Senators Pushing Legislation Aimed At Reducing The Abuse Of The Most-Used FOIA Exemption

Legal Issues

from the a-bit-more-patch-than-fix,-but-still... dept

If anything useful has been redacted from documents obtained with by a FOIA request, chances are the b(5) exemption has been invoked. Theoretically narrow in scope, the exemption has expanded to cover everything from a historical recounting of the CIA’s involvement in the Bay of Pigs to someone’s hand-scrawled commentary (“What a bunch of crap!“) on a bill asking for Pakistan to be designated as a state sponsor of terrorism.

Here’s the entirety of the exemption according to FOIA statutes.

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

The reality of the situation is that nearly every agency has deployed the exemption to redact information at one point or another. Almost prophetically, the b(5) exemption claims the withheld information can only be released to “agencies in litigation” with the withholding party. And there are certainly plenty of “agencies” engaged in litigation with these government entities, albeit mainly in the form of FOIA lawsuits.

Two senators are hoping to fix this and, at the same time, force the government to start following up on its promised FOIA reform.

Senate Judiciary Committee Chairman Leahy and Cornyn, the ranking Judiciary Republican, introduced the FOIA Improvement Act of 2014, which would strengthen Obama administration transparency mandates and reform one of the most abused FOIA exemptions.

President Barack Obama and U.S. Attorney General Eric Holder directed federal agencies in 2009 to update their FOIA guidelines and operate with a presumption of openness. However, many agencies ignored the directive.

The bill would codify the administration’s reform directives and force responsive agencies to limit use of the b(5) exemption to only information that would cause “foreseeable harm” if disclosed. Granted, that still leaves government agencies with plenty of room to maneuver, but it should trim down the number of b(5) redactions applied to documents like a Presidential Policy Directive ordering the State Department to be more transparent.

On the indisputable plus side, documents over 25 years old are no longer subject to this exemption, meaning long-withheld documents like the previously mentioned Bay of Pigs recounting will no longer be withheld for bogus “deliberative” reasons.

If this bill passes the Senate, it will likely be merged with a House FOIA reform bill being shepherded by Darrell Issa and Elijah Cummings. From that point, it will need to emerge mostly unscathed from the sausage-making on its way to the President. If it does survive intact, longtime FOIA offenders may have to find new reasons to apply black bars and withhold pages. Hopefully, this will cut down on the number of FOIA responses containing nothing but page-after-full-page of redactions.

Filed Under: b5, exemption, foia, secrecy, senate, transparency