Rep. Maloney applauds DoD compliance with crimes database law

WASHINGTON, DC – Today, Rep. Carolyn B. Maloney (D-NY) applauded Secretary of Defense Leon Panetta and the Department of Defense (DoD) for, at long last, bringing all military services, including the Department of the Navy, into compliance and reporting data on a monthly basis to the Defense Incident-Based Reporting System (DIBRS), a database on crimes such as assault and rape.

“DIBRS is a critical tool for DoD, law enforcement, policymakers—and our service personnel—to know the extent and nature of crimes committed in the military and make informed decisions regarding good policy and the best allocation of resources to combat it,” said Maloney. “After years and years of delay, the completion of this system will ensure we have the information we need so that crimes are properly adjudicated and service members are protected.”

“Particularly in light of recent estimates that put the number of sexual assaults in the military at 19,000 each year, the need for improved data is ever more urgent,” Maloney continued. “But the fact that so many of these cases go unreported indicates that Congress has not gone far enough to ensure that our service members who are victims of these crimes have the resources and protections they deserve to come forward – and I plan to work with my colleagues to put these policies in place.”

Maloney has long fought for the full implementation of DIBRS and authored an amendment to the National Defense Authorization Act for Fiscal Year 2010 which required DoD to regularly report to Congress concerning the progress of DIBRS implementation. Most recently, Maloney sent a letter to Secretary Panetta—as she had to Secretary Gates— requesting an update on the current status of the implementation of DIBRS; DoD responded that all military branches are now compliant. The text of the letter follows.

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Background:
Congress enacted the Uniform Federal Crime Reporting Act (P.L. 100-690) in 1988, which requires federal agencies and departments, including DoD, to report crime data to the Justice Department. The law also created the National Incident-Based Reporting System, or NIBRS, which requires law enforcement agencies, including those within the Department of Defense, to report crime statistics to the Department of Justice. The Department of Defense is currently testing data with NIBRS and expects certification in 3 to 6 months.

February 24, 2012

The Honorable Leon E. Panetta
Secretary
U.S. Department of Defense
100 Defense Pentagon
Washington, DC 20301

Dear Mr. Secretary,

I write with great concern regarding recent reports of a Department of the Navy request to redact information from an Agency for Toxic Substances and Disease Registry (ATSDR) report about water contamination at the U.S. Marine Corps base, Camp Lejeune—where for three decades, thousands of Marines and their families consumed tap water contaminated with toxic chemicals that likely led to cancers and other illnesses, but have yet to receive justice.

I authored a provision that was included in the House-passed version of H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012 that requires the application of a public interest balancing test by the Department of Defense (DoD) when exempting clearly-defined, sensitive, but unclassified “Critical Infrastructure Security Information,” or CISI, from responses to Freedom of Information Act (FOIA) requests. As you know, the final, compromise language that was passed as part of the FY12 NDAA conference report, which was signed into law on December 31, 2011, would permit the withholding of CISI under the Freedom of Information Act (FOIA) only when the public interest is outweighed by the interests in security. This determination is to be made in writing by the Secretary of Defense, or designee, and then made public.  

Given the documented history of secrecy surrounding the Camp Lejeune investigation, the Department of the Navy’s actions raise serious concerns regarding the legal justifications for its most recent request for redactions from the Camp Lejeune report, particularly in light of the new CISI statutory exemption to FOIA. As you well know, ultimately all federal government information is public and available through a FOIA request unless classified or exempted through FOIA or the Privacy Act.

Certainly some CISI should not be made public due to security concerns interests that outweigh other public interests. However, all DoD components need guidance clarifying that CISI will only be truly secure if it can be properly be withheld under FOIA. Therefore, treatment of CISI should be governed by the DoD CISI exemption—not the host of other unrelated laws, regulations, and instructions cited by the Navy in its letter to ATSDR.

I request that you provide the following information regarding the proper implementation of the new law:

•    What measures is DoD undertaking to properly implement the use of the CISI exemption to FOIA?
•     When does DoD plan to initiate the rulemaking process, and to clarify the appropriate usage of the exemption and how it may relate to existing instructions, regulations, or statutes relating to critical infrastructure information security?
•    How will you ensure the public interest balancing test is appropriately and consistently applied and that requesters are given an opportunity to present the public interest in question once DoD has determined the requested information is CISI?
•    How will DoD conduct oversight over the use of the CISI exemption?
•    How will DoD ensure public access to determinations to withhold information using the CISI exemption?
•    Finally, given the great public interest in information related to the Camp Lejeune water contamination, what measures are you taking to ensure that information is made publicly available?

We must protect certain CISI to keep our defense operations, properties and facilities safe from terrorists and others who would do harm to American interests. But in our efforts to do so, we also must strike the necessary balance between safeguarding security interests and the public’s right to know – and prevent another Camp Lejeune from happening.

Thank you for your prompt attention to this matter, and I look forward to your reply.

                        Sincerely,

CAROLYN B. MALONEY
                        Member of Congress