Federal Agencies Are Still Abusing Their Favorite, Super-Vague FOIA Exemption Thousands Of Times A Year

from the (b)ecause-we-can-can-can dept

The Freedom of Information Act was supposed to result in, you know, the freedom of information. Obviously, not everything the government produces paperwork-wise can end up in the public's hands, but far more should be turned over to the public than has been.

Using a proprietary blend of stonewalling and excessive fee demands, countless government agencies have managed to keep public documents away from the public. It takes a lawyer to win FOIA lawsuits, which may be why corporations are getting their hands on far more documents than American citizens.

Exemption b(5) is, by far, the federal government's favorite. It's vague enough it can cover just about anything.

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

Sprinkle a little intra-agency imagination over a pile of paperwork and responsive documents suddenly become unresponsive and are removed from life support as soon as feasibly possible. FOIA lawsuits are the metaphorical families in the waiting room, begging Dr. Info to reconsider pulling the plug.

Exemption b(5) has been used to withhold everything from State Department's "what a load of crap" Post-It note (attached to a Congressional proposal to designate Pakistan as a sponsor of international terrorism) to the CIA's files on the 1961 Bay of Pigs invasion.

The abuse of this exemption may have peaked in 2013, when federal agencies used it more than 81,000 times. But things haven't necessarily improved in the last seven years. In 2018, (b)5 was still cited more than 60,000 times. The (otherwise considerable) drop in deployment may be due to 2016 legislation, as the Project on Government Oversight explains:

One possible factor in the reduced use of Exemption 5 since its peak in 2013 may be reforms instituted by the FOIA Improvement Act of 2016. One reform barred the use of the exemption for records more than 25 years old…

That would remove the CIA's strategic blockade of its Bay of Pigs docs. But there's plenty of info far less dated that still receives the (b)5 "get out of transparency free" card. Multiple investigations of ICE detention centers highlighted the inconsistent application of the feds' go-to exemption. Documents handed to NPR [on the left in the image below] by ICE contained plenty of information. The docs handed to POGO, however, contained only redactions and the b(5) excuse.

Somehow the same information was both able to be released and able to be withheld under exemption b(5). As POGO points out, the b(5) boilerplate makes zero sense when applied to the text released to NPR. This exemption isn't supposed to deny the public access to common sense conclusions.

It’s difficult to understand how these statements—that inadequate mental health care leadership leads to poor care, and that solitary confinement is the “most important issue” at this particular detention center—can be properly withheld under Exemption 5. There is no attorney-client advice, and no deliberation on a pending policy decision.

If this is repairable, it will take an act of Congress, just like it did the last time. This exemption is like qualified immunity for cops: why not toss it up against the wall and see if it sticks? Since it usually takes litigation to reverse agency non-judgment calls, the house -- which spends other people's money to stick it to the people -- almost always wins.

Filed Under: b(5), foia, government, inter-agency communications, secrecy, transparency


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  • identicon
    Anonymous Coward, 13 Feb 2020 @ 5:02pm

    What if we all, every last American, suddenly stopped paying taxes? The governors can only govern by the will of the people, after all.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Feb 2020 @ 6:27pm

    It takes a lawyer to win FOIA lawsuits

    This says it all. The fact that lawsuits seem to be the necessary method instead of requests.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Feb 2020 @ 2:31pm

      Re:

      but trust the chinese government! and trust those huawei (communism with chinese fascist governmental features' attache) phones!

      reply to this | link to this | view in chronology ]

      • identicon
        Huawei-wawawawaaaaa, 15 Feb 2020 @ 11:09am

        Re: Re:

        Cuz the citizens rights respectin' US did such a great job since 2001, right AC?

        Cuz tech companies and the NSA are so trustworthy, AC?

        I'll take China and my Huawei, anyday over Android Google NSA

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 13 Feb 2020 @ 7:49pm

    How about some REAL tech dirt? Google doc trove:
    https://www.projectveritas.com/2019/08/14/google-machine-learning-fairness-whistleblower-goes -public-says-burden-lifted-off-of-my-soul/
    You can download everything, at the bottom of the page. Select "Everything.zip".

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 14 Feb 2020 @ 3:45am

      Re:

      I'll be kind here and drop a few hints for you:

      Hint 1: There's a link to submit stories if you want to be treated as anything other than the obnoxious spammer you are. Derailing irrelevant threads is a surefire way to be ignored.

