The Next FOIA Fight: The B(5) “Withhold It Because You Want To” Exemption

Something troubling happened this Sunshine Week.

At the 16th Annual National Freedom of Information Day at the Newseum’s Knight Conference Center, former White House Office of Information and Regulatory Affairs Administrator Cass Sunstein accepted the prestigious James Madison Award on behalf of the five-member President’s Review Group on Intelligence and Communications Technologies which recommended the end of bulk telephone metadata collection.

Then, Sunstein used his acceptance speech for the James Madison Award –which recognized those who “championed, protected and promoted public access to government information and the public’s right to know”– to invoke the memories of Madison and Thomas Jefferson to argue to a roomful of openness activists that they should support continued government secrecy.

Citing the debate during closed sessions of the Constitutional Convention more than 225 years ago,1 Sunstein appealed for the continued need to protect the “deliberative process.” Government agencies are increasingly citing this same “deliberative process” to trigger a Freedom of Information Act exemption –b(5)– that allows them to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public. This incredibly large cutout is often called the “withhold it because you want to” exemption.

The use of this “withhold it because you want to” exemption has skyrocketed over the past two years of the Obama administration. As a result, transparency advocates, including the National Security Archive, as well as members of House and Senate committees responsible for FOIA have targeted b(5) reform as a vital inclusion to any FOIA bill that passes Congress.

But perhaps I am just getting wound up. Maybe Cass Sunstein was not using the one week that the US celebrates openness to channel a White House message that meaningful reform to the FOIA won’t happen on its watch. Maybe he was using Madison and Jefferson on his own volition to “nudge” us away from attempting pro-transparency reform.

At any rate, as soon as I heard Sunstein’s Madison Award acceptance speech calling for continued (actually, increasing) secrecy, I endeavored to try and make the case why b(5) reform will be the most important FOIA fight over the next few years.

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During the Obama administration’s third Sunshine Week, his FOIA point man, Steve Crowley pointed to the falling use of the b(5) exemption as proof that the administration really was working to “figure out where we can disclose information” and cited the b(5) dip as a FOIA success stemming from President Obama’s and Attorney General Holder’s instructions for agencies to operate with ” a presumption in favor of disclosure” with respect to FOIA.

But the Obama administration is certainly not making that argument anymore. According to stats compiled by the Associated Press, b(5) use is at an all time high, used 81,752 times in 2013 (applied to 12 percent of all of 2013’s processed requests) to deny information. This skyrocketing use of exemption b(5) has proven that a legislative fix is needed; the White House has been unable to get agencies to comply with it’s clear instructions on FOIA.

A few glances at the types of information b(5) is used to hide also demonstrates why the exemption needs to be reined in. These head-shaking denials also suggest, sadly, that the United States may have earned its embarrassing ranking of 44th-worst in the Global Right to Information World Wide Index. (The US FOI law falls between the Tunisian and Nigerian FOI laws.) Egregious examples of b(5) withholding include:

The Department of Justice’s use of b(5) to censor dozens of pages of a candid history of Nazi-hunting (and Nazi-protecting) by the U.S. government to such a self-defeating extent that former officials leaked the entire document to the New York Times, instead of fulfilling a Freedom of Information request. The National Security Archive submitted a FOIA request for the history of the Office of Special Investigations in November 2009, only to be denied by the Justice Department on grounds that the document –although completed in 2006 and never revised since then– was only a draft and was “predecisional” and therefore withholdable under the b(5) exemption to the FOIA. When our appeal met no positive response –despite President Obama’s and Attorney General Holder’s clear guidance on FOIA –the Archive filed suit. Only after the lawsuit was filed did the Justice Department begin to “process” the document for release –which meant the wholesale application of b(5) “white-out” to sections of the document – deleting even the “personal opinions” of Congresswoman Liz Holtzman as she had expressed them in public as well as to the author of the history. Fortunately, a Department of Justice employee leaked a copy of this history to the public. See here to judge for yourself if the sections the DOJ “withheld because it wanted to” were justified.

