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The Senate Tackles B(5) FOIA Reform

June 24, 2014
FOIA Champions Senator Cornyn and Leahy.

FOIA Champions Senators Cornyn and Leahy.

This March, the Veterans Affairs Administration denied a Freedom of Information Act request for the names of its hospitals where veterans died due to delays in medical screenings.  To hide this information, the VA used the b(5) “deliberative process” exemption which potentially covers any “inter-agency or intra-agency memorandums or letters.”  This misapplication was not an isolated incident.  Agency use of this b(5) catch-all exemption has skyrocketed, often to prevent embarrassment or hide errors and failures –ignoring President Obama’s clear instructions to the contrary.

Fortunately, Senators Leahy (D-Vt) and Cornyn (R-Tx), two long-time FOIA champions,  have introduced legislation to fix this “withhold it because you want to” FOIA loophole.  Today, they introduced the FOIA Improvement Act of 2014 which, in addition to b(5) reform, –and among other reforms– clarifies FOIA fee issues, grants further independence to the FOIA ombuds Office of Government Information Services, and creates a Chief FOIA Officer Council.

There has been a longstanding and strong push to end agencies’ practices of withholding too much information under the b(5) exemption.  In March of 2009, Attorney General Holder instructed that documents should not be withheld “merely because [an agency] can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.”  DOJ guidance (page 689) holds that documents which could technically be withheld under b(5) “hold the greatest potential for discretionary disclosures.”  This guidance reflects the guidance Obama issued on the first day of his presidency:  “All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA.”

In fact, during the Obama administration’s first two years, his administration pointed to the falling use of the b(5) exemption as proof that the administration really was working to “figure out where we can disclose information” and cited the b(5) dip as a FOIA success stemming from President Obama’s and Attorney General Holder’s instructions for agencies to operate with “a presumption in favor of disclosure” with respect to FOIA.  But that is no longer the case.  According to stats compiled by the Associated Press, b(5) use is at an all time high, used 81,752 times in 2013 (applied to 12 percent of all of 2013′s processed requests) to deny information.  This skyrocketing use of exemption b(5) has proven that a legislative fix is needed; the White House  and Department of Justice have been unable to get agencies to comply with their clear instructions on FOIA.

The Rise of B(5).  Chart by Lauren Harper, compiled from AP statistics

The Rise of B(5). Chart by Lauren Harper, compiled from AP statistics

"...Cannot judicially invent"

“…Cannot judicially invent”

Federal Courts have also explicitly challenged Congress to act.  This May, the DC District Court of Appeals ruled against a National Security Archive FOIA request for the release of  a 30-year-old history of the 53-year-old Bay of Pigs invasion.  The CIA claimed that the document in question was a “predicisional” draft, and used the b(5) exemption to argue its release could harm current CIA historical work, or even “confuse the public.”  In it’s two-to-one decision, the Court wrote: “According to the FOIA requester, the CIA’s interest in protecting any contentious or sensitive issues discussed in the draft of Volume V has diminished over time. But unlike some statutes, such as certain provisions of the Presidential Records Act, see 44 U.S.C. § 2204(a), Exemption 5 of FOIA does not contain a time limit. We must adhere to the text of FOIA and cannot judicially invent a new time limit for Exemption 5.”  Only Congress can.

Thankfully, Senators Leahy, Cornyn and others in the Senate Judiciary Committee have gotten the message and re-written a much improved Exemption Five.   Currently, b(5) potentially allows any agency to withhold “inter-agency or intra-agency memorandums or letters” with no limits; release of these documents is at the agency’s discretion.  Now, the Leahy-Cornyn bill stipulates that:

Kafkaesque?  Thankfully Muckrock won their appeal.

Kafkaesque? Thankfully Muckrock won their appeal.

1) Historic documents (documents created over twenty-five years ago) cannot be withheld under b(5); this parallels the successful Presidential Records Act which established that intimate conversations at the highest levels must be released twelve years after the president leaves office.1

2) And, that for contemporary documents, agencies (and courts)  now must balance the benefit to the public interest against the benefit of government employee confidentiality before withholding documents.   This balancing test now mirrors the b(6) privacy exemption that weighs such factors as the public interest, passage of time, and seniority of an individual to determine if information should be released or not.2

Of course for FOIA reforms, including the much-needed b(5) improvements, to take effect the bill must become a law.  Fortunately, the House of Representatives, spurred by the leadership of Representatives Darrell Issa (R-Ca), Elijah Cummings (D-Md), and Mike Quigley (D-Il), unanimously passed a FOIA reform bill this February with 410 votes.

Unclassified titles of OLC memos withheld under Exemption 5.  From Ryan Reilly.

Unclassified titles of OLC memos withheld under Exemption 5. From Ryan Reilly.

It’s hard to understate the importance of the work done by Issa,Cummings, Quigley and their staffers.  The House bill has many important FOIA reforms, including the codification that agencies may only withhold information if it “reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption.”

The work of the House FOIA champions is also tactically important.  Since 2005, the Senate Judiciary Committee has passed FOIA improvement bills three times without becoming law. In 2010 the Faster FOIA bill passed the entire Senate by unanimous consent, only to die in the House. A year later, the 2011 Faster FOIA bill again passed out of the Senate by unanimous consent; but this time –in an act that still stings to sunshiners– Speaker Boehner gutted it and replaced it with the last-minute, secretly-drafted “Budget Control Act of 2011″ to ensure quicker passage in the Senate.

Now, an optimist would say, may the best chance for FOIA bills passed in the House and Senate to be reconciled in conference and become law.

The National Security Archive strongly supports the Senate and House bills, and is deeply impressed that Representatives and Senators Issa, Cummings, Quigley, Leahy, and Cornyn realized the importance of substantive FOIA reform and worked together to improve the law so that –among other improvements– agencies will no longer be able to withhold information —Department diversity studies, histories of the Bay of Pigs invasion, or abuses at Veterans Affairs– merely “because they want to.”

1. Including, somewhat ironically, the recent release of Clinton staffers gossiping about Senator Leahy.

2. The bill also includes a higher bar for documents covered under the attorney-client relationship.

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