Congress Urged to Reform Freedom of Information Act

The Center for Biological Diversity and 41 other public-interest and conservation groups urged Congress today to take immediate action to correct federal agencies' refusal to comply with the Freedom of Information Act.

Today's letter to the House Oversight and Senate Judiciary committees highlights agencies' continued abuse and expansion of the Act's "deliberative process" privilege to hide information about human and environmental health from the public.

"Secretive agencies are blocking people from seeing public records that are crucial to finding out whether our government is doing its best to protect our health and environment," said Ann K. Brown, open government coordinator at the Center. "The Freedom of Information Act was passed to give the public the right to know what our government's up to, but without meaningful access to agencies' decision-making, that right is worthless."

Although the law allows federal agencies to invoke any of nine exemptions to withhold sensitive information from disclosure, officials notoriously exploit and overuse FOIA Exemption Five's deliberate process privilege -- also known as the "withhold it because you want to" exemption--to conceal science and bury records that may embarrass agency staff.

The groups called for legislation that limits agencies' use of that privilege to policy- or rulemaking decisions that are in their final phase. Their letter also asks Congress to require officials to prove that disclosure of specific information will result in foreseeable harm to an agency's ability to make decisions.

In today's letter, the groups cited two memoranda from the U.S. Department of Justice and U.S. Fish and Wildlife Service issuing policies that direct the agencies' staff to withhold public records deemed "deliberative," including records that would reveal whether agency actions that affect human health and the environment are not grounded in science or law, but rather influenced by politics and special interests. The memos instruct staff to withhold more records under the deliberative process privilege in response to FOIA requests about agency decisions on endangered species.

The letter also highlights how the Supreme Court's recent holding in U.S. Fish & Wildlife Service v. Sierra Club will further sanction agency abuse of the privilege to withhold scientific documents that analyze how government actions affect endangered species.

"NOAA serves the people. Its policies must reflect that," said Eric Bilsky, assistant general counsel at Oceana. "NOAA should share, not hide, information crucial to understanding its operations and safeguarding our ocean environment."

"Agency FOIA policies affect every aspect of the work we do to protect the climate, water and air quality, national parks, forests and oceans," said Brown. "It's essential that the public see a complete snapshot of government decision-making to know whether agencies are basing those decisions on the best science."