Privacy tops reasons agencies withhold information

From the Summer 2003 issue of The News Media & The Law, page 27.

By Jennifer LaFleur

When it comes to which exemption federal agencies rely on most to withhold information, those designed to protect individual privacy are invoked more than any other, according to an analysis of Freedom of Information Act annual reports filed by 25 federal agencies from 1998 to 2002. The use of privacy exemptions increased six-fold during that time. In 1998, the exemptions were invoked by the agencies about 55,000 times. In 2002, the exemptions were invoked more than 380,000 times.

The exemptions that have concerned government openness advocates since September 11 — those relating to national security — did not increase significantly in the last year.

The self-reported information in the annual reports is required by Congress to be completed by each agency annually. The 25 agencies chosen for this study were the same examined by the General Accounting Office for a study it released in September 2002. Some data used in this study for 1999, 2000 and 2001 were obtained from the GAO.

Two privacy-related exemptions that can be invoked by federal agencies are Exemption 6, which protects information about an individual when release of the information “would constitute a clearly unwarranted invasion of personal privacy,” and Exemption 7(c), which protects personal information in law enforcement records, each represented 40 percent of all exemptions used by the agencies surveyed in 2002. Both doubled proportionally from 1998, when each exemption represented only 19 percent of all exemptions invoked.

“While we were off focusing on September 11, one thing that continued to grow was the use of the privacy exemption,” said Charles Davis, executive director of the Freedom of Information center, an FOI clearinghouse based at the University of Missouri.

When Attorney General John Ashcroft issued the routine Freedom of Information Act memorandum released by new administrations in October 2001, openness advocates worried that the memo would lead to fewer records being released. In the memo, Ashcroft promised agencies that if there were any “sound legal basis” for withholding information, the Justice Department would support them, unless withholding the information would likely lead to some court precedent requiring more openness.

In March 2002, White House Chief of Staff Andrew Card ordered federal agencies to withhold information for national security reasons even when the FOI Act’s exemption for national security does not apply.

But withholding information because of national security concerns did not appear to see a significant increase, according to agencies’ annual FOI reports. Exemption 1, which protects classified national security information from disclosure, was actually invoked less frequently by most agencies, including the Department of Defense. The Department of State was an exception. It invoked this exemption at a higher rate than it had previous years, using this exemption to deny nearly 500 of the almost 3,800 requests it received.

“While the rise of the privacy exemption is not surprising, what you’ll see in coming years is frequent use of the critical infrastructure exemption,” Davis warned, pointing to a new requirement in the Homeland Security Act that protects such information from disclosure.

Among those agencies that invoked Exemption 3, which exempts information specifically protected by other statutes, some relied on statutes that related to protecting privacy. For instance, six agencies withheld information under Exemption 3 by citing Internal Revenue Code, which protects tax return information from disclosure.

Other statutes invoked under Exemption 3 included one used by nine agencies that protects contract proposals from disclosure. (41 USC Section 253(b)(1)(m)) Seven agencies relied on Rule 6(e) of the Federal Rules of Criminal Procedure, which protects grand jury information.

Other more obscure statutes also have been invoked under Exemption 3. The Department of Agriculture has used the Watermelon Research and Promotion Act and the Honey Research, Promotion, and Consumer Information Act to withhold information.

Among all FOI Act requests received by the 25 federal agencies in 2002, 89 percent were granted; 4 percent were partially granted, and the remainder were either denied under one of nine exemptions or were not disclosed for other reasons. For instance, a request might have duplicated another or a request might have been too vague to fill.

The agencies with the highest rates of granting requests were Veteran’s Affairs, which granted 98 percent of all requests, and the Social Security Administration, which granted 99 percent of its requests. The VA receives by far the most requests each year with nearly 1.5 million requests in 2002. But according to another GAO study

released in March 2001, the VA counted individual’s requests for their own medical records as FOI Act requests, resulting in significantly higher numbers since 1999. Other agencies that deal with medical records count them as Privacy Act requests rather than FOI Act requests. According to GAO, SSA saw significant increases in requests filed by genealogy researchers.

But not all agencies had such high rates of filling requests. The CIA and the State Department fully granted only 14 percent and 13 percent of their requests, respectively, in 2002. The CIA granted about one-third of its requests in part and withheld information under an exemption 17 percent of the time. It withheld information for other reasons 37 percent of the time. The State Department made partial grants about 17 percent of the time. It used an exemption only 2 percent of the time and withheld information for other reasons 66 percent of the time. Neither agency described what the “other” reason were for withholding information. The reports do not show what records were requested.

For those FOI requests that are denied, requesters have the opportunity to appeal the decision. But only about one in 20 appeals are completely reversed. The Department of Interior, however, reversed the largest proportion of its appeals with 28 percent completely reversed in 2002. The VA reversed about 22 percent of all appeals received.

Some agencies still have some work to do. A GAO study released in September 2002, based on annual reports from 1999 to 2001, found that most federal agencies still had room for improvement when it comes to implementing the provisions of the Electronic FOI Act of 1996.

The study found a growing backlog of unprocessed requests at most agencies, while the number of requests has held steady or declined for most agencies. That backlog continued in 2002.

Most agencies reported that they processed simple requests within the required 20 days, but some agencies reported much higher processing times. The Department of Energy, for example, reported in fiscal year 2002 that the median number of days for processing simple requests was 75, down from 211 in 2001. The median represents the midpoint at which half the requests took more and half the requests took fewer than that number of days. The Department of State reported a median of 351 days to process simple requests in fiscal year 2001. The FOI Act does not require agencies to report their average processing times.

For its study, the GAO interviewed FOI Act requesters and agency FOI staff to study the impact of September 11 on the FOI Act: “Agency officials characterized the effects on FOIA implementation as relatively minor. . . In contrast, members of the requester community expressed general concern about information dissemination and access to government in light of removal of information from government Web sites after Sept. 11.” (GAO-02-493)

Making generalizations from the annual reports is difficult in some cases because agencies are inconsistent in how they report their annual FOI Act results, making it difficult to look at changes over time. For example, the Department of Housing and Urban Development reported its processing times for 1999 and 2000 in aggregate. In 2001, it separated them into categories. The change made impossible any comparison of processing times over the three-year time period. HUD also had not yet made its 2002 report available by publication of this article.

It would be nearly impossible to analyze responses over the life of the FOI Act because, until the significant changes in agency reporting were brought about by the Electronic FOI Act of 1996, it was impossible to tell even what percentage of requests were granted or denied — or even responded to — by agencies.

For journalists, FOI reports can be educational, Davis said. “You school yourself in the sort of byzantine process of FOIA at various agencies, which helps you understand how information flows.”