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FOIA Eyes Only: How Buried Statutes Are Keeping Information Secret

Invoking exemptions to Freedom of Information Act may deter accountability.

A solar eclipse viewed on July 11, 2010. (Martin Bernetti/AFP/Getty Images file photo)

Anyone can request information from U.S. officials under the Freedom of Information Act, a law designed to allow people to know what their government is up to.

When a government agency withholds information from a requester, it typically must invoke one of nine FOIA exemptions that cover everything from national security to personal privacy. But among that list is an exemption—known as b(3) for its section in the FOI Act—that allows an agency to apply other statutes when denying information requests.

Some of those statutes allow exemptions that seem quite reasonable, for example to protect medical or financial information. Many others are more puzzling.

Citing the Watermelon Research and Promotion Act, for example, the U.S. Department of Agriculture has withheld lists of watermelon growers.

Under another law, information about the location of “significant” caves has been withheld by USDA and the U.S. Department of the Interior.

FOIA Exemptions

Exemption # Description
1 National Security – Information that is properly classified and in which release would harm national security.
2 Internal Agency Rules – Information "related solely to the internal personnel rules and practices of an agency."
3 Statutory Exemption – Information that can or must be withheld under another law. See our breakdown of uses of Exemption 3.
4 Trade Secrets – Trade secrets and commercial or financial information obtained from a person that is privileged or confidential.
5 Internal Agency Memos – Intra- or inter-agency memoranda that would be considered privileged in civil litigation.
6 Personal Privacy – Personnel and medical files and similar files.
7 Law Enforcement Records – Law enforcement records in which the release would interfere with an investigation or create an unwarranted invasion of privacy.
8 Bank Reports – Federal government records of banks "contained in or related to examination, operating, or condition reports."
9 Oil and Gas Well Data – Geological and geophysical information and data, including maps, concerning wells.

Until now, no one has known just how extensively these other laws were used across the federal government. New data compiled by the Sunshine in Government Initiative, a coalition of journalism and transparency groups, shows that agencies have applied more than 240 other laws in withholding information over the last decade.

And you can see them for yourself: We’ve created an interactive database of all the exemptions used in 2008-2009 and how they were used.

“FOIA is supposed to be a disclosure act, and these b(3)s make it more of a withholding act,” said Patrice McDermott, director of another transparency group, openthegovernment.org. “They can have a detrimental effect to know what government’s doing and hold it accountable.”

For years such provisions could be easily slipped into legislation without notice. But changes to FOIA that went into effect in 2009 require that proposed legislation must specifically say that it will create a new b(3) exemption. As part of their annual FOIA reports, agencies are now required to disclose not only which exemptions they used but also how many times each was invoked.

Financial reforms passed last year by Congress included an exemption to withhold from the public information concerning “surveillance, risk assessments or other regulator and oversight activities.”

The exemption became law, but it was later rescinded after it came under fire by transparency groups.

Our analysis also found that the most-often-invoked exemption is a law protecting information on tax returns filed with the IRS. From 2008 to 2009, federal agencies applied this statute nearly 3,000 times in FOIA denials.

The agency that invoked the most b(3) exemptions was the Department of Veteran Affairs, which from 2008 to 2009 received nearly 170,000 FOIA requests and invoked b(3)s more than 8,000 times—almost always for information relating to Veteran medical benefits or records.

The b(3) exemption used most widely—20 agencies applied it—was a law protecting losing contract bids.

Federal agencies are required to file annual reports about their FOIA activities, such as the number of requests they received, how many they denied and why they denied them. Agencies also must list which b(3) exemptions it used over the past year. Since 2008, reports must include the number of times each exemption was invoked.

“These should be debated and subject to scrutiny,” said McDermott, whose organization, openthegovernment.org, pushed for the disclosure requirement.

There may be legitimate reasons to withhold certain information, she said. “But blowing holes in the Freedom of Information Act is not the way to deal with it.”

View our interactive database of all the exemptions used in 2008-2009 and how they were used.

Barry Schmittou

March 14, 2011, 2:08 p.m.

No law including FOIA matters since the U.S. Government began protecting corporate criminal organizations !!

To see how the Obama administration is protecting crimes within crimes and has given three non prosecution agreements to a major campaign contributor in the last four years, please read the red font at http://www.obamaknowsdoctorscrimesendangerlives.blogspot.com

Please read the black font at that website to see quotes from numerous U.S. Judges’ who have written that doctors’ paid by this same campaign contributor are intentionally ignoring life threatening medical conditions including Multiple Sclerosis, brain lesions, and sphincter incontinence of one patient, cardiac conditions of many patients, a foot a patient broke in five places when she developed a severe medical problem after having a baby, and so much more !!

