Knight Institute and ACLU v. DOD – FOIA Suit Seeking Documents on Prepublication Review Processes for Former Government Employees

For decades, various U.S. agencies have required many current and former employees to submit works that discuss their government service for review prior to publication. In recent years, the government’s prepublication-review processes have grown increasingly far-reaching and burdensome, resulting in escalating public and congressional concern about their legality and fairness. The details of these processes are not governed by any uniform executive-branch policy. Instead, they are determined by a patchwork of agency regulations and non-disclosure agreements, with disparate standards and requirements.

There is very little publicly available information regarding these policies, or the bodies within agencies that administer them. What little information is public, however, suggests that the prepublication-review criteria are vague, overbroad, and unequally enforced. This raises serious questions about whether prepublication review, as currently constituted, violates authors’ First Amendment right to speak and the public’s First Amendment right to receive important information about the government.

To inform the public about the full implications of prepublication review, the Knight First Amendment Institute and the ACLU have filed a total of four FOIA requests. This lawsuit concerns the last three requests.