Pentagon’s IG moves to practice of disclosure-by-default

Careful watchers of the Defense Department Inspector General’s website will have noticed that over the last few months, the IG has been posting public summaries or redacted versions of its classified or “for official use only” reports — sometimes on the same day the full versions are released to the folks with security clearances.

Records management nerds know this practice as “proactive disclosure,” and under the FOIA Improvements Act, it’s something all agencies are supposed to do if they’ve gotten a request for the same records at least three times.

The DoD IG deserves credit for going one step further via a newly published policy that requires its staff to turn even its classified reports into a publicly-releasable format if doing so is at all possible —  without waiting for anyone to ask for them via the Freedom of Information Act.

It’s a significant change, because until recently, most reports were withheld in their entirety if they contained even a nugget of information that someone in the military, at some point in the investigation, had marked “for official use only.” Yes, a redacted version might have been released several months later, but that was usually in response to a FOIA demand.

“Upon completing a report, regardless of whether there is a FOIA request, the responsible component should thoroughly review its product and determine what, if any portions, still merit being marked FOUO,” Glenn Fine, the acting IG wrote in a memo to all of the top officials of all of the IG’s various components. “The component should release as much information as possible without compromising legitimate privacy interests, privileged records or national security information. When dealing with records that require protection, you should segregate and redact portions requiring protection and release as much other information as possible.”

In a separate memo, Fine placed special emphasis on the IG’s Office of Administrative Investigations. While that division has already been fairly proactive in releasing its investigations into alleged malfeasance by senior DoD officials — especially when the allegations are substantiated — he indicated he wants OAI to also err on the side of proactive disclosure when it comes to its investigations into whistleblower reprisal, a topic of intense Congressional scrutiny at the moment.

That’s the good news. The bad news is that the DoD IG had to jump through some bureaucratic hoops in order to make itself more proactive.

That’s because the 1974 Privacy Act requires agencies to very clearly define any “routine use” they intend to make of information in their record keeping systems about specific human beings via System of Records Notices. The earlier SORN gave fair warning that the records it was collecting might be released if someone asked for them under FOIA — but not that the agency might use the exact same release standards to publish them without a FOIA request.

As a result, the IG had to issue a new SORN and get OMB approval before it could move forward with its current proactive release policies – at least the portions of them that might identify a particular person.

Hopefully that slight road bump won’t deter other agencies from following the DoD IG’s example. It’s plainly true that most FOIA offices are understaffed and overworked, but many of the people involved in creating agency documents could help reduce that workload by clearly identifying discrete pieces of information that could be redacted, if necessary, in order to make their agency’s work more visible to the public — which, by the way, owns the records.

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