"Executive Privilege" Used by More Federal Agencies to Withhold Information

By Cochran, Wendell; Davenport, Coral | Investigative Reporters and Editors, Inc. The IRE Journal, September/October 2006 | Go to article overview

"Executive Privilege" Used by More Federal Agencies to Withhold Information


Cochran, Wendell, Davenport, Coral, Investigative Reporters and Editors, Inc. The IRE Journal


Bush administration policies have led key federal agencies to reduce the amount of information they release under the Freedom of Information Act, a new study shows.

"The marching orders are now: If there's a basis to withhold, do it," said Elizabeth Withnell, chief counsel at the Department of Homeland Security's Privacy Office.

Agencies apparently are acting on those orders.

The American University analysis of annual FOIA reports from 13 Cabinet-level departments for 1998-2004 shows that, between 2000 and 2004, the number of fully granted FOIA requests fell by 27 percent.

In particular, agencies are relying more heavily on executive privilege claims to argue against releasing data and documents to the press and the public. Between 2000 and 2004, use of such claims to withhold information nearly doubled and, in one case, more than tripled.

The federal Freedom of Information Act, passed in 1966, presumes that federal records generally will be available to the public. But Congress gave agencies nine broad exemptions they can use to withhold records from the public, including the press.

Open-government advocates and analysts say agencies now use creative interpretations of the FOIA exemptions to conceal as much information as possible. They say the new study's findings on the use of exemptions to withhold information reinforce the image of an administration out to increase secrecy and broaden executive power.

For example, in November 2001, the military unilaterally decided to remove nearly all proper names from documents it releases, citing a FOIA exemption meant to protect employees' privacy. Between 2000 and 2005, the Defense Department's use of that reason to withhold information jumped 42 percent. Department of Defense FOIA officers say this claim is meant to protect employee safety.

But open-government advocates say it's been abused in the withholding of information ranging from names of key decision-makers to photos of the flag-draped coffins of soldiers killed in Iraq.

"They're taking a legitimate exemption and turning it on its head," said Christopher Farrell, director of investigations and research at Judicial Watch, a conservative government watchdog group that regularly uses FOIA to request government documents.

"The Department of Defense is the most outrageous, novel application of [the FOIA privacy exemption]," Farrell said. "We have reams of paper where every proper name is knocked off. That exemption talks about personnel records and medical files, and other similar files. It doesn't say you can't use any proper names. The reason why it doesn't follow the letter or spirit of FOIA is, they're attempting to conceal who's making decisions on stuff; who's approving things."

Judicial Watch is one of several groups that have had to resort to lawsuits to force the government to turn over public records requested under FOIA.

Discouraging disclosure

These developments are all part of a greater sea change of weakening FOIA and withholding information, say other experts.

"There's a historic, tectonic shift backwards in terms of transparency and openness of government, and in terms of implementing the Freedom of Information federal law," said Charles Lewis, president of The Fund for Independence in Journalism and founder of the Center for Public Integrity, a watchdog group.

Administration officials contend that government restructuring, a surge in the number of government documents produced, and the necessity for secrecy surrounding the conflicts in Iraq and Afghanistan account for the need to withhold more information from the public.

On October 12, 2001, then-Attorney General John Ashcroft issued a memo to federal agencies that was interpreted as saying it would strongly support them if they withheld more information requested under FOIA. Ashcroft recommended that departments wishing to withhold information cite a FOIA exemption allowing public records to be withheld if the documents contained inter- or intra-agency communication. …

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