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.
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Act, which enables any person to request, without explanation or justification, access to existing, identifiable, and unpublished executive branch agency records.
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. [click to continue…]