FOIA’s Hidden Exemptions

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The idea behind the Freedom of Information Act is simple: file a request for a document with the government, and they’ll turn it over.

There are, of course, exceptions. The original Act, signed into law on July 4, 1966, listed eight broad exempted categories, including trade secrets, personal medical records, and classified information.

A ninth item ensured it wouldn’t stop there. Section b(3) of the Act says that information can be exempted from disclosure by other statutes. There’s nothing to require that these other exempting statues mention their intent to foil FOIA, and Congress is welcome to write as many of them as they like.

So an additional 270 types of information have been placed beyond FOIA’s—and citizens’—reach, according to an accounting by the Sunshine in Government Initiative.

And it’s easy for a law to exempt information from FOIA, even without ever explicitly saying that’s the intent. Those who draft legislation can, for example, impose penalties on agencies for releasing certain kinds of information, or simply insist that some information remain confidential.

That makes b(3) exemptions hard to spot.

“I just spent a huge part of my morning looking,” says Rick Blum, who helps track new b(3) exemptions as director of the Sunshine in Government Initiative, a coalition of media groups that advocates for greater access to government information.

This week, hundreds of news outlets will observe the annual Sunshine Week, a four-year old effort coordinated by the American Society of News Editors. Participating outlets will showcase stories and editorials that raise awareness of freedom of information issues.

In a bit of Congressional commemoration, Democratic Senator Patrick Leahy of Vermont and John Cornyn, his Texan Republican colleague, have introduced S. 612, new legislation that would require any new b(3) exemptions to specifically reference the Freedom of Information Act, so that these exemptions would be easier to spot. The senators have frequently collaborated on legislation designed to improve FOIA, and this is the third consecutive Sunshine Week in which Cornyn and Leahy have introduced this legislation. In 2007, it passed the Senate unanimously.

“It’s a fairly simple, early, straightforward step,” says Blum, who hopes that some drafters, now forced to cite FOIA’s primary exemptions, will decide that they are sufficient.

Because the law only applies to future b(3) exemptions that Congress might write, it does nothing to address those already in the US Code.

Like Title 7, Chapter 77, Sec 4608, Subsection G, Paragraph 1, which protects certain information about honeybee handlers, or Title 7, Chapter 80, Section 4908, Subsection c, which does something similar for watermelon producers and handlers submitting information quantifying the size of their business in order to participate in the National Watermelon Promotion Board.

“Why are watermelon growers given more protection than cucumber handlers? Is there any difference?” asks Blum. “It’s baffling.”

One irony is that that agricultural information would easily be covered by FOIA’s original provisions, which protects sensitive business information collected by the government in the course of its duties—you can’t use FOIA to get a look at privileged business information. Blum worries that excessive exemptions will not only keep information that should be accessible under wraps, but could also poison the well for sensible b(3) exemptions, like those protecting the locations of unexcavated archeological sites on public land.

Major FOIA reforms that were passed in 1996 required that agencies report to the Department of Justice the number of times they denied information requests by citing a b(3) exemption, and identify the exemptions they cited. But until last year, they weren’t required to say how many times they were citing any particular exemption.

Such vague reporting has hampered the Sunshine in Government Initiative as it works on a yet-to-be-released comprehensive accounting of b(3) provisions and their usage.

Beyond the estimated 270 existing b(3) exemptions, Blum shared some preliminary findings with CJR, including which exemptions are cited most.

“Far and away the two that pop out in our chart is tax return information,” said Blum, which. “But the other one is losing contract bids.”

According to Blum, the b(3) losing bids exemption was originally only intended to apply to defense contract bids, but has since been used to deny a wide range of requests. The exemption hampers the public from evaluating the relative merit of selected contracts. “It metastasized,” says Blum. “Maybe we should take another look at that one.”

In fact, Blum would like to see a broad reexamination of all b(3) exemptions currently on the books, either by Congress or by an investigative body like the Government Accountability Office or the Congressional Research Service.

But for now Blum is happy to see the senators try again: “It’s wonderful to focus attention on this, and the legislation does that.”

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.