Decades-Old Rwandan Genocide Documents Withheld under B(5) FOIA Exemption, Researchers Forced to look Abroad for Transparency

Rwandan Patriotic Front (RPF) soldiers in Rwanda, circa September 1994. Photo from personal collection of Prudence Bushnell.

With contributions by Kristin Scalzo

Twenty years ago at least half a million members of Rwanda’s Tutsi minority, along with tens of thousands of “moderate” Hutus, were slaughtered in the Rwandan genocide, and the world is finally –with the help of newly declassified records– beginning to piece together a fuller account of the role the international community played during the atrocities.

Unfortunately, too little of this decades-old information on the Rwandan genocide is coming from the US government, whose responses to Freedom of Information Act (FOIA) requests for documents on the genocide have been marred by the misapplication and overuse of the b(5) “deliberative process” exemption.

In one instance, pursuant to the b(5) exemption, State Department reviewers redacted sections of a seminal May 18, 1994, State Department memo expressing doubts about the size of the Rwandan death toll . Apparently, the Department of State failed to realize that the memo, in which State Department Intelligence unit head Toby Gati addressed whether or not the US government should use the “G-word” to describe events in Rwanda, had been released years earlier in its entirety.  Instead, the reviewer chose to use the b(5) exemption to withhold the information from the public, citing the specious claim of the deliberative process.

“We believe 500,000 is an exaggerated estimate, but no data is available, if systematic killings began within hours of Habyarimana’s death.”

Tutsi Massacre Victims And Refugees

This “G-word” memo was initially recounted in Samantha Power’s 2003 groundbreaking history A Problem from Hell, based largely on FOIA requests she and other Archive staff filed while at the National Security Archive. Power’s book also cites the intransigence of US agencies at the time, noting the need for “congressional inquiries with the power to subpoena documents and to summon US officials of all ranks in the executive and legislative branches,” as it was nearly impossible to obtain “meaningful disclosure” about the Rwandan genocide through the FOIA process.  Power is now the US Ambassador to the United Nations.

In April 2014 the State Department also refused to release portions of a May 14, 1994, document that contained draft Security Council Resolution 918, which was released to the public in 2002. The draft Security Council Resolution increased the number of peacekeepers in Rwanda, was distributed throughout the UN, and was later released in full. But again, the State Department claimed the b(5) exemption, forcing researchers at the National Security Archive and the Center for the Prevention of Genocide of the United States Holocaust Memorial Museum to rely on UN documents, as well as documents from the government of New Zealand, to obtain this 20-year old document with obvious historical importance.

The full 2002 release at left, and the heavily redacted 2014 release on the right.

Unfortunately, these are far from isolated incidents. The heavy-handed application of the b(5) exemption, which potentially covers all “inter-agency or intra-agency memorandums or letters,” has been used to cover up documents on the US role in the Rwandan genocide (some readily available elsewhere), an embarrassing Department of Justice diversity study, a history of the Bay of Pigs invasion, and deaths due to delays at Veterans Affairs Administration hospitals.

This has led to nicknaming b(5) the “withhold it because you want to” exemption. And agencies’ use of it is skyrocketing. According to statistics compiled by the Associated Press, b(5) use is at an all-time high –used 81,752 times in 2013–, and was applied to 12 percent of all 2013′s processed requests to deny information.

The b(5) exemption has the highest possibility for discretionary release, and, if agencies followed President Obama’s 2009 FOIA memo instructing all agencies “to adopt a presumption in the favor of disclosure,” and Attorney General Holder’s guidance that documents should not be withheld “merely because [an agency] can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption,” we should be seeing it a lot less – not more.  Sadly, it is clear that agency restraint and even proclamations from the President and Attorney General have not worked.

Agencies’ continued misapplication and overuse of the b(5) exemption, despite President Obama’s and Attorney General Holder’s clear directives to the contrary, has prompted a longstanding push by the open government community for a legislative fix to end agencies’ practices of withholding too much information.

These efforts to rein in the exemption recently culminated in the Senate when Senators Leahy (D-Vt) and Cornyn (R-Tx), two long-time FOIA champions, introduced legislation to fix the b(5) loophole: the FOIA Improvement Act of 2014 would stipulate, among other things, that historical documents (documents created over 25 years ago) cannot be withheld under b(5), and would require agencies to balance the benefit to the public interest against the benefit of government employee confidentiality before withholding documents.

The b(5) pre-decisional exemption was initially conceived to prevent government employees from “working in a fish bowl,” and to allow employees to give each other –and their supervisors– candid advice.  These protections should and will remain. President Obama has correctly stated, however, that the principles behind the Freedom of Information Act prohibit the government from withholding information to prevent embarrassment, hide errors or failures, or because of speculative or abstract fears.

Unfortunately, these are precisely the things the b(5) “withhold it because you want” exemption is being increasingly used to hide, as evidenced so plainly in the exemptions used to censor these Rwandan genocide documents. Americans need to know how their government acted during key moments of history, such as Rwanda’s descent into genocide.  Currently the b(5) exemption is frequently used improperly to hide this information.  The FOIA Improvement Act of 2014 is the best solution.