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Exemption 5 FOIA Reform Would Not Have Chilling Effect on Agency Deliberations, MDR Fees Should Be Comparable to FOIA Fees, and More: FRINFORMSUM 4/28/2016

April 28, 2016
House Oversight chair Chaffetz and his Committe's B5 language would not allow OLC memos to be withheld, among other documents. Brett Carlsen/Associated Press

House Oversight chair Chaffetz and his Committe’s B5 language would not allow OLC memos to be withheld, among other documents. Brett Carlsen/Associated Press

A recent Congressional Research Service (CRS) report provides a helpful side-by-side comparison of the FOIA reform bills currently in the House and the Senate (the National Security Archive’s analysis of both bills can be found here, here, and here). In comparing the bills’ treatment of Exemption 5, the exemption that allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public, and is applied with such frequency that it is often called the “withhold it because you want to” exemption, the report notes that both bills would prohibit applying the exemption to documents 25 years or older.

However, the report misses the mark on the House language on Exemption 5,  reiterating a common – and inaccurate – argument, that House language placing additional limits on Exemption 5 would have a chilling effect on agency deliberations, and fails to identify that the language authored by Rep. Jason Chaffetz (R-Utah), Chairman of the House Oversight and Government Reform Committee, and his colleagues, would ensure that “records that embody the working law, effective policy, or the final decision of the agency” (such as Office of Legal Council memos) cannot be withheld.

While the House’s language on Exemption 5 is stronger than the Senate’s, at this late point in the legislative session FOIA reform’s best chance for passage is for the House to adopt the Senate’s bill and ensure that necessary fixes to Exemption 5 are codified. This would still prevent agencies from making the most spurious of Exemption 5 claims in the future, like the DOE’s use of Exemption 5 to withhold 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 – on the grounds that releasing any part of the document could “confuse the public about the Government’s later policy decisions.”


It would also stop the CIA and the Department of Justice from using Exemption 5 to successfully conceal a volume of the CIA history on the Bay of Pigs, saying its release could “confuse the public”.  Amazingly enough they did so in Court when the Archive sued over the ridiculous secrecy – and they won.  And then won again after the National Security Archive’s 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 in a meaningful, bipartisan, and bicameral way. The National Security Archive would commit, of course, to working with Rep. Chaffetz and others to continue to strengthen FOIA and B5 reform in the future, should the House adopt the Senate bill this session.

The Court punted to the Congress and Congress took up the challenge.

The Court punted to the Congress and Congress took up the challenge.

The Office of the Director of National Intelligence, in response to comments submitted by the National Security Archive,, and others, has issued a revised rule amending excessive fee provisions that would have priced out Mandatory Declassification Review requesters. ODNI’s initial plan could have charged requesters up to $72 per hour to review MDR requests, even if no information was found or if all of the information that was found must be withheld, and was out of step both with the Obama administration’s National Action Plan (NAP) transparency commitments and other agencies’ reasonable fee structures. As OTG notes, “ODNI agreed with the recommendations it received, and indicated that the proposal would be replaced with fee provisions comparable to those in ODNI’s FOIA program.”

In response to ODNI’s misstep – and an earlier, identical misstep by the CIA – a mark-up to the Intelligence Authorization Act of 2016 includes language codifying that agencies’ MDR fees must be comparable to their FOIA fees, and that agencies may waive or reduce any MDR processing fees, just as with FOIA.

The Office of Government Information Services has released Part One of its examination of agencies’ use of “still interested” letters, finding, among other things, that “using still interested letters to reduce a backlog is an ineffective strategy.” The full report, available here, analyzes data from FOIA Annual Reports across 17 fiscal years (FY 1998 – FY 2014) to draw lessons from the controversial letters – which agencies send to requesters, often after years of delay, to inquire if the requester still wants their request processed. They frequently state that if the agency fails to receive a response from the requester, the agency will summarily close the request. OGIS importantly notes that the data gathered from the FOIA Annual Reports “does not capture requester frustration about the use of still interested letters. Ironically, the requesters most likely to be annoyed by correspondence of this type—those who wish for their requests to remain open, and respond by the agency’s deadline—will  never show up in data about the number of requests closed using still interested letters.”

