Posts Tagged ‘FOIA exemptions’

FOI Daily Dose: Reporters Committee challenges decision hiding records between Army and third-party contractor

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief earlier this month asking the U.S. Supreme Court to review an appeals court decision about Exemption 5 of the federal Freedom of Information Act, a news release said.

The case, American Management Services LLC, d/b/a Pinnacle v. Department of the Army, is a civil suit between two private real estate companies, Pinnacle and Clark, that worked on a joint project managing private family housing on two Army bases, according to the American Bar Association. Clark learned that Pinnacle engaged in fraud, and it presented a binder of evidence to the Army, so the Army granted Clark permission to sue Pinnacle.

When Pinnacle found out, it asked the Army for the binder and other communications with Clark, but the Army refused to provide them. Pinnacle filed a FOIA request for the documents and received 55 of them, but the Army refused to disclose more than 800 additional pages based on FOIA Exemptions 4 and 5.

The U.S. Court of Appeals in Richmond, Va., ruled the Army’s refusal to disclose its communications with Clark was warranted under Exemption 5 because Clark (the third-party contractor) shares a “common interest” with the government.

The Justice Department calls Exemption 5 “quite broad” and says it “protects ‘inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.’”

It also says Exemption 5 has a work-product privilege for information shared between a government agency and “a party holding common interest with the agency.”

But RCFP is questioning the court’s justification on grounds that Exemption 5 typically only shields inter- or intra-agency records and communications—not records between the government and a third-party.

In a July 3 news release announcing their decision to come alongside Pinnacle, Bruce D. Brown, executive director of RCFP, said:  “Congress was very clear in its intent to limit Exemption 5 to internal government records that could be considered privileged in litigation. Allowing the government to broadly withhold records documenting its interactions with third parties creates a dangerous vehicle for government contractors to hide information from the public. In addition to being in conflict with both legislative and judicial precedent, it would become more difficult for the press and, by extension the public, to engage in effective oversight of contractors’ operations.”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at or on Twitter: @KaraHackett.

FOI Update: DOJ hasn’t questioned a FOIA exemption in four years, didn’t respond for four months

Four seems to be the magic number for the Department of Justice.

The department told congressional investigators on June 10 it hasn’t questioned an agency’s decision to withhold information under a Freedom of Information Act (FOIA) exemption for four years, and when confronted about its own outdated FOIA regulations, it didn’t respond for four months, according to the Washington Free Beacon.

A National Security Archive government-wide audit in December revealed that 56 federal agencies failed to update their FOIA regulations after Attorney General Eric Holder issued a memorandum requesting an update in 2009.

Oversight Chairman Darrell Issa (R-Calif.) and Rep. Elijah Cummings (D-Md.) even noted the DOJ’s own regulations have not been updated since 2003.

But when Issa and Cummings called this to the DOJ’s attention in a February letter, the DOJ did not respond until June.

Principal deputy assistant attorney general Peter Kadzik wrote a letter to the House Committee on Oversight and Government Reform on June 10, saying the DOJ has not determined any FOIA exemptions improper since the Obama administration’s first year in office.

But the Free Beacon notes that Kadzik’s letter did not acknowledge Issa and Cumming’s findings that in 2011 alone, the DOJ fully denied 30,000 FOIA requests and partially denied another 171,000 requests. It also used exemption 5 to deny more FOIA requests even though the Justice Department itself notes that this exemption is riddled with “somewhat opaque language.”

An August 2012 Washington Post analysis showed the number of FOIA requests fully denied due to exemptions rose more than 10 percent last year, from 22,834 to 25,636. But free information isn’t the only thing at stake when the government issues exemptions, tax payers dollars are often dished out to cover costly legal fees when news organizations and other information requesters file FOIA lawsuits against the federal government.

The Free Beacon reports that the number of FOIA lawsuits has “increased dramatically under the Obama administration,” even compared to his tight-lipped predecessor.

The Transactional Records Access Clearinghouse (TRAC) compared the last two years of President George W. Bush’s second term to the last two years of President Obama’s first term and found that FOIA lawsuits increased by 28 percent. The DOJ alone faced 50 percent more FOIA lawsuits, according to TRAC reports.

But in his letter to Issa and Cummings, Kadzik defended federal agencies, saying they have taken  “concrete steps to improve their FOIA administration.” The Free Beacon notes that the DOJ plans to publish its new FOIA guidelines later this year.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at or on Twitter: @KaraHackett. – See more at


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