On Thursday, March 31, a group of advocates for open and accountable government sent a letter to the Robert F. Bauer, Counsel to the President, requesting the Administration set up a process to review and coordinate agency proposals intended to protect information that was formerly withheld from the public under Exemption 2 of the Freedom of Information Act (FOIA). The letter also asks that the Department of Justice serve as a coordinating body within the Administration and that congressional committees with jurisdiction over FOIA be notified and consulted about all proposals that would require legislation.
Exemption 2 of FOIA pertains to "records relating to employee relations and human resources issues." In a case called Milner v. Department of the Navy, the Supreme Court recently ruled the government was interpreting Exemption 2 of FOIA in an overly broad fashion to withhold all “predominantly internal” materials. As a result of this ruling, it appears some materials previously withheld by government agencies may now be subject to disclosure.
We understand agencies are already approaching various congressional committees with proposals to add new protections for information that may now be subject to disclosure. Most of these proposals will not directly amend FOIA. Rather, they will be small provisions, usually tucked into much larger bills, that exempt a certain type of information from public disclosure. Once the provision becomes law, the information is protected under Exemption 3 of FOIA – material protected by other statute. Because the FOIA itself is not actually amended, Congressional committees with expertise in public disclosure will not necessarily be consulted. And, because such provisions are usually small parts of big bills, the public generally has no knowledge of these new restrictions on access to information until they become law.
Setting up a coordinated process to review and limit proposals to address agency concerns about protecting information after Milner will help ensure that any new exemptions from public disclosure are not overly-broad or unnecessary. We hope the Administration will act quickly on our proposal.