The Freedom of Information Act (FOIA) is a critical law for making sure the public has a fighting chance to get copies of records the government might not want it to see. For more than 40 years, people have used the FOIA to uncover evidence of government waste, fraud, abuse and illegality. More benignly, FOIA has been used to better understand the development and effects — positive and negative — of the federal government’s policies.
The importance of open government and the dangers of excessive and unnecessary secrecy are paramount.
The FOIA was created to help strike a balance between protecting the government’s legitimate interests and making sure that we the public have the information we need to make informed decisions about what we will allow the government to do in our name. Unfortunately, in some important ways that delicate balance has swung too far in favor of the government, especially through the overuse of the “deliberate process privilege.” And we need Congress to provide a counterweight on the side of the public’s right to know by putting tight boundaries around its use.
This privilege, covered by FOIA’s Exemption 5, is intended in large part to allow agency officials the freedom to share ideas and advice off-the-record. The government’s reliance on the privilege is much more extensive, however. Over time, the government has expanded the scope of material they consider subject to Exemption 5 to the point that it covers practically anything that is not a final version of a document. Among many people who frequently file FOIA requests, Exemption 5 is referred to as the government’s “We don’t want to give it to you” exemption.
In one particularly egregious example, the government has been relying on Exemption 5 to deny the public access to copies of opinions by the Department of Justice’s Office of Legal Counsel. Although the government argues that these memos are simply advice from the president’s lawyers, the reality is that these memos include the government’s reading of what agencies are allowed to do under statute. And, once OLC opinions are adopted, they have the effect of law. In recent years, we have seen the government use Exemption 5 to hide the legal basis of controversial government practices, including the torture of detainees, the use of drones to kill American citizens abroad, and the Federal Bureau of Investigation’s ability to easily access Americans’ telephone records.
Congress cannot continue to allow the government to abuse FOIA’s exemption to keep the public in the dark about the law of the land. The first step toward reigning in the use of Exemption 5 is to add a public interest balancing test to the exemption. If the government is not convinced that the requested documents would advance the public interest, a requester would still have the opportunity to ask the court to independently consider the public interest in release. Secondly, Congress should specify that the exemption should not be used to withhold information forever. In the case of the president’s records, the law only allows records to be kept from the public for 12 years. Surely, we should not accord more secrecy to agency business than we allow the president of the United States.
Bennett is assistant director of OpenTheGovernment.org. This op-ed previously appeared in The Hill.