FOIA Exemption B(5) Means Never Having To Let A Redaction Opportunity Slip By

from the government-as-parent:-because-I-said-so dept

We’ve seen our share of redacted pages here at Techdirt, covering everything from NSA rules violations to GPS tracking to transcripts of court proceedings. Redaction is a way of life for the government, making a mockery of both the Freedom of Information Act AND this administration’s claim that the White House is the most transparent place on earth.

This last claim in particular is ridiculous. The Unredacted blog (run by members of George Washington University’s research library) has published the following chart, which shows exactly how much sunlight isn’t making its way to requested government documents thanks to its favorite FOIA exemption, b(5).

This exemption theoretically covers only the following:

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency

In reality, it covers all of the following, according to Unredacted’s research.

The Department of Justice’s use of b(5) to censor dozens of pages of a candid history of Nazi-hunting (and Nazi-protecting) by the U.S. government to such a self-defeating extent that former officials leaked the entire document to the New York Times, instead of fulfilling a Freedom of Information request.

The CIA, supported by the Department of Justice, is currently using the b(5) exemption to keep secret its history of the 1961 Bay of Pigs Invasion, arguing that it’s release “could confuse the public.”

Muckrock’s Shawn Muscrave has reported that The Federal Elections Commission attempted to argue that it’s own guidance on when to apply b(5) is itself exempt from release under b(5) –even though it had already been posted on the FEC’s website.

Also included? Henry Kissinger’s notes on telephone conversations, which were withheld for seven years under this exemption. DOJ legal counsel opinions, which by law must be released if the stated suggestions have been officially adopted. The State Dept. even argued that this exemption applied to Presidential Policy Directive addressing the Department’s need to be more transparent about its aid plans.

This is the next FOIA battleground, according to Unredacted. The expansive reading of this exemption has lead to the government adopting this as the go-to redaction, applied haphazardly to withhold information from the public. The b is for “broad,” or as Redacted puts it, “withhold it because you want to.”

The blog points to one of the most ridiculous redactions in a sea of misuse — the withholding of a State Department employee’s hand-scrawled “commentary” on a proposed bill to designate Pakistan as a state sponsor of terrorism.

Sure enough, b(5) was cited when redacting the opinion (“What a bunch of crap!”), meaning that this penned commentary somehow was an inter/intra-agency “memorandum or letter” not meant for the public’s eye. The fact that it was neither and was written on a copy of a publicly available piece of legislation didn’t stop the agency from redacting it. Two years later, it was finally forced by the court to uncover the rogue commentary.

“Because you feel like it” sums it up completely. Someone hoped to head off a microscopic bit of embarrassment by abusing the FOIA exemptions and somehow we’re expected to believe other b(5) redactions are done with a sense of purpose and restraint.

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Comments on “FOIA Exemption B(5) Means Never Having To Let A Redaction Opportunity Slip By”

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Anon E. Mous (profile) says:

I recall Obama saying the government would be more transparent and open. In all this time it’s seems to be the total opposite.

The only thing that seems to ring steady is the amount of information the government is holding from FOIA requests and the prosecution of whistle blowers.

Ever since the Snowden leaks, the government has decided no information is good information

zip says:

Bush's Black Hole, and Obama's [-censored-]

I’m wondering if the Bush years will be a big black hole in history, considering how much non-government lawyers and non-government email accounts were used by the President, Vice Pres, and other White House officials as an end-run around the normal channels and processes of FOIA disclosure and historical archiving. (I’ve not kept up, but did they ever find that “missing” trove of official White House emails?)

And as for Obama, he freely uses NGOs like the fully-taxpayer-funded-but-FOIA-exempt “National Endowment for Democracy” as spearheads of foreign policy for financing and inciting “regime change” throughout the world — a role historically held by the CIA.

I would predict that, given time, the FIOA will become essentially useless as a tool for making governments more transparent, because every controversial program will simply be “outsourced” to a FOIA-sheltered private business or NGO.

Nate says:

thanks for writing up!!

Thanks for the important piece!

Couple quick comments:

1. The blog cited is Unredacted, not Redacted.
2. Its by the National Security Archive, which is actually independent from (but affiliated with) George Washington.
3. Finally, getting nitpicky, the last “bunch of crap” document was released due to an administrative appeal, not judicial review.

None-the-less good stuff! thx!!

Khaim (profile) says:

Redacted Blog is crap and you're bad for reposting it

Not because of anything they wrote. I wouldn’t know; I haven’t bothered to read any of it. They might be tireless freedom fighters for all that is right and good, for all I know.

But nothing – nothing – excuses them from publishing a graph whose y-axis doesn’t start at 0.

Humans are visual creatures. Anyone looking at that graph gets the idea that exemptions have more than doubled from 2011 to 2012. Of course the actual numbers show only a 40% increase – still bad, but not quite as frothing-at-the-mouth-rage-inducing as implied.

I expect better from you, TechDirt.

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