To see how identical organized crimes are being committed by multiple insurance companies in five different areas of insurance please go to http://www.5typesofdeadlyinsurancecompanycrimes.blogspot.com

At the website just mentioned please remember that bullet point (1) is in reference to the first website that’s linked in this comment.

Sincerely,
Barry Schmittou

The laws of the United States no longer apply except when it serves those of the elite and powerful.

Anyone who relies on laws to protect themselves is deluded.

You MAY or MAY NOT get justice, that’s the truth of the matter.

With each passing day our constitution and our laws are growing weaker because they are not enforced anymore.  The government comes up with clever agents like Homeland Security to get around the law.

The reason people came to this country, its my understanding, is that they were fleeing oppression and unfair taxation and they wanted freedom from a government that dominated each person alive.

The constitution seems to have worked fairly well FOR A WHILE but now its being eroded and no one is stopping it.  Why? Because the courts who have the ultimate authority are part of the problem.  The law doesn’t matter, its who you know and what kind of influence you can buy.

Our Supreme Court, in addition to giving open forum to Freddie Krueger Phelps, it ruled last year that torturing and killing animals in “Crush” videos is no longer illegal for entertainment purposes.

What does that say about us as a country if our King Solomon judges tell us that getting our kicks watching animal torture is an okay passtime NOT TO MENTION that people make money making these horrible films.

I do not like this country anymore if by country you mean the powers in charge.  Nor do I trust them, in no way should we trust them.

Best to know the truth.

In case people forget, it was none other than Bush, who stocked every agency, department, etc. with minions who toed the party line. Sleepers they are called. So, this explains to some degree why the dictates haven’t been carried out, you know, that the “O” said would give more daylight to the system?

Guess this is just another reason we need wikileaks.

This is very useful, particularly the database and link to FOIA reports.  Thanks.  I’ve been do-si-do-ing over FOIA requests with agencies from the FBI to the Marines to Homeland Security, where everything seems to end up eventually.  With very few exceptions, when I do get documents in response, they’re so heavily redacted that they’re useless.  The exemptions are usually b6 or b7c (privacy).  I’m beginning to think that “privacy” is a synonym for “embarrassing.”  My favorite was a 42-page report with all but a reprinted Washington Post story blacked out, whose title page featured the quotation, “We Don’t Know What We Don’t Know.”  It was attributed to Unknown.  Could it be that DHS has a sense of humor?

Re:  “Under another law, information about the location of “significant” caves has been withheld [3] by USDA and the U.S. Department of the Interior.”

Not to defend what I project are corporations and individuals using the might of United States diplomacy and the force of our military to enrich themselves (thus requiring great secrecy lest the American people finally wake up and go a’huntin’), but I actually understand the caves one.

There are some caves that could not handle the additional traffic their revelation to the public would bring; in particular, some with some outstandingly gorgeous and rare crystals growing in an environment that is dependent upon not just avoiding physical damage from humans but also upon unique humidity and temperature conditions which would be disrupted by additional human traffic.

Me, I don’t want to see several million years of the universe’s handiwork sacrificed in the name of openness.

And I would suggest that some other caves may serve within our defense infrastructure or as emergency civil shelters. 

Unless and until the world is a truly peaceful place (i.e., the subspecies of humans that find themselves compelled to inflict such as Fox upon America, radical Islam upon the Middle East, or communism upon the Chinese go extinct), I think it best such “caves” remain…

Secret.

Pointing fingers as to who is to blame is part of the problem.  Divide and conquer.  While we plebes are arguing about who to blame we are distracted from what “they” are doing.

It shouldn’t matter who did what as it relates to parties or to resolutions to the problem.

If George Bush did something treasonable then he should be brought to justice, just as Obama should. 

Right now, imo, Obama is the larger target because he still has the capacity to do harm which he has more than demonstrated he is capable of.

