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A FOIA Flaw and the Obama Administration's Failure to Fix It

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On May 20, 2014, the Court of Appeals for the District of Columbia Circuit upheld the CIA's refusal to turn over under the Freedom of Information Act (FOIA), part five, of the draft history of the flawed 1961 Bay of Pigs invasion of Cuba. National Security Archive v. CIA, No.12-5201. I do not write to quarrel with the decision, although I think that the dissent of Judge Judith Rogers is very powerful. Rather, the decision points up both a serious flaw in the law and the blatant failure of the Obama administration to live up to its promise of an open government.

Here are the facts. In 1973, the CIA decided to do an official history of the attempted Bay of Pigs invasion 12 years early. There were five chapters, and eventually four of them were published. The fifth was a draft that was never completed, and it is that draft that was requested under FOIA in 2005 by the National Security Archive, a private nonprofit that is located here at George Washington University. Under what is known as exemption five under FOIA, drafts of reports are generally able to be withheld as deliberative or pre-decisional documents. It was on this basis alone that the CIA said no, and the Court said okay. The Court did not rely on the presence of classified material in the draft, or that producing the document would reveal intelligence sources and methods. In short, the Court allowed the CIA to say no because the law allowed it to do so, and not because of anything in the document that was at all sensitive or harmful to the national interest.

The theory behind exemption five is that federal employees should be encouraged to be candid in giving advice to their superiors, which includes doing draft histories. For that reason, making drafts public might cause employees to be unduly cautious in their work for fear that a draft might be subject to unwarranted criticism if made public. Whatever one thinks of that overall rationale, it surely diminishes over time, in this case 40 years since the writing was done and over 50 since the events took place. Unfortunately, exemption five has been interpreted to be open-ended: once a draft, always a draft, and hence not disclosable.

The most bizarre aspect of this perpetual exemption is that the same issue arises with presidential papers, and for them, exemption five lasts only 10 years after the president leaves office. That rule applies not just to draft histories like the one at issue here, but to all internal White House memos, even those involving personnel matters and other highly sensitive subjects. If those who work for the president are not chilled by the prospect that their memos to him or other high White House officials will be made public in as little as 10 years (but no more than 18), it is hard to see why government workers in far less significant positions, working on much more mundane matters, will pull their punches because of a fear that what they write may someday become public. Indeed, in this very case, if the CIA had sent a copy of the draft to the National Security Council, which works for the president, that very document would have to be made public now, yet the CIA was permitted to say no to a FOIA request for the same draft. There is simply no sensible basis for keeping draft histories and similar documents secret forever. Congress needs to step in and fix this flaw by setting a sunset of no more than 10 years on withholding under exemption five.

But the real culprit in this case is the Obama administration. Exemption five is a permissive withholding law, unlike those that forbid release of our tax returns, personal medical information, or a business's trade secrets. Thus, the CIA could have -- and should have -- released this draft history when it was requested nine years ago, especially given the lack of any substantive reason for keeping it secret. What makes this withholding so much worse is that the lawsuit was not filed until 2011, two years after President Obama purported to begin a new era of openness in government. The president could have simply ordered the CIA to release the history, or his Attorney General could simply have refused to defend the agency's denial. But they did neither. Rather, the administration insisted that the CIA be allowed to withhold the document without even attempting to show any specific harm from its release.

The Obama administration surely has the right to rely on FOIA exemptions in the law. What it does not have the right to do is to proclaim that it is opposed to government secrecy, while using every FOIA exemption available to prevent citizens from learning what their government has been doing.