The “Most Abused” Freedom of Information Act Exemption Still Needs to Be Reined In
Posted by on March 03, 2020 at 3:17 PM
By Nick Schwellenbach, Senior Investigator, and Sean Moulton, Senior Policy Analyst. Reposted from POGO.org
Government documents recently made public show that the federal government continues to abuse a provision of the Freedom of Information Act (FOIA) to unjustifiably keep the public in the dark about important government matters that they have a right to know about. Congress created FOIA to give the public access to the inner workings of the federal government. But the government can misuse the law to avoid transparency and hide documents that shed light on internal problems.
Yet, in practice, it often doesn’t work that way. Implementation of FOIA has many problems that make the process longer and more difficult for all involved. High on the list is agencies’ overly expansive application of the exemptions to withhold records that don’t truly deserve the protections.
While it is not the most used exemption, experienced FOIA requesters routinely cite FOIA’s Exemption 5—meant to protect certain internal government deliberations—as the most problematic of them. Tom Fitton, president of the conservative Judicial Watch, testified to Congress in 2010 that it was the “most abused exemption.” Nate Jones, formerly with the nonprofit National Security Archive and now with the Washington Post, calls it the “withhold it because you want to exemption.”
Exemption 5 is commonly interpreted as shielding from release draft government documents, records of sensitive deliberations before decisions are made, and government attorney-client deliberations. These types of documents deserve some protection. But agencies stretch the exemption to inappropriately cover other information, such as records that may paint the agency in a bad light, records that reveal problems, and records that contain embarrassing information.
There has been some progress. Federal agencies have used Exemption 5 less in the last several years than they had around the midpoint of the Obama administration.
Use of the exemption peaked in fiscal year 2013 when it was cited a total of 81,752 times, according to data available on FOIA.gov. Since then, use of Exemption 5 has generally fluctuated between 60,000 and 70,000 each year. In fiscal year 2018—the most recent data that’s public—it was used 61,135 times.
While many agencies use the exemption, the Department of Homeland Security uses it far more frequently than any other agency. In the last 10 years the department was responsible for more than half of the government’s use of Exemption 5, ranging from a low of 54% in 2018, when the agency cited it 32,962 times, to a high of 83% in 2009, with 59,510 instances. The Equal Employment Opportunity Commission is consistently the second most frequent user of the exemption, and cited it 13,041 times in 2018. Use of the exemption by other agencies ranges from not at all to a few thousand times per year.
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 (it’s worth noting, though, that presidential records involving deliberative process privilege can only be withheld for 12 years). The law contained other changes as well, including a particularly significant one that will be discussed later in this piece. However, the beginning of the reduction in use of the exemption began a few years earlier than the law’s passage.
Despite the reduction in the overall use of Exemption 5, recent FOIA cases show that federal agencies are still misusing it.
Findings of Poor Immigration Detention Conditions
Last year, POGO did an investigation into the dangerous conditions and alarming use of solitary confinement at the Immigration and Customs Enforcement (ICE) detention center in Adelanto, California. We also published a large number of records obtained through a FOIA lawsuit as a part of the investigation.
In January, National Public Radio (NPR) published a story on the planned expansion of the Adelanto detention center despite its history of problems with medical and mental health care. NPR also released the Department of Homeland Security records it obtained through FOIA on the detention center.
POGO’s and NPR’s FOIA requests resulted in many of the same records, but there are significant differences in what the government released and what the government withheld. In the records provided to POGO, the department invoked Exemption 5 to redact vast swaths of text. However, the agency did not claim the exemption for any of the same records provided to NPR.
By examining NPR’s documents, it’s clear that many, if not all, of the department’s Exemption 5 redactions in POGO’s records were not supported by the law.
Take the following passage—the version NPR received is on the left, and the version POGO received is on the right:
The first sentences in the unredacted passage are: “Though Adelanto’s mental health team appears to be working to the best of their ability within their roles and within facility constraints, the lack of psychiatric leadership, particularly absent a leader who has the qualifications, experience and authority to make significant changes to how patient care is delivered, continues to result in ongoing inadequate mental health care.”
“The most important issue at ACF [Adelanto Correctional Facility] continues to be the inappropriate segregation of detainees with serious mental disorders,” the passage continues. (“Segregation” is the government’s term for solitary confinement.)
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.
It’s particularly unjustifiable because this same kind of information—scathing criticism of the facility’s medical and psychiatric leadership and of its overuse of solitary—is left unredacted elsewhere in POGO’s version of the records. Indeed, the redactions throughout POGO’s version of the records appear largely arbitrary.
Presidential Involvement in the Ukraine Affair
Another recent case of excessive use of Exemption 5 came to light due to a leak of Pentagon emails to Just Security, a national security website, just weeks after redacted versions of the same emails were provided via FOIA to the nonprofit investigative journalism organization Center for Public Integrity in December. These emails involve the White House-directed freeze in military aid to Ukraine and questions among Pentagon officials as to whether the delay violated a spending law called the Impoundment Control Act. The Government Accountability Office recently determined that the delay violated the law.
Among the passages redacted from the emails released to the Center for Public Integrity but obtained by Just Security in unredacted form are the words: “Clear direction from POTUS to continue to hold”—a reference that the freeze in aid was coming directly from President Donald Trump (POTUS stands for president of the United States).
The delay in aid was central to the debate surrounding impeachment and was allegedly one of the key sources of leverage over Ukraine, as Trump and his close confidants, such as his personal lawyer Rudy Giuliani, sought to get the Ukrainian government to publicly announce an investigation involving former Vice President Joe Biden.
