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Editorial: Freedom of Information Act is broken

We need to fix the federal Freedom of Information Act.

Or more specifically, Congress needs to fix it.

FOIA is a critical law for making sure the public has the ability to get copies of records the government might not want it to see.

For more than four decades, reporters and others have used the FOIA to uncover evidence of government waste, fraud, abuse and illegality.

And the act has been used to better understand how government policies are shaped — for good or ill, according to Amy Bennett, assistant director of OpenTheGov

These are important times in the struggle for open government, considering the massive collection of information from cell phones and the Internet being done by U.S. spy agencies.

The dangers of excessive and unnecessary secrecy loom large and overshadow this year’s Sunshine Week, which is dedicated to open government.

As Bennet points out in an op-ed published in The Hill newspaper, the Freedom of Information Act was created to help strike a balance between protecting the government’s legitimate interests and making sure that an informed public knows what is being done in its name.

But she says that delicate balance has swung too far in favor of the government, especially through the overuse of the “deliberate process privilege.” And it’s past time for Congress to provide a counterweight on the side of the public’s right to know by putting tight boundaries around its use.

This privilege, covered by FOIA’s Exemption 5, is intended in large part to allow agency officials the freedom to share ideas and advice off-the-record. Bennet says the government’s reliance on the privilege is much more extensive, however.

Over time, the government has expanded the scope of material they consider subject to Exemption 5 to the point that it covers practically anything that is not a final version of a document. Among many people who frequently file FOIA requests, Exemption 5 is referred to as the government’s “We don’t want to give it to you” exemption.

In one particularly egregious example, Bennet says, the government has been relying on Exemption 5 to deny the public access to copies of opinions by the Department of Justice’s Office of Legal Counsel.

Although the government argues that these memos are simply advice from the president’s lawyers, the reality is that these memos include the government’s reading of what agencies are allowed to do under statute.

And, Bennet argues, once OLC opinions are adopted, they have the effect of law.

In recent years, the government has used Exemption 5 to hide the legal basis of controversial government practices, including the torture of detainees, the use of drones to kill American citizens abroad, and the Federal Bureau of Investigation’s ability to easily access Americans’ telephone records.

Congress needs to act to return FOIA to its original mission: Keeping government honest and open.


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