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AP review: Use of FOIA exemptions rose in 2009

By The Associated Press
03.16.10

WASHINGTON — Federal agencies haven’t lived up to President Barack Obama’s promise of a more open government, increasing their use of legal exemptions to keep records secret during his first year in office.

An Associated Press review of Freedom of Information Act reports filed by 17 major agencies found that the use of nearly every one of the law’s nine exemptions to withhold information from the public rose in fiscal year 2009, which ended last October.

Among the most frequently used exemptions: one that lets the government hide records that detail its internal decision-making. Obama specifically directed agencies to stop using that exemption so frequently, but that directive appears to have been widely ignored.

Major agencies cited that exemption at least 70,779 times during the 2009 budget year, up from 47,395 times during President George W. Bush’s final full budget year, according to annual FOIA reports filed by federal agencies. Obama was president for nine months in the 2009 period.

Departments used the exemption more even though Obama’s Justice Department told agencies that disclosing such records was “fully consistent with the purpose of the FOIA,” a law intended to keep government accountable to the public.

For example, the Federal Aviation Administration cited the exemption in refusing the AP’s FOIA request for internal memos on its decisions about a database showing incidents in which airplanes and birds collided. The FAA initially tried to withhold the bird-strike database from the public, but later released it under pressure.

The FAA claimed the same exemption to hold back nearly all records on its approval of an Air Force One flyover of New York City for publicity shots — a flight that prompted fears in the city of a Sept. 11-style attack. It also withheld internal communications during the aftermath of the public relations gaffe.

In all, major agencies cited that or other FOIA exemptions to refuse information at least 466,872 times in budget year 2009, compared with 312,683 times the previous year, the review found. Agencies often cite more than one exemption when withholding part or all of the material sought in an open-records request.

All told, the 17 agencies reviewed by AP reported getting 444,924 FOIA requests in fiscal 2009, compared with 493,610 in fiscal 2008.

The AP examined the 2008 and 2009 budget year FOIA reports from the departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury and Veterans Affairs; the Environmental Protection Agency; and the Federal Reserve Board.

Other FOIA exemptions cover information on national defense and foreign relations, internal agency rules and practices, trade secrets, personal privacy, law enforcement proceedings, supervision of financial institutions and geological information on wells.

One, known as Exemption 3, covers dozens of types of information that Congress shielded from disclosure when passing other laws.

In sentences that are often vaguely worded and buried deep in legislation, Congress has granted a wide array of information special protection over the years. Information related to grand jury investigations, the additives in cigarettes, juvenile arrest records, the identities of people applying restricted-use pesticides to their crops, and the locations of historically significant caves are a sampling of the broad range of information the public cannot get under FOIA.

The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., was so concerned about what he called “exemption creep” that last year he successfully pressed for a new law that requires FOIA exemptions to be “clear and unambiguous.”

The federal government cited Exemption 3 protections to withhold information at least 14,442 times in the last budget year, compared with at least 13,599 in the previous one, agency FOIA reports show.

The prolific use of FOIA exemptions is one measure of how far the federal government has yet to go to carry out Obama’s promise of openness. His first full day in office, Obama told agencies the Freedom of Information Act, “which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open government.”

Obama told agencies they shouldn’t hide information merely because it might make them look bad. “The presumption of disclosure should be applied to all decisions involving FOIA,” Obama wrote.

Following up on Obama’s words, the Justice Department advised agencies against withholding records sought under FOIA “merely because an exemption legally applies.” Most recently, the White House encouraged agency officials to hold contests, complete with prizes, to encourage employees to promote open government.

White House Chief of Staff Rahm Emanuel and White House Counsel Bob Bauer called on agency heads today to improve their handling of FOIA requests and assess whether they are devoting the resources needed to respond to requests “promptly and cooperatively.”

Describing the Justice Department’s actions on FOIA yesterday at the start of Sunshine Week, when news and other organizations promote open government and freedom of information, Attorney General Eric Holder said his agency is making progress.

In the past year, “we’ve seen something truly promising: an obvious and encouraging change in our government’s attitude toward information,” Holder told Justice Department employees in a speech. “We must keep up this work.”

Holder noted that Justice provided everything sought in a FOIA request in more than 1,000 more cases than it had the previous year.

“Put simply, I asked that we make openness the default, not the exception. Today, I’m pleased to report that the disturbing 2008 trend — a reduction in this department’s rate of disclosures — has been completely reversed,” he said. “While we aren’t where we need to be just yet, we’re certainly on the right path.”

Holder was joined yesterday at the Justice Department’s Great Hall by information specialists from the Homeland Security, Defense and Treasury Departments as well as the U.S. Trade Representative’s office and the Environmental Protection Agency. All said they have made substantial progress in opening up records, while agreeing more needs to be done.

Much of the Obama administration’s early effort on FOIA seems to have been aimed at clearing out a backlog of old cases: The number of requests still sitting around past the time limits spelled out in the open-records law fell from 124,019 in budget year 2008 to 67,764 at the end of the most recent budget year over the 17 agencies, the AP’s review found. There is no way to tell whether those whose old cases that were closed ultimately received the information they sought.


Related

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But public-interest coalition finds 'mixed' record with room for improvement. 09.09.09

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