The Foia Improvement Act: Using a Requested Record's Age to Restrict Exemption 5's Deliberative Process Privilege

By Reisch, Zachary D. | Boston University Law Review, October 1, 2017 | Go to article overview

The Foia Improvement Act: Using a Requested Record's Age to Restrict Exemption 5's Deliberative Process Privilege


Reisch, Zachary D., Boston University Law Review


INTRODUCTION

Cuban exiles intent on overthrowing Fidel Castro landed at the Bay of Pigs in Cuba on April 17, 1961.1 The Central Intelligence Agency ("CIA") had trained them as soldiers and tried to assist them with an ineffective bombing raid on Castro's airplanes.2 The Cuban military captured more than one thousand of the exiles and killed more than one hundred.3 The invasion failed.4

A little more than a decade later, in 1973, CIA historian Jack Pfeiffer began working on a history of the Bay of Pigs invasion.5 Pfeiffer's project produced five volumes, none of which were available to the public until 1998 when the CIA released volume three.6 In April 2011, the National Security Archive (the "Archive"), a non-profit organization "that facilitates scholarship by placing declassified government documents into the public record,"7 sued the CIA under the Freedom of Information Act ("FOIA")8 for release of the other four volumes.9

FOIA, passed in 1966, obligates federal agencies to make records available upon request except under specified circumstances.10 Before Congress passed FOIA, members of the public who wanted access to government records had to rely on a provision of the Administrative Procedure Act ("APA") that allowed requesters to see government information only with good reason; under the APA, executive agencies retained broad authority to deny such requests.11 Additionally, requesters could not seek judicial review if their requests were denied.12 Today, FOIA allows "any person" to request documents,13 permits agencies to withhold records only in specific circumstances,14 and allows for judicial review of withholdings.15 If an agency denies a FOIA request, the requester may appeal within the agency.16 If that appeal fails, the requester may then bring suit in federal court to compel release.17

The Archive's FOIA lawsuit against the CIA was partially successful. Later in 2011, the CIA declassified and released the first, second, and fourth volumes of Pfeiffer's history, but refused to release the fifth volume.18 When the Archive filed a new lawsuit against the CIA to compel disclosure of volume five, the CIA argued that it could withhold the manuscript pursuant to the deliberative process privilege, which is incorporated into FOIA's Exemption 5.19

The exemptions to FOIA's general disclosure requirement reflect the tension within the statute between promoting government openness and maintaining government secrecy when necessary.20 One of FOIA's exemptions, Exemption 5, walks this line by allowing agencies to withhold records that would be privileged at trial.21 When using Exemption 5, agencies most often invoke the deliberative process privilege; this privilege protects records relevant to government policymaking.22 Agencies, however, can often release records that fall under Exemption 5 at their discretion.23 When President Barack Obama took office, his administration articulated a foreseeable harm standard that governed when agencies should release otherwise exempt records.24 Under this standard, an agency should withhold an exempt record only if there is a reasonably foreseeable chance that disclosure would harm "an interest protected by one of the statutory exemptions,"25 such as the deliberative process of government officials.26

The CIA refused to make a discretionary release of Pfeiffer's fifth volume, leaving the Court of Appeals for the D.C. Circuit to decide whether the record fell under Exemption 5's deliberative process privilege. In National Security Archive v. CIA,27 the D.C. Circuit affirmed the lower court's decision that the fifth volume did fall within Exemption 5 and did not have to be released.28

During congressional hearings about two bills to amend FOIA, advocates for FOIA reform criticized the decision in National Security Archive.29 Anne Weismann, the Executive Director of a nonprofit organization that "expose[s] misconduct and malfeasance in public life,"30 specifically attacked the decision's refusal to place greater importance on the requested record's age. …

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