CIA Hides Overclassification Recommendations with “Withhold it Because you Want to” Exemption Five; Senate FOIA Exemption Five Reform Vote on Thursday

Press Manager’s Amendment to the FOIA Improvement Act.

Sometimes I think there are FOIA gods.  Today was one of those days.  First, I read the hot off the press Manager’s Amendment to the 2014 FOIA Improvement Act –a Manager’s Amendment means that a committee vote is coming soon, Thursday in the Senate Judiciary to be exact.  A FOIA bill has already unanimously passed the House, which has signaled a strong willingness to work with the Senate’s bill.  Then a peculiar thing happened: I received a FOIA response from the CIA demonstrating exactly why FOIA reform is necessary.

The document was a CIA Inspector General report entitled “Evaluation Required by the Reducing Over-Classification Act.”  The vast majority of the report was correctly unredacted, even portions critical of the CIA’s overclassification procedures (only 43 percent of CIA personnel have completed a required training course on classification).¹

However –bafflingly and infuriatingly– the CIA used the exemption five to redact all four of the IG’s recommendations to reduce overclassification, even as it released the reasons why CIA leadership concurred with the observations and explained what they were.

“…Demonstrating as a technical matter.”

The CIA had the legal right to censor these recommendations because of the overly broad wording in the FOIA’s exemption five which allows the withholding of “inter-agency or intra-agency memorandums or letters.”  While this exemption is often used correctly to preserve candid communications between government employees, its broad wording and ease of applicability has led to extreme (even offensive) overuse, including censoring information on DOJ Nazi hunting (and protecting), a CIA history of the Bay of Pigs invasion, documents on US policy during the Rwandan genocide, and many more.

The good news is the Senate Judiciary Committee is set to vote on reforms that will make it harder for agencies to abuse exemption five.  As Toby McIntosh points out, the Manager’s Amendment does strip a public interest balancing test provision specifically for exemption five from the bill.  But the bill as amended does still include a new statutory provision stating that agencies cannot use Exemption 5 (or some other exemptions) to “withhold information… merely because the agency can demonstrate, as a technical matter, that the records fall within the scope of an exemption” or “merely because disclosure of the information may be embarrassing to the agency or because of speculative or abstract concerns.”  If the bill becomes law, an agency must also show “that disclosure would harm an interest protected by an exemption … or other provision of law.”²

I strongly doubt censoring CIA recommendations to reduce overclassification would pass these tests.

Using Exemption 5 to prevent embarrassment?

Furthermore, agencies will no longer be allowed to use b5 to withhold information older that 25 years.  This means the CIA can longer use b5 to argue that the release of its history of the Bay of Pigs debacle should be withheld because, to the CIA, its release could “confuse the public.”

And one more sweetener that I did not see coming: the Manager’s Amendment also requires a GAO report on the misuse of  Exemption 3 statutory exemptions (there is one on watermelon production) as well as Exemption 5 misuse.

That is just my analysis of Exemption 5.  I’ve barely touched the other improvements in this bill which include improvements to the FOIA Ombuds Office; a fee fix that will (actually, this time) eliminate the majority of fees when an agency misses its deadline; codification of the presumption of openness; a requirement to update agency FOIA regulations to follow the improved law; and steps toward a 21st century platform to submit (and hopefully track!) requests.

^{1. [Steve Aftergood and Bill Burr have pointed out that these required reports on overclassification have fallen short of their potential. Rather than address the root problems of vast withholding of information that the public should have access to, they largely focus on the minutia of classification markings.]↩}

^{2. [These statutory “harm test” improvements clearly *do* apply to Exemption 5.  Further reporting language on Congressional intent will make this even clearer for judges weighing b5 redactions to understand.]↩}