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Document Friday: Cheat Sheet for Discretionary FOIA Releases

March 18, 2011

Withheld under exemption (b)5.

Probably the most useful gem the Archive Received from its most recent Knight Open Government Survey, “Glass Half Full” is the cheat sheet that FOIA professionals at the Department of Interior (and likely many other agencies) use to determine if they can provide a document to a FOIA requester as a “discretionary release.”  Kudos to Interior for embracing the “presumption in favor of disclosure” mandated by the President and providing this document to the Archive as a discretionary release.

Guide to Discretionary/Nondiscretionary Exemptions.

Three things jump out.  First, according to this cheat sheet, four of nine of the exemptions are eligible for discretionary release.  Five are not.  Exemption 2 (low) and exemption 5 are probably the two most important.  Last Tuesday, John Podesta testified to the Senate Judiciary Committee that he called exemptions 2 and 5 as the “we just don’t want to give you the information exemptions.”

This Sunshine Week, a new OMB Watch report found that use of exemptions 2 and 5 decreased slightly between fiscal year 2009 and fiscal year 2010.  (The Department of Justice was also touting this statistic throughout Sunshine Week.)  Unfortunately, use of exemptions 2 and 5 remains higher than in FY 2008– and in almost every other fiscal year since 1998.  Despite a small downtick this year, exemptions 2 and 5 are still used more than they were during the W. Bush and Clinton eras.  This deliberative information is often of value to historians, as it shows how US policy was deliberated and created.

Second, OMB Watch also highlighted the alarming increase of exemption 3 ( known as the statuary exemption).  Basically, exemption 3 allows Congress to pass any law, which can exempt any document from FOIA.  This exemption was most prominently used in May 2009 when the President Obama exempted photographs of prisoner abuse by American soldiers at the Abu Ghraib Prison in Iraq from FOIA requests.  A statutory exemption is also the CIA’s favorite tool to deny information to requesters.

From OMB Watch.

The Sunshine in Government initiative  and Propublica compiled a list of all 172 statutory exemptions that were used in 2008 or 2009.  That means that there are really approximately 180 exemptions to FOIA, not just the the 9 exemptions listed on the Department of Interior’s chart.  Statutory exemptions “protect” things such as: cave locations, information about pygmy owls, and pornography. And we can probably expect further proliferation exemption 3s in the wake of the recent Milner vs. the Department of the Navy Supreme Court ruling.

Third and finally: even with Obama’s FOIA reforms, data withheld under exception 1 for national security information cannot be released at the discretion of the FOIA officers.  Its release is dictated by the Executive Order on Classified Information (13526).   In theory, each agency’s classification guides clearly explain which information can and cannot be declassified.  In practice, classification guides are rarely updated and the subjectivity of the declassifiers determines what exemption 1 information is released or withheld.

And I said the subjectivity, not the discretion.

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