April 7, 2005

Deputy Chief of Staff, G-1
ATTN: FOIA/PA Officer
For Secretary of the Army
Office of the General Counsel
300 Army Pentagon
Washington, D.C. 20310-0300

Dear Deputy Chief of Staff:

This letter constitutes an appeal of an FOIA decision by Carol A. Geringer, Chief, Management Support Office. Her letter was in response to a request for information about military recruitment in schools. I enclose a copy of our original request as Appendix 1, and the denial letter as Appendix 2, for your information.

William Sweet, a reporter for our magazine, Peacework, repeatedly requested information about public activities of military recruiters from public affairs officers of the Army Recruiting Command. This information has routinely been available to media outlets for years. Without legal cause, and contrary to Army Regulations and the Freedom of Information Act, this time the request was denied.

It is worth quoting Section 1-300 Army Regulation 25-55 in some length here.

"1-300. Public Information The public has a right to information concerning the activities of its Government. DoD policy is to conduct its activities in an open manner and provide the public with a maximum amount of accurate and timely information concerning its activities, consistent always with the legitimate public and private interests of the American people. A DoD record requested by a member of the public who follows rules established by proper authority in the Department of Defense shall be withheld only when it is exempt from mandatory public disclosure under the FOIA. In the event a requested record is exempt under the FOIA, it may nonetheless be released when it is determined that no governmental interest will be jeopardized by the release of the record. (See para 3-101 for clarification.) In order that the public may have timely information concerning DoD activities, records requested through public information channels by news media representatives that would not be withheld if requested under the FOIA should be released upon request unless the requested records are in a Privacy Act system of records; such records in a system of records will not be released absent a written request under the FOIA, unless otherwise releasable under the Privacy Act. Prompt responses to requests for information from news media representatives should be encouraged to eliminate the need for these requesters to invoke the provisions of the FOIA and thereby assist in providing timely information to the public. Similarly, requests from other members of the public for information should continue to be honored through appropriate means even though the request does not qualify under FOIA requirements."

Section 1-407 reinforces these basic concepts:

"1-407. Public Interest: Public interest is official information that sheds light on an agency's performance of its statutory duties because the information falls within the statutory purpose of the FOIA in informing citizens about what their government is doing."

The regulation explicitly states that it is the policy of the Army to assist the news media in our attempt to gain "timely information concerning DoD activities." It further states that unless the requested records are in a Privacy Act system of records, this information should have been released to us even without a formal FOIA request. In other words, the Army violated its own regulations in even forcing us to go through a FOIA process in the first place, instead of releasing the information about the Army's military recruiting vehicles' public events in order to "shed light on the agency's performance" in a timely manner when it was requested.

In fact, in the fall of 2004, this same reporter for our publication asked for and obtained a more general list (more general meaning a list of when the vehicles were going to be based out of which battalions and brigades) of the military recruiting vehicles' itinerary. A copy of some of that information is attached as Appendix 3 to this appeal.

The same schedule that was released to us in the fall of 2004 is clearly releasable under FOIA and Army Regulation 25-55. There are no grounds to withhold the equivalent schedule for Spring 2005, and in fact the denial letter did not even assert any grounds for doing so. In fact, even if the rest of this appeal is improperly and illegally denied, Army Regulation 25-55 section 1-504b requires that, "Parts of a requested record may be exempt from disclosure under the FOIA. The proper DA official may delete exempt information and release the remainder to the requester." This regulations was violated by, at the least, failing to provide us with the more general schedule once more.

The fact that this information was not segregated out also violated section 5-203, which explicitly states, "Reasonably Segregable Portions Although portions of some records may be denied, the remaining reasonably segregable portions must be released to the requester when it reasonably can be assumed that a skillful and knowledgeable person could not reconstruct the excised information. When a record is denied in whole, the response advising the requester of that determination will specifically state that it is not possible to reasonably segregate portions of the records for release." The denial letter did not even try to make the claim that it was not possible to segregate out these records, perhaps because these records had been supplied to us a few months earlier, and so clearly the information is segregable. The current and future schedules along these lines need to be released to us forthwith.

