In principle, the Freedom of Information Act is fairly simple. Anyone can request records from an agency, and, unless the information is exempt from disclosure, the agency must provide the records within 20 business days. There are nine exemptions written into the law, covering areas such as national security, personal privacy, and confidential business information. The exemptions are reasonable and, if applied properly, would protect sensitive information while leaving large portions available to the public for request.

Yet, in practice, it often doesn’t work that way. Implementation of FOIA has many problems that make the process longer and more difficult for all involved. High on the list is agencies’ overly expansive application of the exemptions to withhold records that don’t truly deserve the protections.

While it is not the most used exemption, experienced FOIA requesters routinely cite FOIA’s Exemption 5—meant to protect certain internal government deliberations—as the most problematic of them. Tom Fitton, president of the conservative Judicial Watch, testified to Congress in 2010 that it was the “most abused exemption.” Nate Jones, formerly with the nonprofit National Security Archive and now with the Washington Post, calls it the “withhold it because you want to exemption.”

Exemption 5 is commonly interpreted as shielding from release draft government documents, records of sensitive deliberations before decisions are made, and government attorney-client deliberations. These types of documents deserve some protection. But agencies stretch the exemption to inappropriately cover other information, such as records that may paint the agency in a bad light, records that reveal problems, and records that contain embarrassing information.

There has been some progress. Federal agencies have used Exemption 5 less in the last several years than they had around the midpoint of the Obama administration.

Use of the exemption peaked in fiscal year 2013 when it was cited a total of 81,752 times, according to data available on FOIA.gov. Since then, use of Exemption 5 has generally fluctuated between 60,000 and 70,000 each year. In fiscal year 2018—the most recent data that’s public—it was used 61,135 times.

While many agencies use the exemption, the Department of Homeland Security uses it far more frequently than any other agency. In the last 10 years the department was responsible for more than half of the government’s use of Exemption 5, ranging from a low of 54% in 2018, when the agency cited it 32,962 times, to a high of 83% in 2009, with 59,510 instances. The Equal Employment Opportunity Commission is consistently the second most frequent user of the exemption, and cited it 13,041 times in 2018. Use of the exemption by other agencies ranges from not at all to a few thousand times per year.