> One main exemption to FOIA is that internal pre-decisional work product of > lawyers is exempt from disclosure. Any contribution on this list could be > considered privileged communication by those lawyers. I doubt there would be > enough caveats and disclaimers to keep any communication on-list from being > considered possible official agency action subject to the Administrative > Procedures Act. A lone non-lawyer might be able to skirt the APA barely but > once the lawyers come in then the machinery of government would kick in and > things would need publishing in the Federal Register.
Never hurts to file a FOIA. Some agencies heavily frown on denying requests even when they are not obligated to disclose because it’s terrible PR. Case point, numerous filings with NSA. > For as long as this issue has been running, moving things over to actually > having the Army running an inquiry opened up in the Federal Register where > the public can comment and attorneys for the Army can respond probably will > be worthwhile. For as much as this list can be reactive, it is time for DoD > and Army to put their cards on the table for feedback. This is essentially what happened with the White House’s Federal Open Source Code Policy [1]. The problem is no case law on several key points and there probably won’t be much progress until at least one agency is burned or vindicated in court. Until then, agencies are getting immense internal pressures to participate in open source without much of any official guidance because it’s entirely counter-culture. If anything, it’s great to see efforts like ARL and White House pushing through formal guidance on CC0, and even the recent awkward code.mil effort saying “wrap it in a contract” because the devs sitting at desks need something, anything, yesterday. Cheers! Sean [1] https://sourcecode.cio.gov <https://sourcecode.cio.gov/>
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