FOIA Advisor

FOIA News: Slate's Fred Kaplan on the benefits of FOIA reform

FOIA News (2015-16)Kevin SchmidtComment

A Victory for Transparency, Finally

By Fred Kaplan, Slate, Nov. 2, 2016

We don’t yet know why James Comey wrote that letter to Congress about Hillary Clinton’s emails. We don’t fully know why President Obama decided not to bomb Syria after Bashar al-Assad crossed the “red line” by using chemical weapons. We don’t even know why President George W. Bush decided to invade Iraq. However, in 20 years or so, we might be able to unravel those mysteries and many more, thanks to a little-noticed revision to the Freedom of Information Act.

The revision—passed by Congress in July but making its first dent in the public record just this week—severely weakens one of the nine exemptions, under Section (b) of FOIA, that federal agencies can cite when rejecting a citizen’s request for specific government documents, declassifying them if necessary. The one in question is Exemption No. 5, which covers “inter-agency or intra-agency memorandums or letters”—a phrase that courts have since interpreted to include memos that are “part and parcel” of an agency’s “deliberative process.”

Under the new revision, agencies can no longer cite Exemption No. 5 as a reason for rejection if the document is at least 25 years old. Under the original language, as interpreted by the courts, the exemption had no sunset clause—an agency could justify keeping a document secret for all eternity.

The new language is the result of a five-year court battle waged by the National Security Archive, a private research organization that’s been filing FOIA lawsuits against the government, often successfully, since 1985.

Read more here.