Archive’s Nomination of DOE for FOILIES Award for Egregious B5 Invocation Reminder Why FOIA Reform Necessary

The Department of Energy won the Archive’s FOILIES nomination this year.

The National Security Archive nominated one especially bad FOIA response from the Energy Department for the second-annual FOILIES Awards – presented for the most extraordinary and egregious FOIA request responses. Spearheaded by the Electronic Frontier Foundation (EFF), the “winners” of the FOILIES Awards were announced earlier today.

The Department of Energy earned the dubious distinction from the Archive for its lack of “sense and segregability” and spurious use of FOIA’s Exemption Five.

“Release could confuse the public about the Government’s later policy decisions”

Specifically, the Department of Energy is withholding a 1978 letter from former Los Alamos National Lab director Harold Agnew to the White House’s Office of Science and Technology Policy director Frank Press on the Comprehensive Test Ban Treaty (CTBT) in full – even though the document is segregable and contains information that is already public knowledge thanks to previous State Department publications on the same subject. The DOE cited the national security exemption and FOIA’s “withhold it because you want to” Exemption Five for its needless secrecy, saying that releasing any part of the document could “confuse the public about the Government’s later policy decisions.” The DOE is taking this implausible stance even though the State Department has published declassified information on the CTBT – and Agnew’s negative views on it – in three Foreign Relations of the United States publications. It appears the Energy Department may be the confused one – forgetting that FOIA’s Exemption Five is not designed to withhold embarrassing or inconvenient information decades after the fact, and the FRUS publications should allow the DOE to release at least some parts of the document.

Trust us. You don’t have to read it for yourselves.

The Archive’s nominations for last year’s FOILIEs also included a bogus argument that a FOIA release could cause confusion. The Archive nominated the CIA and the Department of Justice for arguing that a volume of a CIA history on the Bay of Pigs should also be withheld under the Exemption Five because it could “confuse the public”.  Amazingly enough – they won.  And then won again after our appeal was denied in the DC Court of Appeals. In its ruling the Court invited Congress to place a time limit on the exemption, and Congress is now taking up the challenge.

Yesterday’s passing of S337 – introduced by Senator John Cornyn (R-Tx) and cosponsored by Patrick Leahy (D-Vt) and Charles Grasssley (R-Ia) – will help prevent agencies from making such egregious claims in the future by preventing agencies from invoking Exemption Five for documents 25 years are older — however the sunset only applies to the “Deliberative Process” privilege (which covers drafts, and communications including emails and memos); the Attorney Client privilege and Attorney Work Product Privileges have been removed. The Archive’s Nate Jones notes that while the Senate’s language on B5 is “weakened from the reform that passed in 2014, the most egregious abuses will still be sunset (like the CIA’s withholding of its Bay of Pigs History.”

The House passed a similar bill in January, which has much stronger Exemption Five reform that does not have Attorney Client or Work Product privileges cut-outs and includes a strong test needed to pass to withhold modern records.

Both bills — which should be reconciled so the best parts of both are preserved — also:

• Codify the presumption of openness mandated in Obama’s Day OneFOIA Memo, which “directs agencies to withhold information requested under FOIA only when there is ‘foreseeable harm’ to one of the interests protected by a FOIA exemption;”
• Strengthen the FOIA ombuds OGISby granting it the “ability to communicate directly with Congress and issue advisory opinions in mediation.” However, the House bill also has a troubling carve-out for the frequently FOIA-ed 17 agencies that make up the Intelligence Community, exempting them from certain provisions of the bill and necessary reforms to the consultation process;
• Improve public access to digital records;
• Require agencies to update their FOIA regulations within 180 days after the passage of the bills. Currently, over halfof federal agencies have not updated their regulations to comply with the 2007 Open Government FOIA improvements.  By neglecting to update their “FOIA handbooks,” agencies are essentially ignoring Congress’s FOIA reforms.