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SHAFR Report Calls for Proactive Disclosures, Fixing FOIA Exemption B5, and More.

January 21, 2015

The Society for Historians of American Foreign Relations (SHAFR) recently released its FOIA Implementation Report, drawn in part from responses to the 2014 SHAFR survey on archival experiences and prepared for the FOIA Advisory Committee’s June 23, 2014, meeting. SHAFR’s report emphasizes that for FOIA implementation to improve, a systemic address of growing agency backlogs and the rising misapplication of FOIA exemption b(5), as well as an embrace of best practice risk management principles, must all take place.

The six-page report, signed by SHAFR  representative to the National Coalition for History Kristin Hoganson and Chair of the SHAFR Historical Documentation Committee, notes that current declassification procedures are oftentimes marred by delays and “capricious” redactions that increasingly force researchers to turn to archives abroad, resulting in an incomplete historical account “that may misinterpret U.S. policymaking or provide less balanced views.” SHAFR points out that enforcing Executive Order 13526, which stipulates the rules for automatic declassification, and fixing the CIA’s CREST search engine, would both help prevent declassification delays down the road. And, as the Archive regularly argues, SHAFR reiterates that the best single tool to address the government-wide FOIA backlogs is expanding proactive online disclosures. This would not only go a long way to help solve endemic agency FOIA backlogs, it would also make FOIA workshops more efficient by eliminating the need to spend hours processing multiple identical requests.

NDC release rates (right chart) are slowed in large part by equity re-reviews.

NDC release rates (right chart) are slowed in large part by equity re-reviews.

Equities – in which one agency “can delay the release of information that circulated across agencies” – are a major factor contributing to the FOIA delays discussed in the SHAFR report. To help address delays caused by equity re-reviews, SHAFR encourages setting time limits for third party agencies to act, after which point they lose the opportunity to do so. SHAFR argues establishing “explicit and specific rules about what can be ‘equity’ information, strictures as to how long a third party agency can hang onto its interests, and guidelines as to whether particular agency interests can impede the general move to declassification” would help fix the equity issue, thereby further improving FOIA wait times and backlogs.

The SHAFR report astutely points out that embracing best practice risk management principles would also improve FOIA’s government-wide implementation. The report notes, “NARA must balance the risks that come from releasing information against the benefits of a transparent and open society.  As it stands now, there are no incentives for being forward leaning in making documents available.  There are only punishments, real and imagined, for making a mistake.  Until FOIA processors embrace risk management principles, the process will remain slow, cumbersome, and skewed toward excessive governmental secrecy.” In that vein, building accountability measures into FOIA processing for FOIA officers who withhold too much information in response to a FOIA request would also help. Currently there are no policies in place for officials who withhold too much information and “act irresponsibly or in bad faith on FOIA.  One possible means for evaluating FOIA implementation is to grant the Information Security Oversight Office greater authority to intervene in cases in which an agency appears either derelict or obstructionist.”

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

SHAFR also urges the FOIA Advisory Committee to place a ten-year time limit on FOIA exemption b(5), the “deliberative process” exemption that potentially covers any “inter-agency or intra-agency memorandums or letters.” Agencies, however, are increasingly citing the b(5) exemption to hide any “draft” or “pre-decisional” document from the public, leading to the nickname the “withhold it because you want to” exemption. According to statistics compiled by The Associated Press last year, the b(5) exemption was invoked a record-breaking 81,752 times in 2013, and was applied to 12 percent of all FOIA denials across the federal government.  Today’s New York Times article finding that each document used for the Panetta Review, the internal 2009 CIA review finding the value of torturing detainees had been inflated, “is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well,” is emblematic of the reason why there has been a longstanding push to end agencies’ practice of withholding too much information under the b(5) exemption. The SHAFR report’s recommendation that the exemption be replaced “with a ten year exemption after which ‘pre-decisional’ documents would be treated like other government documents” is another testament to how much the exemption, as it stands, needs fixing.

The entire report and its suggestions can be found here, and is still available for public comment. The FOIA Advisory Committee’s next meeting is January 27, 2015, at 10 AM.

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