As Anne Weismann, a former Justice Department attorney with the nonprofit Citizens for Responsibility and Ethics in Washington (CREW), wrote, “The unredacted versions newly obtained by Just Security, however, suggest the government invoked Exemption 5 not to protect an internal deliberative process, but to keep from the public compelling evidence of the president’s misconduct and abuse of power and the complicity of administration officials in his actions.”
The New York Times made a similar point in its FOIA lawsuit concerning emails between two government officials about the withholding of aid to Ukraine. The Office of Management and Budget claimed that Exemption 5 allowed the office to withhold all documents relevant to the request. In a motion before the U.S. District Court for the District of Columbia, the Times argues that the government cannot use the exemption as a blanket excuse to withhold all documents, and notes that it cannot be used to conceal government misconduct, which may directly apply to the Times’ request.
“Under the government-misconduct exception to the deliberative process privilege, ‘where there is reason to believe the documents may shed light on government misconduct, the privilege is routinely denied, on the grounds that shielding internal government deliberations in the context does not serve the public’s interest in honest, effective government,’” the Times wrote.
The Times reasons that because the GAO determined that the Impoundment Control Act had been violated, the misconduct exception prevents the government from claiming the records must be withheld to protect deliberations.
Not All Predecisional Communications Can Be Withheld
In another case, the conservative-leaning Cause of Action Institute uncovered records in 2018, through a FOIA lawsuit, that the Justice Department wanted to improperly withhold under Exemption 5. It took a review by the independent judiciary to remove the cloak of excessive secrecy.
The records concerned the impact of a 2017 letter from the then-chairman of the House Financial Services Committee, former Representative Jeb Hensarling (R-TX), who wrote to federal agencies requesting that they treat correspondence involving Congress as not subject to FOIA. However, FOIA covers not only executive branch-created records, but also records in the executive branch’s possession.
Cause of Action submitted a FOIA request to the Justice Department for records about possible involvement of Justice offices in implementing Hensarling’s request. During a search for records relevant to the request, the Justice Department turned up two emails from the White House counsel’s office to the Justice Department’s Office of Information Policy, which issues government-wide FOIA guidance. One email released to Cause of Action began: “FYI—the administration has received several letters like the attached.” The next sentence and the attachment were withheld under Exemption 5. The group went to court to challenge the withholding.
Judge James Boasberg of the U.S. District Court for the District of Columbia independently reviewed the records without redactions and found the Justice Department had overreached in its efforts to conceal information.
Boasberg wrote in an opinion, “nowhere does the White House directly ask for legal advice in the email, nor is there any other statement that can even be fairly construed as a solicitation of legal counsel.”
“As the Court’s review makes clear, the communications here reveal no ‘deliberative process’ that could ‘expose the agency’s policy deliberations to unwarranted scrutiny.’ Absent more, the privilege cannot apply. A record is not protected merely by virtue of being a relevant predecisional communication,” he found.
Curtailing Abuse and Overuse of Exemption 5
As previously mentioned, the FOIA Improvement Act of 2016, the most recent amendment of the law, included provisions specifically seeking to constrain overuse and abuse of Exemption 5. One requires agencies to apply a “foreseeable harm” standard when seeking to withhold records under the exemption. The standard would require agencies to sufficiently show that disclosure of the requested records would cause a specific harm.
An amicus brief filed by the Reporters Committee for Freedom of the Press in an ongoing FOIA appeal in the U.S. Court of Appeals for the District of Columbia Circuit notes the purpose and intent of the foreseeable harm reform to curtail abuse of Exemption 5. (Amicus briefs are legal documents filed by parties not involved in the case but who have an interest in the subject and want to offer expertise or perspective on the issues under consideration by the court.) “Congress enacted the foreseeable harm standard to reverse the growing trend toward excessive government secrecy; Congress was concerned, in particular, with overuse of the deliberative process privilege,” the Reporters Committee argued in the brief.
The brief also emphasizes the importance of requiring agencies to identify a specific harm that FOIA exemptions were meant to prevent. “An agency cannot prevail by speculating that harm might result from disclosure, or by reciting generic rationales that could be applicable to broad categories of agency records,” the Reporters Committee wrote. “If an agency fails to satisfy the foreseeable harm standard as to any particular record or portion thereof, the [FOIA Improvement] Act makes clear that it must be released.”
Effectively reining in overuse of Exemption 5 might also require new FOIA reforms. One potential reform would be to further shrink the amount of time records can be withheld under that exemption, perhaps to 12 years, the same cap for shielding presidential records involving deliberative process.
Another promising reform would involve mandating a balancing test if an agency’s redactions are challenged. CREW’s Anne Weismann recently wrote in support of such a change that “Congress should reform the [FOIA] statute to mirror how the deliberative process privilege is treated in the discovery context.”
“When a litigant challenges the government’s invocation of the deliberative process privilege in discovery, a reviewing court balances the government’s interest in secrecy against the litigant’s interest in disclosure. Exemption 5, by contrast, has no balancing test when considering an agency claim that material is protected by the deliberative process privilege,” she wrote. “Accordingly, Congress should amend Exemption 5 to require agencies and reviewing courts to weigh an agency’s need to protect the quality of its decisions against the public’s interest in disclosure.”
As Senator John Cornyn (R-TX) said in support of the FOIA Improvement Act of 2016, “a truly democratic system depends on an informed citizenry to hold their leaders accountable.” Allowing agencies to use Exemption 5 as a “get out of jail free” card to avoid disclosing embarrassing or politically problematic records whenever they want runs directly contrary to that goal. POGO will continue working with our partners to pursue further reforms to improve FOIA and increase transparency and accountability in government.
Disclaimer: The views expressed in this blog post are strictly those of the author and do not represent the views of the Bridge Alliance Education Fund, the Bridge Alliance, or the Bridge Alliance’s member organizations. Additionally, the Bridge Alliance Education Fund makes no representations as to the accuracy of this post’s contents.