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FOIA Requests Increasingly Denied for Privacy, Not Security, Grounds

Federal agencies are increasingly using claims of privacy when they deny requests under the Freedom of Information Act. That trend continued last year, even in the wake of the Sept. 11, 2001, attacks and the subsequent war in Afghanistan, according to a study done for the IRE National Conference.

The study of FOIA annual reports from the 13 Cabinet-level departments in existence as of Sept. 30, 2002, showed that nearly two in three denials over the past five years were based at least partly on exemptions relating to privacy.

For fiscal 2002, which ended Sept. 30, the rate was nearly four in five; in fiscal 1998, only four in 10 denials were based in whole or in part on privacy claims.

Meanwhile, national security claims were asserted in only about 1 percent of all denials of access to federal documents and records.

The federal Freedom of Information Act, passed in 1966 and amended in 1974 to include the first federal Privacy Act, presumes that federal records will generally be available to the public. But Congress gave agencies nine broad exemptions they could use to withhold records from the public, including the press.

Among the exemptions are two that relate directly to privacy concerns: One protects "personnel and medical files and similar files" and another permits the withholding of law enforcement information which "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

Many reporters and freedom of information experts believe that federal officials, knowing the public has strong feelings about protecting what it considers to be private information, rely too heavily on the privacy exemptions when they deny access to records.

“As important as privacy is in the information age, it is being misused all to often to cloak public records that should be open,” said Robert O’Harrow, who covers information technology for The Washington Post and who has written extensively about privacy issues.

For example, even privacy advocates raised questions when Attorney General John Ashcroft refused to release the names of persons the federal government detained after the Sept. 11 attacks.

The Bush administration has not issued a directive, nor has there been a change in policy to account for the growing number of privacy-based denials, said Mark Corallo, a Justice Department spokesman. The department is charged with overseeing administration of the FOIA for all federal agencies.

Corallo said a Justice Department FOIA directive prepared before the Sept. 11 attacks instructed employees to be more careful not to disclose information that could threaten national security. He said the drop in the use of national security exemptions could be because reporters and others have stopped asking for material potentially sensitive to national security after years of seeing those requests denied.

He also said that matters sensitive to national security could be withheld for privacy reasons if those concerns were also present, without the national-security exemption being listed in official government, even though the reports are supposed to include each exemption cited when an FOIA request is denied.

The Justice Department, which includes the FBI and other law enforcement agencies, is by far the biggest user of the privacy exemption, according to the annual reports. Not surprisingly, the Defense Department cites national security concerns most frequently.

But even at the Pentagon, more denials are based on privacy exemptions than on national security.

Access advocates suggest that government agencies are increasingly using privacy provisions to hide information they don’t want released, said David Sobel, general counsel for the Electronic Privacy Information Center.

For example, he said that U.S. officials “hid behind the right to privacy” when they refused to disclose the identities of prisoners at Camp X-Ray at Guantanamo Bay, Cuba. EPIC has joined several other organizations trying to gain access to those records. Sobel said officials are trampling on prisoners’ other rights in the name of protecting their privacy.

“I anticipated that there might also be a national security argument made [in that case], but the government did not make that claim,” said Sobel, who has studied FOIA requests for 20 years.

The overuse of privacy exemptions could ultimately weaken legitimate claims to privacy in the future, said Sean Moulton, a senior policy analyst with OMB Watch.

“When you let false claims stand, in the end it may end up weakening your right to privacy,” he said.

Sobel said that national security concerns are still keeping information away from the public. The number of documents being classified for reasons of national security -- whether they are requested or not -- is on the rise, he said.