Exemption 10

House hearing focuses on laws that keep information secret

Posted: March 18, 2011 | Tags: Collaboration on Government Secrecy, Daniel Metcalfe, Exemption 3, FOIA, Freedom of Information, House Committee on Oversight and Reform, Jennifer LaFleur, ProPublica, Rick Blum, Sunshine in Government Initiative

It was a busy week on the Freedom of Information front in Washington, as the annual observance of Sunshine Week unfolded, with hearings in the House and the Senate, as well as programs at the Newseum and elsewhere. We reported earlier on the Senate hearing.

Witnesses at the House Committee on Government Oversight and Reform hearing focused on an aspect of FOIA that has become a more pronounced problem in recent years: A proliferation of laws that carve out special interest FOIA exemptions. Exemption 3 of the original FOIA law passed in 1966 permitted agencies to withhold records "specifically exempted from disclosure by statute."

Unfortunately, that gave lobbying groups a way to ask Congress to step in to prevent disclosure of information they would rather keep out of the public view. And Congress frequently has obliged.

A report this week by ProPublica’s Jennifer LaFleur shows just how big the problem has become. LaFleur and ProPublica created an interactive database of more than 240 separate laws that agencies have used to shield information. This week LaFleur was inducted into the National Freedom of Information Act Hall of Fame in recognition of her longstanding efforts to open up government records. (Disclosure: Jennifer and I have been friends for many years and have done FOIA panels and presentations together.)

No doubt some of these laws make sense, but many don’t, such as the one that prohibits the Agriculture Department from disclosing information about watermelon producers. And many news organizations, including The Washington Post and the Investigative Reporting Workshop, have faced difficulty in attempts to track guns used to commit crimes or trafficking across the Mexican border because of a law that forbids the government from disclosing most information in a gun dealers database.

The most frequently cited law, and perhaps an understandable one, prohibits the IRS from releasing tax returns. Less understandable is thelaw that prevents disclosure of losing bids on federal contracts. If you can’t see the losing bids, how can the public and competitors  judge whether contracts were awarded fairly?

At the House hearing Tuesday, Daniel Metcalfe, who directs the Collaboration on Government Secrecy at the Washington College of Law, said that agencies are wrongly applying Exemption 3. His group, which like the Workshop is part of American University, found agencies using 300 laws to avoid disclosure.

As part of the study, he said, “We found that less than half of them, just slightly more than 150, do properly qualify for use under Exemption 3, which means that by their own admissions (in their annual FOIA reports) agencies are employing roughly twice as many statutes in this way as they ought to and withholding untold amounts of information from FOIA requesters in so doing.”

Before coming to the law school, Metcalfe spent more than 25 years as head of the Justice Department’s Office of Information and Privacy. In that role he oversaw FOIA implementation throughout the federal government. (Another disclosure: I have been a guest in his class and have appeared on programs sponsored by the Collaboration on Government Secrecy.)

Metcalfe urged the House committee, which is chaired by Rep. Darrell Issa, R-Calif., to take steps to try to cut back FOIA carve-outs. Doing so, he said, would “result in dozens of agencies realizing that many dozens of the statutes they now regularly use are not truly Exemption 3 statutes at all.”

Another witness, Rick Blum, who coordinates the Sunshine in Government Initiative for a coalition of news organizations, also told the committee that Congress needs to be more careful when it creates laws forbidding disclosure. Blum’s group worked with ProPublica on the database project.

“We recognize there are reasons for keeping some information confidential, to protect national security, legitimate trade secrets and law enforcement investigations to name a few,” he said. “We simply believe that the exemptions to FOIA must be narrow in scope and enacted only after careful consideration.  We find many overbroad or unnecessary exemptions proposed each year in legislation.”

For example, as part of the financial reform bill passed last year, Congress gave the Securities and Exchange Commission broad authority to withhold records of some of its work. An outcry from openness advocates and others helped cause Congress to roll back the provision.

Blum said the issue isn’t a particular proposal, but rather the process, or lack thereof, for determining whether an exemption to FOIA is needed. “The fundamental problem is there is no gatekeeper to evaluate an agency's request for a new (b)(3) exemption.”

He suggested that the Office of Management and Budget, the Justice Department, and Office of Government Information Services could evaluate proposed (b)(3) exemptions. Among other things, Blum said, this review should determine whether “any ... harm resulting from disclosure is greater than the public benefit from disclosure.”

Blum told the committee, “While there is certainly no guarantee that overbroad statutes would be caught and addressed before becoming law, we feel these steps would go a long way to better limiting the exemptions written into law and avoid cutting overbroad or unnecessary holes into FOIA.”

What would be even better would be for Congress to proactively study the 300 or so laws that keep information out of the public domain and get rid of the ones that really are special interest legislation in disguise.

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