Exemptions rule

A study by the Coalition of Journalists for Open Government finds federal agencies taking advantage of exemptions to the Freedom of Information Act.

From the Winter 2006 issue of The News Media & The Law, page 20.

Four years after then-Attorney General John Ashcroft issued the memo directing federal agencies to exhaust exemption options before releasing information under the Freedom of Information Act, a study reveals an increase in agency use of FOIA exemptions to withhold information.

The study, by the Coalition of Journalists for Open Government, offers one surprise: the decline in the use of Exemption 1, created to prevent disclosure of records, the release of which would damage national security. The exemption was cited about one-quarter less often in 2004 than in 2000, according to the study, even despite increasing rhetoric about curtailing public release of information to protect the nation’s security.

Instead of revealing anything about the government’s position on protecting national security secrets, the dip could be more indicative of requesters’ attitudes toward sensitive information, said Pete Weitzel, CJOG’s coordinator.

“In this time of national security concerns, requesters may not be asking for that sensitive information &#151 they’re saying ‘we’ll stay away from that’ and in earlier times when the country wasn’t at war, there may have been greater interest in seeking that information when it may not have been a danger,” he said.

CJOG compared FOIA requests in 22 federal agencies from the year 2000 with requests from the year 2004 and determined that while agencies processed fewer requests for information, their use of exemptions to withhold information increased.

Three exemptions most relied on were Exemption 4, which concerns information regarding proprietary information or trade secrets; Exemption 5, covering intra- and interagency memos; and Exemption 2, covering internal personnel rules and practices.

“It’s significant that of these three areas, at least two of them &#151 Exemptions 2 and 5 &#151 are among the most ambiguous and open to great abuse. They’re designed to give the agencies unfettered discretion in what they release,” Weitzel said.

Some of the study’s findings of changes between 2000 and 2004 include:

&#149 a 22 percent greater use of FOIA exemptions to withhold information;

&#149 the national security exemption (Exemption 1) was used 26 percent less often;

&#149 the internal agency procedures exemption (Exemption 2) was used three times more often;

&#149 the inter- or intra-agency memo exemption (Exemption 5) was used almost twice as often;

&#149 the trade secrets and commercial and financial information exemption (Exemption 4) was used 68 percent more often;

&#149 the departments of Agriculture, Justice and State were twice as likely as other federal agencies to deny a request in full;

&#149 a 10 percent decrease in FOIA requests;

&#149 a 13 percent decrease in requests processed;

&#149 a 10 percent decrease in grant of full requests;

&#149 a 57 percent increase in the cost of handling a request.

The full study is at http://www.cjog.net

&#151 Corinna Zarek