Pentagon seeks new FOIA exemption to withhold defense records

The Pentagon sent Congress a legislative proposal on July 10 that would let the defense secretary withhold certain controlled unclassified information from FOIA requests when officials judge the material exposes national defense vulnerabilities and the disclosure harm outweighs the public interest. The move would give the Defense Department a new statutory escape hatch for records that are still unclassified, but that officials want to keep out of public view.

Controlled Unclassified Information was created under Executive Order 13556 in the Obama administration to replace the older patchwork of agency markings such as For Official Use Only. NARA, through the Information Security Oversight Office, runs the governmentwide CUI program, which standardizes how agencies handle unclassified information that needs safeguarding. The National Archives registry now covers more than 125 categories. Federal rules also make clear that marking a record as CUI does not by itself give an agency authority to withhold it under FOIA; agencies still have to rely on a statutory exemption or another disclosure law.

Under the draft, CUI could become a central predicate for blocking disclosure altogether, a shift that would affect records ranging from technical weapon systems information to procurement oversight files and national security vulnerability assessments. The Pentagon recently blocked public release of the Government Accountability Office’s annual report by marking it CUI, cutting off public visibility into cost, schedule and readiness problems in the military’s most expensive weapons system.

The Defense Department inspector general found in a January management advisory that DoD organizations often failed to mark CUI correctly and sometimes defaulted to more restrictive dissemination labels than necessary. In reviews of more than 48,000 documents from 2023 and 26,000 from 2024, 9 percent of the 2023 files and 11 percent of the 2024 files lacked the required CUI designation block, while 4 percent and 7 percent, respectively, were missing information from that block.

The proposal arrived as Pete Hegseth tightened access in other ways, including new press restrictions and limits on reporters moving inside the Pentagon. In June, the department barred journalists from the Pentagon press office, describing the space as classified and off-limits, and earlier restrictions had already led dozens of news organizations to give up press credentials.