chairman, said the Milner decision was an “important victory for open government,” but that in its wake, Congress is considering several new legislative exemptions to FOIA for critical infrastructure information.

Mr. Leahy said in the decade since the Sept. 11, 2001, terrorist attacks, Congress has wrestled with how best to maintain the balance between government secrecy and the public’s right to know as new threats to national security emerge.

“Government secrecy has its place. But, government officials will always be tempted to overuse the secrecy stamp,” he said. “And when that happens, excessive government secrecy can come at an unacceptable price — harm to the American public’s interests in safety, healthy living and a clean environment.”

In the Milner case, Justice Elena Kagan delivered the opinion of the court, in which Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Samuel Anthony Alito Jr. and Sonia Sotomayor joined. Justice Stephen G. Breyer filed a dissenting opinion.

Ms. Pustay told the committee the preferred course of action in the wake of the high court ruling would be to amend Exemption 2 so its plain language addresses the need to protect against disclosures that would risk circumvention of the law.

She said a proposed legislative amendment would need to take into account the interests of the agencies in preventing circumvention of the law and safeguarding national security, and the shared interests of the requesters and the department in ensuring that exemptions are not crafted too broadly.

• Jerry Seper can be reached at jseper@washingtontimes.com.

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