Secrecy News writes that the DOD is again seeking a FOIA exemption in the NDAA for FY2019. This is the fourth time that the DOD has sought to exempt some of its information via the NDAA, the first three times were not successful.
The reason behind these attempts is that in 2011 the Supreme Court ruled that information that agencies protected under FOIA Exemption 2 could not be protected by that exemption because Exemption 2 only applied to personnel matters. There has been a large hole since then in protecting information that agencies feel should be protected (an example of which would be software code that is not covered by a law enforcement exemption but could cause harm to the agency if released). In the negotiations leading up to the FOIA amendments of 2016, DOJ did not push forth any type of fix for this perceived deficiency, which has led individual agencies, such as DOD to propose their own agency specific fixes. The problems with doing it this way is that it doesn't fix the problem for all agencies and it doesn't go through the normal channels for review of FOIA legislation.
It would be nice if Congress actually used their oversight powers to hold open hearings on what is needed to fix agency perceived issues resulting from the Milner decision and then proposing legislation, with all sides weighing in, that could fix the problem once and for all. Having an agency put FOIA legislation in appropriation funding is not the correct way to go.