The CIA, supported by the Department of Justice, is currently using the b(5) exemption to keep secret its history of the 1961 Bay of Pigs Invasion, arguing that it’s release “could confuse the public.” As Judge for the US Court of Appeals Judith Rogers explained to U.S. Attorney Mitchell P. Zeff, the CIA and DOJ are attempting to “seek[] ad infinitum protection of drafts” when the FOIA is actually a disclosure statute and exemptions must be narrowly drawn.

Muckrock’s Shawn Muscrave has reported that The Federal Elections Commission attempted to argue that it’s own guidance on when to apply b(5) is itself exempt from release under b(5) –even though it had already been posted on the FEC’s website. Muckrock has also compiled an extremely useful list of agencies’ b(5) guides.

A protracted and wholly unnecessary fight over b(5) delayed the release of historic Henry Kissinger notes of telephone conversations, “telcons,” for seven years. In 2007, in response to a FOIA request filed in 2001, the State Department denied over 800 historic telcons on FOIA (b) (5) pre-decisional grounds. Finally, in 2013 the Department of State released a portion of them, including Kissinger’s conversations with government and former officials during the Ford Administration. As interesting as the telcons are, they contain no information that ought to have been withheld. Unquestionably they include candid discussion of issues and personalities and inter-government decision-making generally, but that provides no excuse for agencies to apply the b(5) “pre-decisional” FOIA exemption to federal records produced decades ago.

The Department of Justice continues to use b(5) to withhold Office of Legal Counsel Opinions –opinions which, essentially, form a body of law that binds all federal agencies– even though the Freedom of Information Act clearly states that “statements of policy and interpretation [an] agency has adopted” must be released. Despite the Obama administration’s proclamations about a presumption of disclosure, The Center for Responsibility and Ethics in Washington’s strong case is currently pending in the US District Court. Recognizing the untenability of its argument, the Obama administration has officially released some OLC memos (such as the Bush-era memo blessing the legality of torture in some instances) and leaked others (such as the memo it leaked to Charlie Savage of the New York Times blessing the assassination of US citizen Anwar Al-Awlaki. No Espionage Act investigation or prosecution, of course.)

Last year, the Department of State, and the U.S. Agency for International Development argued, ironically, to a federal judge that a Presidential Policy Directive instituting increased aid transparency should be withheld from the public (even though the Administration had released a “fact sheet” largely disclosing what was in the PPD). The Center for Effective Government was forced to file a FOIA lawsuit, which it won.

Most recently, CIA Director John Brennan’s wrote a document for Senator Dianne Feinstein laying out his reasons for why he believed the Senate Intelligence Committee’s 6,200 page report on the CIA’s torture program should remain classified. To ensure that his reasoning about why the CIA’s torture program should, itself, remain hidden from the public and FOIA, he was careful to make sure the first page had the marking: “Deliberative Process Privileged Document,” signalling to his FOIA shop he wanted it denied under the b(5) exemption.

These are just a few of the most egregious examples of the b(5) “withhold it because you want to” that I could recall. If you have another example, add it in the comments.

B(5) was initially conceived to prevent government employees from “working in a fish bowl,” to allow employees to give each other –and their supervisors– candid advice. These protections should and must remain. But, b(5) was cited 81,752 times last year, certainly not always to protect the flow of government employee ideas and positions. President Obama correctly stated that the principles behind the Freedom of Information Act prohibit the government from withholding information to prevent embarrassment, hide errors and failures, or because of speculative or abstract fears. But these are precisely the things the b(5) “withhold it because you want” exemption is being used to hide more and more. Agency restraint has not worked. Proclamations from the President and Attorney General have not worked. It is time for a Legislative correction to the Freedom of Information Act.

Openthegovernment.org’s Amy Bennett opened her Senate Judiciary Committee testimony this Sunshine Week by stating that the open government community strongly supports b(5) reform to the Freedom of Information Act. The two-part fix she proposed will preserve the ability for government employees to give candid advice, while preventing the use of b(5) to withhold information that the public should have access to.