      Hint 2: If your source is Project Veritas, you're being lied to by a man whose only role in life is to fleece the gullible.

      Hint 3: If you want someone to actually read real evidence, you have to do more than go "here's a lot of random shit, read it all". You may have nothing else of value in your life to take up your time, but most other people have a life outside of political fantasies. If there's anything of value, state the page and document that's relevant. If you can't do that, you have nothing.

      Hint 4: Last time you guys pulled this same stunt, it turned out to not mean anything, except a right-wing circle jerk over what they imagined the documents might mean. Nothing of any substance was contained in the last dump. You have to present something resembling reality if anyone else is going to bother again.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Feb 2020 @ 2:28pm

        Re: Re:

        the left lives perpetually in a fog of ignorance of all things, thus ceasless rage and shock at incomprehensible rality, for it ever ahows the magical handiworkbof russia and other siniater and invisible forces. Republicans, on the other hand, know best, and of reality. Here is commie bernie aoc style china lying about the wuhan virus, obviously. there, an innocent man stiched up by licensious garbage utterly unverified. and there, someone of "deep conviction" incapable of eapousing a canon princple.

        but ignorant forever, baffled forever, forever useless, forever knowing nothing, foiled in plans immemorable, destitute of deed or will, by sight of things hungered, animal. Nothing essential we can call human remaining, the demoralized, the blind, the craven democrat, blind but savagr beast.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 15 Feb 2020 @ 7:44am

          Re: Re: Re:

          What's funny is that in your misspelled you failed to realise that the idiot you're trying to support is referencing a 6 month old story that's been widely found to mean absolutely nothing. By known con artists with a history of gritting gullible conservatives, no less.

          reply to this | link to this | view in chronology ]

          • identicon
            Word Police, 15 Feb 2020 @ 11:30am

            Re: Re: Re: Re:perhaps funnier is...

            This is that in your misspelled you failed

            WTF is that supposed to say, PaulT?

            Writing a TrollFail ticket right now.

            reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 17 Feb 2020 @ 12:18am

              Re: Re: Re: Re: Re:perhaps funnier is...

              "WTF is that supposed to say, PaulT?"

              It says that while writing a sarcastic comment about an idiotic rant, I accidentally missed out a word, although what the word was meant to be is obvious from context.

              Funny how that's what you latch on to rather than try to defend the ignorant rant based on false information spread by known liars 6 months ago.

              I will try to be more careful proofreading my comments in the future to avoid further embarrassment. Will you and your ilk stop your behaviour in the same way?

              reply to this | link to this | view in chronology ]

          • identicon
            Word Police, 17 Feb 2020 @ 3:58am

            Re: Re: Re: Re:

            Someone is missing a subject here, and hasn't fixed it for two days:

            Quoting the vapid PaulT,
            "What's funny is that in your misspelled you failed to realise"

            ...in your misspelled you failed....hahahahaha

            Writing you a ticket for parking that failed word policing here for two days.

            reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 17 Feb 2020 @ 4:08am

              Re: Re: Re: Re: Re:

              How sad. You can't admit that the issue being commented upon is 6 months old and already addressed here. You can't even admit that the thing you're mocking me for has already been addressed. But, you just have to spew something here.

              reply to this | link to this | view in chronology ]

      • identicon
        q, 15 Feb 2020 @ 9:35am

        Re: Re:

        reply to this | link to this | view in chronology ]

      • identicon
        Wounded AI Neural Node, 15 Feb 2020 @ 9:37am

        Re: Re:

        Last time you guys pulled this same stunt

        Who are those guys PaulT? I think you are talking to yourself again.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 17 Feb 2020 @ 12:25am

          Re: Re: Re:

          "Who are those guys PaulT?"

          The people who spread the false information about a Google document dump that didn't hold up to any kind of scrutiny, hoping that they can score political points from the gullible who are too lazy to examine the documents first hand.

          I was thinking the above was a repeat of that failed tactic but, alas, it's just some moron who's latched onto 6 month of widely debunked information as if it's news.

          reply to this | link to this | view in chronology ]

          • identicon
            ROGueS, 17 Feb 2020 @ 6:21am

            Re: Re: Re: Re: well, I agree

            Ok, agreed. I would appreciate a link to the debunking if you have it though.

            Meantime, I am finding this link quite interesting, for whoever put it out there:

            https://suzi3d.com/

            reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 17 Feb 2020 @ 6:46am

              Re: Re: Re: Re: Re: well, I agree

              " I would appreciate a link to the debunking if you have it though."

