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.
It began in 2011, when Peter Kornbluh, one of the archive’s senior researchers, asked the CIA to release the fifth and final volume of its official history of the 1961 Bay of Pigs operation, President John F. Kennedy’s abortive attempt to invade Cuba. The CIA had previously released the first four volumes, but its officials said that Volume 5 was merely a “draft,” not a published volume, and therefore fell under Exemption No. 5, as it was “part and parcel of the agency’s deliberative process.”
Kornbluh and the archive’s lawyers sued the CIA, but the U.S. Court of Appeals, D.C. Circuit, ruled 2–1 in the CIA’s favor, noting that Congress had put no time limit on that particular exemption.
The archive’s lawyers took the ruling as an invitation to Congress: If you don’t like our interpretation, the judges seemed to be saying, put a time limit on it. Thomas Blanton, the archive’s director, called some of his allies on Capitol Hill and arranged to testify before the Senate Judiciary Committee and the House Committee on Oversight and Government Reform. As a result, Republicans and Democrats on both panels, and in both chambers, passed an amendment to the Freedom of Information Act, setting a 25-year limit on Exemption No. 5. (The legislators did make a few concessions under heavy pressure from the Justice Department, for instance agreeing to preserve the exemption for documents covered by an attorney-client privilege.)
On Monday, in the first major follow-up to this revision, the CIA finally released the Bay of Pigs report’s final volume. In a cover letter, the agency’s historian David Robarge stated that he was taking that step because “recent 2016 changes in the Freedom of Information Act require” him to do so.
Tom Blanton, the archive’s director, said in an email the next day, “This is a very big deal.”
The amendment doesn’t mean that millions of classified documents will soon flood the inboxes of public interest groups everywhere. FOIA still has eight other exemptions, most notably Exemption No. 1, which covers documents that are “properly classified” in “the interest of national-defense or foreign policy.” But at least in those cases, agencies, lawyers, and sometimes judges can argue over whether certain documents were properly classified or whether their disclosure really would harm national security interests. Exemption No. 5 had allowed agencies to cut to the chase. There’s no need to argue over the merits—the document is part and parcel of the deliberative process: case dismissed.
For that reason, according to Nate Jones, director of the archive’s FOIA Project, agencies were citing Exemption No. 5 more and more frequently until Congress acted. For instance:
- The Justice Department cited the exemption to withhold an official history of its Nazi-hunting and Nazi-protecting activities.
- The State Department denied even a motion to review 800 memorandums about Henry Kissinger’s phone calls dating back to the early 1970s, on the basis of No. 5. (He was, presumably, deliberating during those calls.)
- When CIA Director John Brennan sent a memo to Sen. Dianne Feinstein explaining why the Senate Intelligence Committee’s massive study of CIA torture should remain classified, he wrote at the top of his memo’s first page, “Deliberative Process Privileged Document,” signaling that he would cite Exemption No. 5 to deny its release under FOIA.
- In a particularly ironic moment, the State Department and the U.S. Agency for International Development invoked No. 5 to deny access to a Presidential Policy Directive ordering greater transparency in decisions about foreign aid.
Now those agencies will no longer be able to make that argument, at least 25 years after the document was written. (This means, in the case of Kissinger’s phone calls and the Justice Department’s policies toward Nazis, those appeals could be filed now—and have been.)
There are still many problems with FOIA, quite aside from the hurdle of Exemption No. 1. Delays in addressing FOIA requests are epic, often extending to years. (The original version of the law, passed in 1967, required agencies at least to answer requests within 10 days; a revision stretched this to 20 days, which is still a total fiction.) The delays are due in part to understaffing and in part to bureaucratic resistance, though the latter factor varies widely from agency to agency. (FOIA-followers regard the CIA as not bad, the Pentagon’s Joint Staff as among the most egregious.)
On his first full day in office, back in January 2009, President Obama signed an executive order stating, “The Freedom of Information Act should be administered with a clear presumption: in the face of doubt, openness prevails.” The order added: “All agencies should adopt a presumption of disclosure” in “all decisions involving FOIA.” In fact, agencies “should take affirmative steps to make information public. They should not wait for specific requests from the public.”
Needless to say, the agencies have not taken this order seriously, nor has Obama pressured or prodded them to do so. Many crises crowded his agenda soon after his inauguration, leaving the cause of government openness on the back burner, if not in the freezer. If democracy survives through the next decade or so, the new amendment might let us experience a thaw.