Pentagon Asks Congress for Authority to Withhold Some CUI Records From FOIA

The Pentagon sent a legislative proposal to Congress in late June seeking authority to withhold certain unclassified records from public disclosure under the Freedom of Information Act. The measure would create a new section of federal law allowing the defense secretary to exempt controlled unclassified information if the military determines the records concern national defense vulnerabilities and the harm from disclosure outweighs the public interest.

Controlled Unclassified Information was established under an executive order during the Obama administration.

The National Archives oversees the program and has repeatedly stated that CUI designation does not affect whether records may be released under FOIA. The proposal would instead treat CUI as a basis for withholding records altogether. The measure would also allow the Defense Department to block state and local governments from releasing covered records under their own open records laws.

Pentagon officials described the proposal as an effort to protect sensitive military information from foreign adversaries. The request comes after the Pentagon imposed new restrictions on reporters' access inside its headquarters over the past year. The New York Times filed lawsuits challenging both a required nondisclosure agreement for journalists and the new escort policy.

Federal judges ruled for the Times in both cases on First Amendment grounds, and the Pentagon has appealed the decisions. Greg Williams, director of the Center for Defense Information at the Project on Government Oversight, called the proposal a significant concern. He said existing FOIA exemptions already cover much of the information the Pentagon seeks to protect.