Let’s be clear – a friendly reminder

Recently, as the 111th Congress concluded its business before the 2010 midterm elections, Congresswoman Loretta Sanchez (D-CA) introduced a bill, H.R. 6266, which, among other things, proposes to exempt certain law-enforcement guidelines from disclosure under the federal FOIA.  But it doesn’t even mention FOIA.

Proposing a FOIA exemption is nothing new. Congress has had the ability to craft exemptions to FOIA’s mandate since the passage of that law.  Laws allowing such exemptions from FOIA’s mandates of disclosure are called “b(3) exemptions” for the subsection of FOIA that enshrines them into law (5 U.S.C. 552(b)(3)).

A decade’s worth of annual agency FOIA reports have helped SGI learn how many b(3) exemptions have been used by agencies: Over 260, and counting, since 1998. Since our finding, Congress acknowledged that it should give transparency a fighting chance by requiring that legislation proposing b(3) exemptions to FOIA clearly cite that part of the FOIA law. The OPEN FOIA Act of 2009 became law last fall (as part of the Department of Homeland Security Appropriations Act, 2010).

Since then, we have found only a few bills that violate the new rules, but Rep. Sanchez’s proposal stands out:

“(f) DISCLOSURE OF INVESTIGATIVE TECHNIQUES.—Internal operating guidelines created by the Department of Homeland Security, Department of State, or the Department of Justice reflecting internal operations with respect to the international travel notification requirements of this subchapter, including methods for investigation and factors for evaluation of sex offenders, shall not be disclosed.” (Sec. 112a)

Let us reiterate a few key points:

First, any legislation that seeks to create a b(3) exemption should correctly cite FOIA. This one doesn’t even mention FOIA at all.

Second, much of the information that agencies want to protect from disclosure is already protected from disclosure by other FOIA exemptions. In this case, the information described in the new bill would almost certainly be eligible to be withheld under Exemptions 2 and 7(e). The former exempts agency documentation of internal procedures; the latter exempts agency techniques and procedures when disclosure of such information would show people how to circumvent the law.

Third, each body of Congress has an office of legislative counsel (House; Senate), which provides legislative drafting assistance to that body’s members and their staff. We don’t expect that every Hill staffer will know all the requirements of FOIA (that’d be nice, but we’re realistic), but by sending proposed legislation through the office of legislative counsel, staff can make sure they are covering all their bases.

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