“One, Exemption 5 needs a public interest balancing test. If the government were not convinced that the requested documents would advance the public interest, a requester would still have the opportunity to ask a Court to independently weigh the government needs in invoking the privilege against the needs of the requester. Two, there needs to be a time limit. Currently, a President’s records are only protected from release [under the ‘P(5) deliberative process’ exemption of the Presidential Records Act] for twelve years from the end of that presidency. Surely, we should not accord more secrecy to agency business than we accord the President of the United States.”

Perhaps the best news of this Sunshine Week was that the FOIA Lion of the Senate, Chairman of the Judiciary Committee Patrick Leahy, signaled that he would work to reform b(5). At the same hearing, he said:

“Another impediment to the FOIA process is the growing use of exemptions to withhold information from the public… Federal agencies used FOIA Exemption 5 to withhold information from the public more than 79,000 times in 2012 ─ a 41 percent increase from the previous year. I am concerned that the growing trend towards relying upon FOIA exemptions to withhold large swaths of government information is hindering the public’s right to know.”

Another FOIA champion, Ranking Member Chuck Grassley, also signaled his willingness to continue to cooperate to produce legislation which reforms FOIA. Work between Senate Judiciary Committee Staff and open government groups is underway.

The House has already unanimously passed a FOIA bill co-written by the Chairman of the House Oversight Committee Darrell Issa and Ranking Member Elijah Cummings, which takes a step to stem the overuse of exemption b(5). The House-passed bill codifies that an agencies may only withhold information if it “reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption, or if disclosure is prohibited by law.” Unfortunately, I believe that since agencies are already ignoring the President and Attorney General’s instruction, they will likely also ignore this part of the statute. A b(5) time limit and remedy for judicial review, as Amy Bennett testified, is the best fix.

Miriam Nisbet, Director of the FOIA Ombuds Office, the Office of Government Information Services, also spoke in favor or increased disclosure of information which could technically be withheld under b(5). Speaking at the Collaboration on Government Secrecy’s Freedom of Information Day at American University Washington College of Law. She called b(5) her “favorite exemption” because her Ombuds Office is often successful in getting more information released that agencies initially withheld under b(5).

Meanwhile, the Director of the Office of Information Policy –the other government agency nominally in charge of enforcing FOIA policy– provided confusing and disheartening testimony on b(5) recently. When asked about the startling increase in the invocation of the b(5) exemption DOJ OIP Director Melanie Pustay testified that it was due to an increase in invoking b(5) for “attorney work product and attorney client information, which is not subject to discretionary release like deliberative process is.” (emphasis added.)

However, she is contradicted by her own agency’s guidance circulated after her own Attorney General called for more discretionary releases, which states that both “attorney work product” and “attorney client information” are subject to discretionary release. Likewise, the Department of Justice’s own FOIA guide states (pages 689-690): “The universal considerations to take into account in considering whether to make a discretionary release of information that otherwise could be withheld under the deliberative process privilege are the sensitivity of the record’s contents and the age of the document. Records protected by other Exemption 5 privileges [ed: including “attorney work product” an “attorney client” information] can be the subjects of discretionary release as well.” (Emphasis added.) Such confusion within the DOJ OIP about when the b(5) exemption should be used demonstrates, again, the need for a Legislative fix.

I’d like to end Sunshine Week with a bit of good news. There is one other high-ranking backer of b(5) reform. That is Special Advisor to the President John Podesta, brought back into the White house last December. His FOIA bona fides are impressive.

In fact, the first time I ever heard the phrase “withhold it because you want to exemption” was when he coined it, during his Sunshine Week 2011 testimony before the Senate Judiciary Committee calling for reform to b(5) FOIA exemption.

Mr. Podesta, please pass this blog post along to Cass Sunstein, and explain to the White House why opposing b(5) reform is a bad idea.

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1. Sunstein did not mention that Congress is not covered by the Freedom of Information Act, so its members can continue to engage in candid speech and debate without threat. He also did not mention that the records of the Constitution Convention were unsealed thirty years after the fact. Meanwhile, the Central Intelligence Agency and Department of Justice are currently arguing in the DC Court of Appeals that the b(5) “deliberative process” exemption should last in perpetuity because the document they are attempting to hide (a draft history of the bungled 1961 Bay of Pigs invasion) has the potential to “confuse the public.”↩