The only distinguishing feature between the request that this time was denied and the request in the fall of 2004 was that the more recent request asked for a more detailed schedule of the vehicle's public events. Yet, the current co-editor of Peacework magazine, Sam Diener, then serving as editor of a different publication, routinely obtained these same detailed schedules, with the day-by-day public events schedules for these same vehicles, from Army Public Affairs in the mid-1990s, without filing a FOIA, and in fact by simply making a phone call to the Army Recruiting Command's Lynne Crawford. In fact, Lynne Crawford readily and repeatedly agreed that the public had the right to know this information, and even informed Army Recruiting Battalions and Brigades of their legal oblication to provide us with information about regional and local visits of military recruiting vehicles. The proof that these schedules were obtained is that some subsets of these schedules were posted by the current editor of Peacework in public IGC newsgroups, and then forwarded from there to Usenet newsgroups. Sam Diener published a subset of the detailed day-to-day schedule in 1997, for example, the archives of which are still accessible via the world wide web. For copies of excerpts of this Usenet posting, please see Appendix 4.

Equivalent detailed schedules with day-to-day schedules for other military recruiting public tours are routinely posted on the USAREC website. For example, the Army Golden Knights schedule is posted on the website at http://www.usarec.army.mil/hq/goldenknights/Webpage2005_content.html. Please see appendix 5 for more examples.

The fact that these and equivalent schedules have been and are being released means that, whatever the merits of the exemptions claimed, Army Regulation 25-55 section 3-200 requires that the detailed day-by-day schedule, as requested, be released, since, "A discretionary release (see also para 1-504) to one requester may preclude the withholding of the same record under a FOIA exemption if the record is subsequently requested by someone else."

Furthermore, the claimed exemptions are irrelevant and wholly without merit. The "high b2" exemption, according to AR 25-55 section 3-200, Number2 (a), only applies to: "Records qualifying under high b2 are those containing or constituting statutes, release, regulations, orders, manuals, directives, and instructions the release of which would allow circumvention of these records thereby substantially hindering the effective performance of a significant function of the DoD." The requested public activities schedules for the recruiting vehicles in no way constitute "statutes, release, regulations, orders, manuals, directives, and instructions," so high b2 does not apply to this request. Even if such materials as specified in high b2 were involved, no evidence that the previous and current release of such schedules, "substantially hinder[ing] the effective performance of the DoD" was presented.

Even if these records were of the type covered by high b2, it must also be pointed out here that the mere fact that it's possible that, due to the controversial nature of the military recruiting trucks, public discussion and constitutionally protected free speech activities might occur as a result of the public being made aware of such information, in no way provides an exemption to the Army to prevent the information's release. For example, the fact that the ACLU has protested the behavior disclosed to it in the now famous recent FOIA lawsuits regarding the military's use of torture could in no way legally be used to prevent the disclosure of such records under the FOIA. In fact, that's the very purpose of the act - to promote public dialogue and debate about the government's, and thus the people's, business. AR 25-55 reinforces the statute as well, saying, for example, in Section 3-200, "the identity of the requester and the purpose for which the record is sought are irrelevant." Even if the Army believes that the military recruiting vehicles are doing something shameful that can not withstand the spotlight of public scrutiny and debate, this is not a legal reason for the denial of a request for public records.

The claim that the public activities of military recruiting trucks are covered under the Operational Security section is similarly specious, groundless, and without foundation in the letter or spirit of both the FOIA statute and Army regulations.

The regulation governing Operational Security in the Army is AR 530-1. Section 1-4, which specifies that, "OPSEC is concerned with the achievement of secrecy and surprise in U.S. military operations and activities through protection of capabilities and intentions from hostile intelligence exploitation. Its ultimate objective is to prevent an enemy from obtaining sufficient advance information to predict, and thus be able to degrade, friendly operations or capabilities." Surely, the Army is not claiming that it is attempting to achieve secrecy and surprise about when the recruiting vehicles will visit public high schools in the US?

AR 25-55, section 5-100, which discusses Operational Security, refers to classified documents. The Army has made no claim that this material is classified, nor could it be classified, because of the public nature of the military recruiting vehicles' activities. Section 5-100 does make provision, in subsection 3, for situations in which, "(3) A combination of unclassified documents, or parts of them, could combine to supply information that might violate national security if released. When this appears possible, OPSEC/FOIA advisors should consider classifying the combined information per AR 380-5, paragraph 2-211."

The Army has not even claimed to classify the records we have requested, and thus, for this reason alone, the Operational Security exemption claim in this case violates Army Regulations.

Does the Army really wish to claim that knowledge of the fact that military recruiting vehicles will be recruiting in certain areas at certain times violates national security? Is the Army claiming that they believe the military recruiting trucks are at significant risk as targets for attack? If so, why is the Army cavalierly risking the health and safety of public school students across the country hundreds of times each year?

