The Most Abused Freedom of Information Act Exemption Still Needs to Be Reined In – Project On Government Oversight

Judge James Boasberg of the U.S. District Court for the District of Columbia independently reviewed the records without redactions and found the Justice Department had overreached in its efforts to conceal information.

Boasberg wrote in an opinion, nowhere does the White House directly ask for legal advice in the email, nor is there any other statement that can even be fairly construed as a solicitation of legal counsel.

As the Courts review makes clear, the communications here reveal no deliberative process that could expose the agencys policy deliberations to unwarranted scrutiny. Absent more, the privilege cannot apply. A record is not protected merely by virtue of being a relevant predecisional communication, he found.

As previously mentioned, the FOIA Improvement Act of 2016, the most recent amendment of the law, included provisions specifically seeking to constrain overuse and abuse of Exemption 5. One requires agencies to apply a foreseeable harm standard when seeking to withhold records under the exemption. The standard would require agencies to sufficiently show that disclosure of the requested records would cause a specific harm.

An amicus brief filed by the Reporters Committee for Freedom of the Press in an ongoing FOIA appeal in the U.S. Court of Appeals for the District of Columbia Circuit notes the purpose and intent of the foreseeable harm reform to curtail abuse of Exemption 5. (Amicus briefs are legal documents filed by parties not involved in the case but who have an interest in the subject and want to offer expertise or perspective on the issues under consideration by the court.) Congress enacted the foreseeable harm standard to reverse the growing trend toward excessive government secrecy; Congress was concerned, in particular, with overuse of the deliberative process privilege, the Reporters Committee argued in the brief.

The brief also emphasizes the importance of requiring agencies to identify a specific harm that FOIA exemptions were meant to prevent. An agency cannot prevail by speculating that harm might result from disclosure, or by reciting generic rationales that could be applicable to broad categories of agency records, the Reporters Committee wrote. If an agency fails to satisfy the foreseeable harm standard as to any particular record or portion thereof, the [FOIA Improvement] Act makes clear that it must be released.

Effectively reining in overuse of Exemption 5 might also require new FOIA reforms. One potential reform would be to further shrink the amount of time records can be withheld under that exemption, perhaps to 12 years, the same cap for shielding presidential records involving deliberative process.

Another promising reform would involve mandating a balancing test if an agencys redactions are challenged. CREWs Anne Weismann recently wrote in support of such a change that Congress should reform the [FOIA] statute to mirror how the deliberative process privilege is treated in the discovery context.

When a litigant challenges the governments invocation of the deliberative process privilege in discovery, a reviewing court balances the governments interest in secrecy against the litigants interest in disclosure. Exemption 5, by contrast, has no balancing test when considering an agency claim that material is protected by the deliberative process privilege, she wrote. Accordingly, Congress should amend Exemption 5 to require agencies and reviewing courts to weigh an agencys need to protect the quality of its decisions against the publics interest in disclosure.

As Senator John Cornyn (R-TX) said in support of the FOIA Improvement Act of 2016, a truly democratic system depends on an informed citizenry to hold their leaders accountable. Allowing agencies to use Exemption 5 as a get out of jail free card to avoid disclosing embarrassing or politically problematic records whenever they want runs directly contrary to that goal.POGO will continue working with our partners to pursue further reforms to improve FOIA and increase transparency and accountability in government.

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The Most Abused Freedom of Information Act Exemption Still Needs to Be Reined In - Project On Government Oversight