              It's been supplied several times in other threads, and is easily locatable to anyone interested in actually finding it.. Your lack of intellectual honesty is pathetic, but I will repeat the link so that you don't whine about being asked to read the parts of the threads you participate in that give you what you asked for.

              https://www.techdirt.com/articles/20190815/18023542791/latest-google-whistleblower-to-prove-ant i-conservative-bias-doesnt-prove-anything-appears-to-be-bigoted-conspiracy-theorist.shtml

              My main question is still why someone is suddenly so obsessed with news from 6 months ago.

              "Meantime, I am finding this link quite interesting"

              ...and has already been addressed where it was first posted. Why do you think that repeating the work that others have already done for you makes you sad show of inanity here worth anything?

              One trick you guys need to learn is that posting a link and saying "read it" does not prove anything. You have to provide context. Without it, someone can quite honestly read the same document and not come to the same con conclusion. If you attempted honest debate rather than pretending there's a conspiracy when a majority disagree with you, you'd have learned that by now.

              reply to this | link to this | view in chronology ]

              • identicon
                Automated Reply, 17 Feb 2020 @ 8:11am

                Re: Re: Re: Re: Re: Re: well, I agree

                Thank you for that link.

                Yes, I remember now, and I did not make a single comment there, though this is funny in re Google algorithms and I/O data being confused with anything resembling a democratically derived outcome or opinion :

                It says that most people do not want to hear your point of view

                And honestly, PaulT, you are either enduring cog-dis, or being disingenuous because TDs in-house trolls are in my opinion every bit as scurrilous as the alt-right that you wish to lump me in with. Did you not get the memo that I am further to the left than anyone on this forum right now?

                ANd thats your personal binary deficit, not mine.

                And this is truly in the area of classic paranoia, Paul:

                you guys

                That would be me and who exactly? I am an independent.

                Also, I have attempted honest debate here, and it never works because TD has that double standard of allowing people like you to say the most incorrect things about me (fat, racist, sexless, re[publican, etc) without flagging you.

                As you might recall, I only came here a few years ago to raise awareness about topics that are now covered in other major media, and even here at TD.

                Topics like actual gangs of police with matching tattooes, and how community policing is being used to crush dissent in my country; and how Israeli security firms are de facto targeting US citizens, long before Weinstein and Black Cube became mainstream knowledge.

                Then, because I also criticized how the Anti Defamation League (which adores Weinstein, BTW) et al is actually sending those gangs of police on paid junkets to Israel to train in counter-terrorism tactics, which are eventually directed at the citizens of my country, and fellow activists, well, its been a shit show ever since then.

                But I never once ever posted a link to anything and said "there, read it!" unless one of YOUR types demanded proof, or some other demand, or worse, began mumbling about conspiracy theories.

                And that, because I tipped the Sacred Pig(s) that are militarizing US police.

                reply to this | link to this | view in chronology ]

                • icon
                  PaulT (profile), 17 Feb 2020 @ 8:18am

                  Re: Re: Re: Re: Re: Re: Re: well, I agree

                  "Yes, I remember now"

                  OK, so now do you understand why we're questioning the guy who decided to spam here demanding that the story be covered a full 6 months afterwards?

                  "As you might recall, I only came here a few years ago to raise awareness about topics that are now covered in other major media, and even here at TD"

                  Really? I remember it being as a proxy for treatment when you forgot to take your meds.

                  "But I never once ever posted a link to anything and said "there, read it!""

                  Yet, in the comment I was responding to you did exactly that. Hmmm...

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Psychiatric Meta-Narrative, 18 Feb 2020 @ 6:43am

                    Re: Re: Re: Re: Re: Re: Re: Re: well, I agree

                    I would gladly take on the psychiatric met-narrative anywhere, anytime, with anyone.

                    But I never disputed that the flagged OP was or wasn't full of shit. I am not partisan like that.

                    The evidence in that case was thin at best, over-hyped at worst.

                    And in case you missed it, I wasn't even addressing you and the we in your head about that link above to the persecuted Kiwi journalist, I was thanking the OP for it.

                    I actually DO read the links when they are relevant here, and even civility is, apparently a bad thing here too.

                    Y'all left quite a record yourselves.

                    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    tyron woodley, 13 Feb 2020 @ 11:26pm

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    reply to this | link to this | view in chronology ]


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