Furthermore, the Army recruiting battalions themselves send out press releases in the regions in which the trucks travel spelling out the vehicle's detailed schedules, and the detailed schedules of some military recruiting units are readily posted on the public world wide web by USAREC itself. As mentioned before, Sam Diener repeatedly obtained these detailed schedules in the past, with no adverse impact on national security. As described above, Army Regulation 25-55 section 3-200 requires that the detailed schedule be released on this basis alone, since, "A discretionary release (see also para 1-504) to one requester may preclude the withholding of the same record under a FOIA exemption if the record is subsequently requested by someone else."

The claim that "routes and timelines may be determined" from the schedules, and that this presents a threat, is similarly baseless. The Army Recruiting battalions, as mentioned, provide this information to reporters themselves. And, if one looks at the records we previously obtained from USAREC in Appendix 3, for example, the fact that an Adventure Van was at a high school in Bridgeport, CT on one day and a high school in Colchester, CT the next in no way specifies which route the trucks will travel or at what time after school, overnight, or the next morning the truck might make the trip.

The "Operations Security (OPSEC) Desk Top Guide" states that information can be exempted from FOIA under this provision only for, "preventing information about military operations and activities [which] must be protected from disclosure to hostile intelligence services and their agents." Thousands of teachers and students are aware that these trucks are coming. Furthermore, every Yellow Pages directory in the country lists the permanent locations of military recruiting stations. It makes no more sense to withhold the military recruiting trucks schedule than to withhold the locations of the permanent military recruiting stations.

If the Army is attempting to claim that possible free speech activity is a reason to withhold public information and might constitute a national security threat, such a claim is repugnant to the statute and in violation of Army Regulations. The Army Cinema Vans themselves, in fact, present a multimedia slideshow described as, "Profiles of Freedom: High school students discuss several recent Supreme Court decisions, including freedom of speech, freedom of assembly, and the Miranda ruling. Actual litigants to the Supreme Court speak on their beliefs and experiences." It's more than ironic that the Army has made a mistaken and illegal exemption claim for these records on the illegal basis of preventing the freedom the cinema vans claim to promote.

We are sure you are aware that Section 1-500, mandates, "Compliance with the FOIA: DoD personnel are expected to comply with the provisions of the FOIA and this Regulation in both letter and spirit. This strict adherence is necessary to provide uniformity in the implementation of the DoD FOIA Program and to create conditions that will promote public trust."

We believe, as a magazine publisher and a non-profit, educational organization, that, according to the spirit and letter of the law, we have a right to information which has heretofore always been in the public domain.

We also believe that the public's right to know supersedes any argument presented by Chief Geringer, and respectfully request that, in order to honor both the "letter and spirit" of the FOIA and AR 25-55, you overrule the initial denial.

We understand that, according to AR Section 5-302.b, "Final determinations on appeals normally shall be made within 20 working days after receipt." We hope this determination will be made faster than that, as the semester rapidly approaches its end.

Sincerely,

Sam Diener
Co-Editor, Peacework Magazine

Keith B. Harvey
Executive Director, New England Region AFSC

Enclosures:

Appendix 1: Initial FOIA request
Appendix 2: Letter from Chief Carol Geringer
Appendix 3: Military Recruiting Truck Schedule, Fall, 2004
Appendix 4: Detailed, Day-to-Day military recruiting vehicle schedule, 1997.
Appendix 5: Assorted downloads from the Army's military recruiting websites illustrating how routinely the schedules for USAREC recruiting assets are published freely by the Army itself.

cc: William Sweet
Joseph Gerson, Program Coordinator
ACLU of Eastern Massachusetts

Appendix 4: Detailed Day-by-Day Recruiting Vehicle Schedule, 1997

Sam Diener obtained the schedule below with the assistance of the Army Recruiting Command's Lynne Crawford.Sam Diener published this list to, among other places, an online forum which was then forwarded to the Usenet newsgroup misc.activism.progressive on Mar 15 1997. Reprinted below is an excerpt of that posting. For proof, see http://groups-beta.google.com/group/misc.activism.progressive/browse_thread/thread/2fa4c71d5cc4e220/556d78c54470877e?q=misc.activism.progressive+military+recruiting+truck+school&rnum=2#556d78c54470877e

This list is sorted by state, city, and date.

Return to Peacework