DOJ Refuses FOIA Request On Emails, Claiming 'Personal Privacy'

from the that's...-not-how-this-works dept

We’ve talked in the past about how government FOIA officers seem to really love exemption b(5) which covers “inter-agency or intra-agency memorandum or letters which would not be available by law to a party other than an agency in litigation with the agency.” But, in my experience, I’ve seen a ton of the next exemption: the b(6) exemption, often called the “privacy exemption.” Officially, the law (5 USC 552(b)(6)), says only that “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

That seems like a perfectly reasonable exemption. Even if it is part of a government discussion, we don’t want the government revealing medical files or something of a similar nature. But, over the years, this has gotten abused in weird ways, such as the time a FOIA officer used b(6) to redact Beyonce’s name in a FOIA request about Beyonce. Really.

However, now I think we’ve seen the b(6) exemption to end all b(6) exemptions. This came to investigative reporter David Sirota, who filed a FOIA request to find out about emails between Makan Delrahim and employees of the DOJ’s antitrust division. This is potentially useful info, because Delrahim was just nominated to head that very division. But, more importantly, Delrahim has been a powerful lobbyist for Anthem who tried to help it get its merger with Cigna approved — an effort that just recently failed in court, but may have another chance with Delrahim in a position of power.

Thus, Sirota made a fairly standard FOIA request for communications between Delrahim and the DOJ’s antitrust division during the time that he was working as a lobbyist for Anthem. And, stunningly, the DOJ came back with a Glomar response (you know, the infamous “we can neither confirm nor deny….”), pointing to b(6) as the reason why (along with b(7)(C) which is for records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy” — kind of a repeat of b(6), really).

If you can’t read that, the key paragraph notes:

Please be advised that we can neither confirm nor deny the existence of records responsive to your request. If records did exist, acknowledging communications between Antitrust Division employees and private individuals without their consent would constitute a clearly unwarranted invasion of personal privacy, and could reasonably be expected to constitute an unwarranted invasion of their personal privacy. Such information is, accordingly, exempt from public discourse in accordance with 5 U.S.C. §§(b)(6) and (7)(C)

This is… wrong. That’s not even remotely close to how those exemptions work. Tons of FOIA requests to the government regularly turn up emails from private individuals. To say that merely confirming or denying the existence of such records would violate privacy under FOIA is laughable.

The FOIA glomar rejection letter is signed by Sue Ann Slates, who is the chief of the FOIA unit at the DOJ’s antitrust division, and has been for years. But it literally took me less than 5 minutes to find an example of Slates signing off on FOIA responses that include tons of personal emails from private individuals. Notice, that one (more properly) notes that some portions of the emails may be redacted under (b)(6), but certainly not any admission that such emails exist. Hell, within that very FOIA response, there’s this:

That’s an email header revealing a bunch of emails, both of government officials and private individuals. Such revelations in FOIA responses are quite common. Revealing the simple fact that Delrahim — as a lobbyist working on antirust issues — might have emailed the DOJ’s antitrust division (where he also used to work) is in no way the kind of “privacy violation” that is intended under FOIA’s exemptions against revealing “personnel and medical files.”

I don’t know if Sirota is intending to appeal or file a lawsuit over this, but it feels like, once again, we have FOIA officials abusing their power to avoid responding to legitimate FOIA requests and hiding behind incredibly expansive interpretations of FOIA exemptions.

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