Under the Freedom of Information Act, if an agency does not provide records requested under FOIA, the requestor can file an action in federal court seeking a court order to compel their disclosure. When an agency's withholding is challenged in court, attorneys from the Justice Department are typically called upon to defend the agency's action. Therefore the standards used by these attorneys in determining which withholding actions will be defended, and which will not, send a powerful signal to federal agency officials and FOIA staff on the extent to which the agency will have a free hand in withholding government records.
In addition, whatever the ultimate decision of the courts, the sclerotic pace of federal litigation means that the decision to defend an agency's withholding effectively postpones the need to turn over documents to the public for many years. Thus, agencies can use this tactic to effectively delay access to sought-after records until public interest in their contents dies down.
And delay they have. In 1997, a request was made by The New York Times under the FOIA. It received a response in 2012. The response was sent by Federal Express, Priority Overnight.
The National Archives and Records Administration says its oldest request is from September 1992, asking for information from the White House Office of Science and Technology about nuclear weapons safeguards, testing and disarmament negotiations. The documents requested are from 1961.
Another request from 1992 is for State Department documents relating to nuclear weapons accidents in 1958 through 1960. A third asked, in 1993, for documents dating to the American occupation of Italy after World War II, specifically about the Sicilian Mafia.
The National Security Archive, a non-governmental non-profit group based in Washington that is a heavy user of the Freedom of Information Act, reported last July 4, on the 45th anniversary of President Lyndon B. Johnson's signing of the law, on some older cases that were still open. Those included a 1995 request for information on Pakistani surface-to-air missiles and a 1998 request to the George Bush Presidential Library for documents relating to the bombing of Pan Am Flight 103 over Lockerbie, Scotland. The bombing happened in 1988.
The AP's review of annual Freedom of Information Act reports filed by 17 major agencies found that the administration's use of nearly every one of the law's nine exemptions to withhold information from the public increased during fiscal year 2009.
And just this year, in a FOIA case that TRAC filed, and that is now before the Second Circuit Court of Appeals, the Justice Department attorney argued that the government was entitled to withhold the names of many political appointees on government employment rolls -- extending even to withholding the name of the head of a federal agency -- even though names of federal employees had been a matter of public record since 1816.
In that same case, the DOJ attorney also argued that data compiled for statistical purposes containing the county or city where federal workers were located was exempt from disclosure on privacy grounds, whether or not it was possible to associate the data with any identifiable individual.
The White House described Obama's directive as "historic," but the Office of Management and Budget still has not responded to the AP's request under the Freedom of Information Act to review internal e-mails and other documents related to that effort.
For example, the Federal Aviation Administration cited the "deliberative process exemption " --- one of the most frequently used exclusions -- in refusing the AP's request for internal memos on its decisions about data showing collisions between airplanes and birds. The FAA initially tried to withhold the bird-strike database from the public, but later released it under pressure.
It is ironic that the "deliberative process exemption" -- which allows the government to withhold documents dealing with its internal decision making process -- is one that Obama explicitly told the agencies not to use.
Yet in Obama's first year in office, the use of the "deliberative process exemption" rose from 47,395 times in 2008 to 70,779 times in 2009.
This was the exemption claimed by the Federal Aviation Administration (FAA) to withhold nearly all records about its approval for Air Force One to fly over 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.
Other 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 provisions often vaguely worded and buried deep in legislation, Congress has granted an array of special protection over the years: information related to grand jury investigations, additives in cigarettes, juvenile arrest records, the identities of people applying restricted-use pesticides to their crops, and the locations of historically significant caves. All can be legally withheld from the public.
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