Restoring freedom to information in the Freedom of Information Act

Over time federal agencies have flipped the Freedom of Information Act (FOIA) on its head. Congress clearly intended the FOIA to be a tool for the public to pry information out of federal agencies. In recent years, however, agencies have blatantly abused opaque language in the law to keep records that might be embarrassing out of the public’s hands forever.

One of the clearest examples of this problem has been playing itself out in court rooms over the last few years as the Central Intelligence Agency (CIA) has successfully argued against the release of a 30-year-old “draft” volume of the official history of the 1961 Bay of Pigs Disaster. There are few records in the federal government that are seen to merit such secrecy. This draft CIA history is afforded stronger protections than the President’s records, or even classified national security information. Members of the public are able to access similar records generated by the White House as early as twelve years after the President leaves office. Even most classified national security information is automatically declassified after 25 years. Yet, the CIA continues to insist that releasing a draft volume of a history of events that occurred more than 50 years ago, and are already generally understood by the public, must be kept secret.

How is this possible? The record can continue to be withheld because it fits under the rubric of the FOIA’s exemption for “inter- and intra-agency records.” While this exemption was originally intended in part to allow agency officials to give candid advice before an agency has made an official decision, agencies have stretched its use to cover practically anything that is not a “final” version of a document. As long as a record meets the technical definition of an “inter- or intra-agency record,” there is nothing the public — or courts — can do to make an agency release it. Continue>>>