Exemption 10

The Supreme Court giveth, the Justice Department taketh away

Posted: May 12, 2011 | Tags: Exemption 2, Exemption 3, Exemption 4, Exemption 6, Exemption 7, FOIA, Freedom of Information, Justice Department, Supreme Court

In March the Supreme Court rather bluntly told federal agencies and lower courts that they had been misinterpreting an exemption to the Freedom of Information Act for 30 years. Actually, the court could have said, in so many words, that folks should learn to read before they start saying what a law means.

The case involved a Washington man’s request for information about the blast radius of explosives stored on an island in Puget Sound. The Navy denied the request on grounds that the information could be withheld because of Exemption 2, which was designed, originally, to protect records "related solely to the internal personnel rules and practices of an agency.” But in 1981 the D.C. Circuit Court of Appeals vastly extended the reach of Exemption 2 by declaring it also could be applied to any “predominantly internal” materials whose disclosure would “significantly risk circumvention of agency regulation or statutes.” It seemed to be a significant departure from the original intent, but courts and agencies seized on it to support withholding records. The new definition became known as the “high 2” exemption, with the original language “low 2.”

Justice Elena Kagan, in writing the court’s opinion, practically laughed in the government’s face:  “The data and maps, which calculate and visually portray the magnitude of hypothetical detonations, in no way relate to ‘personnel rules and practices,’ as that term is most naturally understood.” She said that the only part of Exemption 2 that exists is “low 2,” the original language. She also said "personnel rules" mostly involve human resources and employee relations matters.

Justice advises agencies on other ways to withhold documents

When the Supreme Court threw out the “high 2” interpretation, it acknowledged it was killing 30 years of precedent and practice. For the past two months, the FOIA community has been waiting for the government’s response, and on Wednesday the Justice Department, which sets FOIA policy for other agencies, filed its new guidance.

Essentially, it says that agencies have five choices if they want to withhold records they once protected with “high 2”:

  • Try to use Exemption 1, the national security exemption, which was designed to protect classified information that "reasonably could be expected to result in damage to the national security." And, it noted, the court said that agencies could wait until a request was filed before trying to get a document classified.
  • Ask Congress to pass a new law specifically exempting that information from disclosure. Exemption 3 says that FOIA can’t be used to force release of records specifically protected by another law.
  • Use Exemption 4 if the records were provided from someone outside the federal government. This exemption protects “"commercial or financial information obtained from a person [that is] privileged or confidential.”
  • Consider applying Exemption 6, the broad privacy exemption, which already is the most-used exemption.
  • Use Exemption 7, which is primarily intended for material gathered for law enforcement purposes. However, Justice Samuel Alito, concurring in the court’s opinion in the “high 2” case, suggested that Exemption 7 could be construed more broadly to encompass records that are used at any point for law enforcement or security purposes, regardless of why they were originally collected. In fact, in the “high 2” case, the Supreme Court sent the issue back to lower courts to consider whether Exemption 7 would protect the maps the Navy wants to withhold.

Notice that none of the suggestions is “consider releasing more information.” 

That, one supposes, would have been too much to ask.

To be fair, the guidance does remind agencies that the Attorney General has said they should release some information even if it could be withheld. But it says that applies to “low 2” records that are “by definition, trivial to begin with.”  So, by all means, release information nobody would care about anyway.

And also, to be fair, there are records that can be justifiably withheld because they truly involve national security, trade secrets, privacy and other issues. The names of the Navy SEALs who killed Osma bin Laden might well be an example.

New ways to frustrate FOIA requests

Each of the Justice Department suggestions presents a set of familiar, but difficult challenges to requestors who already face uphill battles to get records in many cases.

Exemption 1 is one of the least-used exemptions because it has been relatively difficult for agencies to defend. Permitting agencies to wait until after a request has been filed to determine whether a document should be classified will not only mean more delays in an already lengthy FOIA process, but it also will spark new fights over the meaning of “national security” and “classified” and “harm."

Writing new laws to protect information seems a nonsensical suggestion by an administration that pledged to be the most open in history. Worse, a Congressional committee was told in March that many of the more than 240 laws that already protect information from disclosure were simply interest group carve outs. And another witness said agencies misuse the Exemption 3 laws to wrongly withhold information. So, it is hard to understand why we need more bad laws, like the one protecting gun dealer information or the one that makes it difficult to track Medicare fraud.

Perhaps the worst suggestion by Justice, however, is the notion that agencies apply Exemption 4 more than they do now. Effectively, the state of the law at this point gives corporations a veto over whether information they give to the federal government can be released to the public. That is true even if the company provided the information in order to get a contract or grant. At the least, it slows down release of information, for months or years. We have written about this problem extensively before here and here. It is, at the moment, the biggest obstacle to access and is likely to get worse as the government relies more on contractors and extends its regulatory authority.

As for Exemption 6, it is hard to imagine agencies being more aggressive in using privacy exemptions than they already are. One subagency of the Agriculture Department once claimed that the blueprints for a building were covered by this, even though the exemption is clearly designed to protect personal privacy.

And, in suggesting that Exemption 7 could be broadened, the Court seems as guilty of overreach as those that it rejected in disposing of “high 2,” with the unfortunate difference that there is no court that can overrule it.

The bottom line is to expect agencies to try all these tactics, as well as to attempt to invent even more ways to keep public information out of the public domain. And what appeared to be a victory for openness could turn out to make it even more difficult for journalists and other citizens to monitor government activity. That would be a shame.

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