Legal & Policy Challenges

The administration should curb new exemptions from FOIA

According to government agencies themselves, every year federal departments and agencies cite roughly 140 statutes to deny thousands of requests for information; our coalition (the Sunshine in Government Initiative) estimates that more than 240 are on the books. The agencies themselves are often the originators of these new legislative loopholes.

 

Recommendation: Any new statutory exemptions proposed or supported by the Obama administration should be limited in scope and life and include oversight. The Obama administration should prohibit agencies from proposing new Exemption 3 statutes unless agencies determine that:

 

1. Existing statutory protections and exemptions within FOIA are not adequate

2. The interest in withholding is specific and articulated

3. The interest in withholding clearly is greater than the public interest in disclosure

4. The exemption is publicly disclosed at the time it is proposed

 

Further, any new proposals that meet the above criteria should be crafted narrowly to limit harm to the free flow of information. Specifically, each new proposal under Exemption 3 should:

 

1. Clearly state its purpose and explain why the existing exemptions are inadequate

2. Be narrowly drafted so as not to exceed the specific non-disclosure needs compelling the exemption

3. Provide for public reporting that measures the efficacy of the exemption in achieving its stated goals

4. Offers alternative and equivalent means of public oversight

5. Have a built-in sunset provision

6. Clearly state in the text of the statute that the proposal is not intended to inhibit whistle blowing

7. Ensure any penalties for improper decisions in carrying out the statute are themselves balanced and without favor to withholding or disclosure

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Idea No. 597