Update 11/20/05
Update Nov. 20, 2005
When Exemptions Become the Rule. That’s the headline on our new study of FOIA exemptions, attached. It shows that there has been a marked increase in the withholding of information by the current administration, primarily using the three exemptions recommended in the Ashcroft and Card memos. We began looking at the exemptions because of questions raised during continuing conversations with Hill staffers on the OPEN Government Act, and because of the growing concern use of the exemptions as part of the growing pseudo-classification of sensitive but unclassified information. The analysis is the work of Lacey Phillabaum, a freelance reporter who is working part-time doing research on access issues.
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On the subject of sensitive but unclassified information, I’ve also attached comments I plan to send to three agencies – Defense, NASA and General Services Administration – that have proposed a new definition of SBU that I mentioned a memo or two back. The definition is incredibly overbroad and can only result in the wrongful withholding of a great deal of information that could and should be made public. Please me know by Monday, Nov. 28 if your organization would like to sign on.
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About the time the CIA leak investigation heated up, I happened to be seated across a dinner table from a federal prosecutor. “Do you realize,” he challenged, “how much trouble you guys (journalists) are in?” He went on to suggest a deep hostility toward the media on the bench. I thought about that again in reading the decision in the law suit brought against FEMA by three Florida newspapers. The judge listed five reasons why the privacy interests of those who file for hurricane relief outweighed the public interest in whether there is waste and corruption:
“Release of the names and addresses of those claiming government benefits will enable others to link the great deal of highly personal information already disclosed by FEMA to particular individuals… Information includes descriptions and quantities of items replaced, SBA status, water level, cause of damage, insurance status, personal property description, real property damage description, and damage level.
“Second, public embarrassment or stigma is a factor to be considered. … While there is no inherent embarrassment or stigma in being the victim of a natural disaster, the same cannot necessarily be said about being the recipient of individual government assistance.
“Third, release of a list of the names and addresses of over 600,000 disaster benefits claimants and 33,000 flood insurance claimants creates a reasonable danger of identity theft, not to mention actual theft.
“Fourth … The intent to interview such individuals magnifies the importance
of the personal privacy interest at stake. Release of the names and addresses makes the individuals the target of unsolicited and perhaps unwanted contact; those who wish to be interviewed can certainly volunteer by contacting the media.
“Fifth, the names and addresses requested constitute a valuable source of information which is not available in another public source. … The legal requirement that other persons, such as commercial advertisers or solicitors, must be given the same access to FOIA information as the plaintiff newspapers, increases the individual privacy interest.
I think the message is that we cannot forget the courts in our continuing efforts to raise awareness about the critical relationship between openness and accountability.
Pete Weitzel
