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Open Government in 2010: Taking a Look at Discretionary Exemptions
Newly inaugurated President Barack Obama's first official executive order upon taking office was a decree relating to the Freedom of Information Act. This executive order was meant to usher in a new era of openness and government transparency. It stated, in part: "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public...All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA."
In actual practice, however, the administration has found that certain pieces of information should still be kept confidential; an audit by the National Security Archives at George Washington University found that disclosure had not increased during Obama's first year in office. Less than a third of the 90 federal agencies surveyed had changed their practices significantly, and agencies were still strongly defending their decisions to withhold information. The Supreme Court recently took up the case of Glenn Milner vs. Department of the Navy, questioning whether the Navy overreached in invoking the (b)(2) exemption to withhold maps showing the expected damage from a Western Washington Naval ammunition dump explosion. The outcome of this case could have strong implications for how agencies use exemptions like (b)(2) and (b)(5). With more challenges to these "discretionary" exemptions likely, it is vitally important that agencies maintain a strong audit trail of their FOIA case management and document review decisions in order to accurately and successfully defend their disclosure decisions if necessary.
In actual practice, however, the administration has found that certain pieces of information should still be kept confidential; an audit by the National Security Archives at George Washington University found that disclosure had not increased during Obama's first year in office. Less than a third of the 90 federal agencies surveyed had changed their practices significantly, and agencies were still strongly defending their decisions to withhold information. The Supreme Court recently took up the case of Glenn Milner vs. Department of the Navy, questioning whether the Navy overreached in invoking the (b)(2) exemption to withhold maps showing the expected damage from a Western Washington Naval ammunition dump explosion. The outcome of this case could have strong implications for how agencies use exemptions like (b)(2) and (b)(5). With more challenges to these "discretionary" exemptions likely, it is vitally important that agencies maintain a strong audit trail of their FOIA case management and document review decisions in order to accurately and successfully defend their disclosure decisions if necessary.
