Privacy Tops Reasons Agencies Withhold Information
LaFleur, Jennifer, News Media and the Law
When it comes to which exemption federal agencies rely on most to withhold information, those designed to protect individual privacy are invoked more than any other, according to an analysis of Freedom of Information Act annual reports filed by 25 federal agencies from 1998 to 2002. The use of privacy exemptions increased six-fold during that time. In 1998, the exemptions were invoked by the agencies about 55,000 times. In 2002, the exemptions were invoked more than 380,000 times.
The exemptions that have concerned government openness advocates since September 11 - those relating to national security - did not increase significantly in the last year.
The self-reported information in the annual reports is required by Congress to be completed by each agency annually. The 25 agencies chosen for this study were the same examined by the General Accounting Office for a study it released in September 2002. Some data used in this study for 1999, 2000 and 2001 were obtained from the GAO.
Two privacy-related exemptions that can be invoked by federal agencies are Exemption 6, which protects information about an individual when release of the information "would constitute a clearly unwarranted invasion of personal privacy," and Exemption 7(c), which protects personal information in law enforcement records, each represented 40 percent of all exemptions used by the agencies surveyed in 2002. Both doubled proportionally from 1998, when each exemption represented only 19 percent of all exemptions invoked.
"While we were off focusing on September 11, one thing that continued to grow was the use of the privacy exemption," said Charles Davis, executive director of the Freedom of Information center, an FOI clearinghouse based at the University of Missouri.
When Attorney General John Ashcroft issued the routine Freedom of Information Act memorandum released by new administrations in October 2001, openness advocates worried that the memo would lead to fewer records being released. In the memo, Ashcroft promised agencies that if there were any "sound legal basis" for withholding information, the Justice Department would support them, unless withholding the information would likely lead to some court precedent requiring more openness.
In March 2002, White House Chief of Staff Andrew Card ordered federal agencies to withhold information for national security reasons even when the FOI Act's exemption for national security does not apply.
But withholding information because of national security concerns did not appear to see a significant increase, according to agencies' annual FOI reports. Exemption 1, which protects classified national security information from disclosure, was actually invoked less frequently by most agencies, including the Department of Defense. The Department of State was an exception. It invoked this exemption at a higher rate than it had previous years, using this exemption to deny nearly 500 of the almost 3,800 requests it received.
"While the rise of the privacy exemption is not surprising, what you'll see in coming years is frequent use of the critical infrastructure exemption," Davis warned, pointing to a new requirement in the Homeland Security Act that protects such information from disclosure.
Among those agencies that invoked Exemption 3, which exempts information specifically protected by other statutes, some relied on statutes that related to protecting privacy. For instance, six agencies withheld information under Exemption 3 by citing Internal Revenue Code, which protects tax return information from disclosure.
Other statutes invoked under Exemption 3 included one used by nine agencies that protects contract proposals from disclosure. (41 USC Section 253(b)(1)(m)) Seven agencies relied on Rule 6(e) of the Federal Rules of Criminal Procedure, which protects grand jury information.
Other more obscure statutes also have been invoked under Exemption 3. …