Leahy-Cornyn Bipartisan FOIA Reform Doesn’t Go Far Enough; Congress Should Exempt EPA from FOIA b(5)

A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives. 

James Madison

Regulating is an inherently legislative exercise, in that it entails the promulgation of rules that control private behavior. Indeed, most policy now is rendered via regulation, thanks to the geometric growth of the executive branch during the post-war years.*

However, unlike legislators in congress, executive agency bureaucrats are unaccountable to the electorate. As a result, there’s a danger that executive agencies are effectuating policy absent a popular mandate and away from the public eye.

In theory, the hazard of unaccountable policy-making could be mitigated largely by the 1966 Freedom of Information Act, which enables any person to request, without explanation or justification, access to existing, identifiable, and unpublished executive branch agency records.

b(5), e.g.

In practice, however, federal agencies routinely circumvent information requests, and the censors’ primary tool for achieving opacity is a statutory exemption from disclosing “deliberative process.” Colloquially, it’s known as the “b(5)” exemption, after its statutory provision (5 U.S.C. §552(b)(5)); among information seekers, it’s known as the “withhold it because you want to” exemption.

To be precise, the b(5) exemption covers any “intra-agency” or “inter agency” pre-decisional communications. Its general purpose is to prevent injury to the quality of agency decisions, by preventing agencies from being forced to “operate in a fishbowl.” Whatever its underlying merits, the broad scope of b(5) lends itself to abuse by agencies seeking to hide errors and failures.

According to the Associated Press, the Obama administration’s use of this “deliberative process” exemption set all-time records in 2012 and 2013. Nate Jones, the FOIA coordinator at the National Security Archive and ace blogger, has compiled a list of the Obama’s administration’s most dubious uses, including:

• Censoring the names of victims in the ongoing VA scandal
• Nazi protection
• Refusing to divulge information about the Bay of Pigs fiasco

The continued abuse of the b(5) exemption has engendered bipartisan backlash in the Congress. In late June, Chairman of the Senate Judiciary Committee Patrick Leahy (D., Vt.) and Ranking Member John Cornyn (R., Texas) introduced a bill to reform the b(5) exemption. Pursuant to their FOIA Improvement Act of 2014, agencies (and courts) now must balance the benefit to the public interest against the benefit of government employee confidentiality before withholding documents. For more on the bill, see this report by Washington Free Beacon’s CJ  Ciamarella (who, I might add, edits an edifying weekly FOIA newsletter).

Sens. Leahy & Cornyn’s effort is a laudable start, but I argue it doesn’t go far enough. If I had my druthers, Congress would exempt entire agencies from the b(5) exemption, starting with the EPA.

In fact, EPA relies on the b(5) far more frequently than other statutory exemptions, as is demonstrated by the chart below. I know this first hand: My CEI colleague Chris Horner frequently files FOIAs with EPA and b(5) abuse is readily evident in his productions. For example, EPA repeatedly sought exemption for agency discussions about negative media—a topic that is plainly outside the scope of b(5), as it entails no deliberation on a regulatory determination.

I readily accept the need for secrecy in matters of war and foreign relations in general. Also, I allow that divisive matters of great import–like Constitution crafting–merit privacy, in order to further frankness. And, of course, I believe that sensitive information, private or commercial, should remain beyond the reach of FOIA. Yet I fail to see why environmental policy deliberations, which are materially different than any of the scenarios I describe immediately above, warrant any protections from open records laws.

For starters, the deliberative process exemption is based on common-law principles that long precede the modern regulatory state. Thus, the Governments together with which this principle evolved was far different from contemporary governments; its purposes were much narrower, largely limited to war and order. It’s not obvious why EPA should benefit from a privilege intended for a king’s court.

More fundamentally, environmental policy-making doesn’t comport with the practical justification for deliberative process exemption. In Jordan v. United States Dept of Justice (1978), the D.C. Circuit Court of Appeals explained the rationale behind the deliberative process exemption: it “protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions.”

I don’t see this as being applicable at the EPA, and perhaps other non-national security agencies. If the ends are indeed environmental improvement, and the means are legislative rule-makings, then I can’t think of an instance whereby public scrutiny would prove deleterious. Simply enough, the people have a right to know what is said by taxpayer-funded officials in the pursuit of a public good like environmental improvement.

Now consider the policy benefits. Sunshine disinfects. Bereft of b(5), EPA would become immune to regulatory capture by special interests.

Openness, as engendered by exempting EPA (and perhaps other agencies) from b(5), would also help legitimate executive branch policy-making. As I noted at the outset, the growth of the regulatory state presents a real accountability problem, in that regulators aren’t elected, but they are increasingly rendering policy. Greater transparency could only engage voters.

*Under the division of responsibilities as established by the Constitution, lawmaking is the exclusive preserve of Congress. And yet, executive agency regulations are a legislative exercise, in that they are rules which control private behavior. This seeming incongruity is rendered logical by the act of delegation, whereby Congress grants its policy-making authority to executive agencies.