This report does not, however, examine the legality of this practice, as nothing in the FOIA itself allows an agency to close a request if the agency does not receive a response from a “still interested” letter. According to the statute (5 USC § 552(a)(3)(A)), once a request is submitted that both “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [an agency] shall make the records promptly available to any person.” Aside from settling possible fee disagreements, FOIA does not require any further action on a requester’s part after a request has been submitted.

220px-AngletnThe CIA is playing a game of hide-and-seek with documents on famed CIA mole-hunter James Angleton that were – until recently – publicly available at Georgetown University’s Lauinger Library. In a recent article for The Intercept, Jefferson Morley, who is currently writing a biography on Angleton and his mole hunt that destroyed the careers of dozens of innocent people, detailed how the CIA caught wind of his intentions to view the library’s material, recalled the decades-old documents from the library to review them for “security material,” and then proceeded to claim that the records couldn’t be released under FOIA because the library is still in the process of sending the documents. Georgetown spokesperson John Kenchelian agreed with the CIA, saying that “the CIA has not taken possession of the documents, they are still in Georgetown’s possession,” going on to say “The CIA will be reviewing the documents at a yet to be determined time and date for potentially classified material.”

Records released thanks to a FOIA request show that FBI officials instructed agents not to reveal tech secrets to federal prosecutors out of fear the lawyers might one day work as defense attorneys, offering a timely look at the lengths to which the FBI goes to guard its technology. The revelation raises red flags for privacy advocates, who question the extent to which judicial oversight can be effective in light of such practices, and Justice Department lawyers, who are consulted extensively in sensitive cases. Former US Attorney Rachel Paulose says, “The fact that somebody may at some point go over to the other side is not a legitimate basis to withhold relevant information.”

The Defense Department recently issued a directive instructing agencies to pay equal attention to declassifying national security information as they do to classification efforts. Steve Aftergood notes that the directive is commendable, if not aspirational, saying that it is unclear what the DOD means by equal attention, arguing that it does not mean equal resources or personnel. Yet Aftergood concludes that “in a rules-based bureaucracy like the Pentagon, a directive from the Under Secretary of Defense has some intrinsic weight and cannot be entirely dismissed.”

John F. Kennedy was a member of Congress when he first met Prime Minister David Ben-Gurion in 1951. In this photograph taken at Ben-Gurion’s home, Franklin D. Roosevelt, Jr., then a member of Congress from New York, sat between them. (Image from Geopolitiek in Perspectief)

John F. Kennedy was a member of Congress when he first met Prime Minister David Ben-Gurion in 1951. In this photograph taken at Ben-Gurion’s home, Franklin D. Roosevelt, Jr., then a member of Congress from New York, sat between them. (Image from Geopolitiek in Perspectief)

President John F. Kennedy worried that Israel’s nuclear program was a potentially serious proliferation risk and insisted that Israel permit periodic inspections to mitigate the danger, according to declassified documents published recently by the National Security Archive, Nuclear Proliferation International History Project, and the James Martin Center for Nonproliferation Studies. Kennedy pressured the government of Prime Minister David Ben-Gurion to prevent a military nuclear program, particularly after stage-managed tours of the Dimona facility for U.S. government scientists in 1961 and 1962 raised suspicions within U.S. intelligence that Israel might be concealing its underlying nuclear aims.  Kennedy’s long-run objective, documents show, was to broaden and institutionalize inspections of Dimona by the International Atomic Energy Agency.

This week’s #tbt pick is chosen with this week’s 30th anniversary of the Chernobyl disaster in mind, and is a collection of original Russian-language sources from the Russian Archives on the disaster that are newly available on the National Security Archive’s Russian page. Among the documents are: Yuri Andropov’s report from 1979 on deficiencies in the original construction of the Chernobyl power station; the initial 1986 report about the explosion, which stated that there was no need to evacuate nearby residents; Central Committee decisions on emergency measures and containing the radioactive contamination; Shevardnadze’s review of foreign reactions to the accident; and excerpts from the Politburo discussions related to Chernobyl.

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Happy FOIA-ing!

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