DOD Tipped Pelosi on FOIA Request

Posted January 25, 2010 at 6:31pm

Five months ago, Roll Call asked the Defense Department for documents relating to Congressional travel on military aircraft.

The Pentagon has not yet responded to the request, but last week a spokesman for Speaker Nancy Pelosi (D-Calif.) contacted Roll Call to inquire about “your FOIA request on the Speaker.—

Apparently, the Defense Department notified Pelosi that Roll Call was asking for Congressional travel records that involve her office.

Freedom of Information Act experts say there is probably nothing illegal about the military tipping off Members that a reporter is snooping around, as long as it is clear that a Member of Congress has no role in deciding what information the military is required to release. Pelosi’s office told Roll Call in a follow-up e-mail that she did not object to the release of any information — and was not provided the opportunity to object by the Pentagon.

“The Speaker strongly supports the Freedom of Information Act,— spokesman Drew Hammill wrote. “It is not unusual for agencies to provide such information nor is it particularly newsworthy to be notified that an agency is following the law by responding to a request under FOIA.—

But Hammill said the Defense Department does not generally alert the Speaker when a FOIA request is submitted for records involving her.

But the military apparently has no official policy of alerting Members to FOIA requests that involve them. Instead, Pentagon officials say, it is more or less an ad hoc courtesy extended when it seems the subject matter is likely to be sensitive or of broad interest.

One Pentagon FOIA officer who asked not to be identified by name said: “There is no formal policy. … They are not necessarily made aware of the request, but … out of common courtesy and typically because of the level of interest, we do inform the office of the Congressman of the inquiry.—

Defense spokeswoman Cynthia Smith said in an e-mail, “FOIA requests are not secret or confidential, and informing Members of Congress whose names are contained in records that are responsive to requests is a courtesy appropriate to a co-equal branch of the government.—

Roll Call’s request was not limited to the Speaker, and it is not clear whether the military contacted other Members to let them know that Roll Call was seeking travel-related documents.

FOIA requests are themselves public documents, and federal agencies maintain logs of FOIA requests that are available for public perusal. But generally those logs provide information only on requests that have been completed, not ongoing matters.

David Sobel, senior counsel for the Electronic Frontier Foundation, said: “It strikes me as a little odd. They could argue that as a matter of interbranch protocol, they like to give them a heads-up— about a FOIA request, but the fact that the “heads-up— apparently included the name of the reporter and some details of the subject matter makes it a little more troubling. “Is that an appropriate disclosure? … I would be interested to know whether it is just an unwritten practice as just an interbranch protocol or there is actually written guidance.—

Meredith Fuchs, general counsel at the National Security Archive, an organization focused on government transparency, said, “I don’t think that it’s unheard of for them to warn them … [but] as a matter of law I don’t think that a Member of Congress has any say— about what information should be released under FOIA.

Fuchs added that it seems inappropriate that the Pentagon would be able to provide information to a Member about a FOIA request before providing information to the person who made the request.