Why did the nation listened for months on end about the sordid details of Bill Clinton’s indiscretions and what the definition is of “sexual relations”?  Granted, he was out of line to say the least, but what he did in no way approaches the harm that is being done with Obama who has sold us out, down the river go we.  He apologizes to the United Nations and to heads of foreign countries who are not necessarily our friends.  Every day that he is in office socialism gets a stronger foothold.  And he does so arrogantly just as he arrogantly refuses to produce, as all of has had to do in order to get a driver’s license 5 years or so ago, a birth certificate, not a likeness or something in place of it but the actual document with a raised seal from the state in which it was issued.  No one of us should ever be held above any requirements that the “common people” must follow and adhere to.

The time for idle chit chat is over, why has no one initiated impeachment hearings against Obama.  i don’t know if he is faithful to his wife, nor do I care, what he has done transcends infidelity.  Clinton was deceitful about his indiscretions.  Obama is deceitful about far more than that.  He is deceitful when his appointees are breaking the law.  Eric Holder is not bending the law, he is breaking it into tiny little shards while he claims that white people have not “suffered enough” to deserve the protections of the constitution.  How arrogant is that, to appoint himself as the keeper and judge of who has or has not suffered enough to be defended by our laws.

Obama is the one stearing this ship currently. It’s headed far off-course.  Shouldn’t someone checkup on the captain?

As a former Government employee I can tell you that many times a FOIA request is denied, because the staff doesn’t want to find the information. If you make a stink about it, you will probably get the info you want.

Thank you for your point about keeping secret the location of some caves, ibsteve2u. The same is true for the locations of the nation’s tallest redwoods. Those are kept a strict secret, and for all of the same reasons—they’d be destroyed if people knew where they’re located. I oppose government secrecy, but there are some things that need to be kept secret, and the locations of some caves are definitely among them.

James A. Miller Jr.

March 14, 2011, 10:31 p.m.

The location of some archeological artifacts that as a practical matter, can’t be economically guarded, could be reasonable.  But even this can be abused if a bureaucrat’s hidden agenda motivation is to keep another qualified researcher from research, the controlling bureaucrat prefers to keep for himself alone.

Being a researcher, In May 2010 (  it’s mid March 2011 now ) I requested some information under the FOIA to the Dept of State but there is no way to know where my request stands. I call every month or two and they only say that they have it but they can’t tell me anything else,like what place in line I am at or how long I can expect to receive the information; it’s a black hole

Anne:  How many times does President Obama have to show his birth certificate?  How many times does the doctor that delivered him in Hawaii have to swear that he was witness to his birth?  How many times does it take before you get off that ridiculous rant….it’s gotten old and is totally ridiculous!!!  We have better things to be worried about than to continuously worry about something that has already been proven beyond a reasonable doubt!!

I asked for my FBI file, knowing damn well, they had one. I had been interviewed by two FBI agents following the 1968 Democratic National Convention street disorders. (I was working for the local NBC News station where my beat was “radical politics.”)

I was accompanied by two first class attorneys. The interview lasted one hour. During that time, one of the agents, responding to what I had just said, noted that yes, just across the street, were ...what ever. But my review of the facts correlated accurately with other information they had gathered.

I had also written for Ramparts Magazine and was one of the founding editor of the then-considered “radical” Chicago Journalism Review.

Fast forward 38 years and I file a FOIA request. They conclude there is no file. Now, how could that be? I was interviewed by two agents who had been charged with identifying Chicago cops who had rioted.

Now I have to chose between two possible answers: 1) the FBI destroyed the contents of my interview or 2) given that I had written as for “radical” publications, covered, and knew several “radicals” (Abbie and Jerry)  and had, as a journalist on the web, continued to chase the FBI for their hysterical-Hoover inspired hunt for home grown commies, the Department of Justice (sic) wasn’t going to give me ammunition which I’d turn against them.

James B Storer

March 15, 2011, 1:21 p.m.

Anne, I must reply to your first comment even though it is off subject (I prefer to stay on topic with the report).  The Supreme Court operates mostly without regard to common sense and with total disregard of the intent of our Constitution.  Its ongoing little rulings on animal cruelty, always based on Freedom of Speech, is animal cruelty by proxy.  The poor creature being tortured has no knowledge whatsoever of our first amendment and freedom of speech is not an acceptable defense for the bastards involved.  Our ancestors who attached the Bill of Rights surely did not expect our Supreme Court to be so callous as to empower it as the supreme legal authority permitting such barbaric atrocities.
    IBSteve 2u, your reasoning that information on “caves” is often withheld for good reason, and James Miller’s reply that that may be so, but his request for information might be for equally good reason, indicate that we must incorporate a “bridge” in the process to make things acceptable to both sides.
    James may feel that the withheld information may indicate the potential for corruption, or simply excluding James with no good reason.  The complete denial of the request really indicates that James’ suspicion is justified.  Perhaps an independent review panel can review requests that may seem problematical.  A mandatory explanation to the party requesting the information can incorporate the panel’s thoughts.  I do not know the solution, of course, but this matter of excess government secrecy bothers us all.  –Skartishu, Granby MO

James B Storer

March 18, 2011, 4:58 p.m.

The first part of my comment above, (15 Mar) contains a carelessly statement by me.  Of course, the Supreme Court does not act as authority to permit cruelty to animals, as my careless grammar indicates.  First Amendment defense for communicators, pro and con, concerning cruelty evident in the business of processing animals for food consumption is good, in my opinion.  This publicity tends eventually to result in steps moving to a more humane environment in an ongoing human endeavor.  However, giving so much verbiage to Freedom of Speech protection to those guilty of publicizing, by words or graphic art, deliberate cruelty to animals (or people) for enjoyment is detrimental to the advancement and well-being of our nation and the human condition.
    Freedom of Speech is simply not the initial practical issue in many of the cases, though judgment rests on that principle alone.  The granting of Freedom of Speech privilege to cruelty to animals internet freaks will only tend to draw more followers to their grisly fold.  There must be a better way.  —-Skartishu, Granby MO

@JBS… I am having a difficult time figuring out exactly what it is you are intending to say.  I get parts of it, I just can’t link it all together with where each piece is going.

If my comments, or some of them were off topic I apologize.  I tend to get super-focused on whatever issue is the most pressing on my mind at the time and right now due to the attempted overthrow of Prop. B in Missouri I confess that is on top in my mind.  Of course it is not on top of my personal family concerns, but outside those matters - puppy cruelty whether its in a puppy mill or at the hands of some $hit-for-Brains A-hole who thinks filming or watching or participating in cruelty to animals is a nifty thing to do is something I have a hard time separating from and it tends to creep into all areas of conversations I have whether in person or “cyber”.

Anyway, for the off-topic part I apologize, if it is so.  As to thinking about it, talking about it, wanting to keep people aware of the heinous activity of our dear beloved UN-SOLOMON-LIKE Supreme Court, I make no apologies. 

We must never turn a blind eye towards such barbaric and inhuman conduct.  The fact that its activity with the tacit or implied or outright approval/sanction of our government necessitates it having high-level importance because of the far-reaching aspects involved.

I am often viewed as judgmental, self-serving, domineering, busy-body, know-it-all, blah blah and many other things.  However I do no harm to anyone and if having an opinion about unacceptable imo human proclivities, dalliances, deviant life practices, etc. is the worst thing I ever do in my life I shall not be so bad off after all.  I can be my own worst critic but about these things, amazingly, I have no problem with myself at all.

Take me or leave me, whatever - I am what I am.

Having survived 6 decades on this earth and suffered various illnesses, accidents, unfortunate encounters with humans of the type kind best avoided if precognizance and common sense and a level head were available, the worries and cares and the joy involved in being a parent in today’s nutcase world, a devoted pet owner,  and all the other blah blah that makes up life——whatcha see is whatcha get.

Waldo Jaquith and James Miller make an excellent point about secreting the locations of vulnerable sites (caves, redwoods, archeological sites)—
I am a member of the World Commission on Protected Areas and stronglt support their comments…  But, I’d like to make a corollary comment.  There is a game—played frequently in the press—of finding some expenditure of Federal monies that—to the common person seems absurd…  It’s an easy way to grab attention and to evoke public repugnance at “yet another instance of government intransigence or profligacy…  The calling outing of “caves” in your article is an example—in the last election, the Republican Party made a big deal about some funding that went to the California Academy of Sciences for ant research…  While these “disclosures may make a splash—they actually are often (not always) an index of the scientific (or practical! )illiteracy of the journalist and/or of the average citizen.

As suggested in the previous comments, caves are very deserving of protection and seclusion—1) they often represent absolutely unique ecosystems in which numerous species have evolved and adapted in ways that are of great scientific interest, 2) caves are often the site of hibernation—certainly for bats (heavily threatened in many parts of the country by disease, 3) caves are a relatively rare part of the landscape and w/o protection and management have often been badly vandalized.

Not a joke—and not a good way to dramatize an assertion about FOIA

And BTW an otherwise excellent article on FOIA!  Thanks…