With Sunshine Week just around the corner, we wanted to count down the days to our favorite time of year with a closer look at what’s going on behind the black bars: the nine federal FOIA exemptions. Today, everyone’s least favorite exemption: b(5), the “Withhold It Because You Want To” exemption.
Exemption Name: b(5)
AKA : “The Withhold It Because You Want To Exemption”
Common Reactions: “More Like b(s) exemption, amirite?” / “Hey Nate, they did it again!”
What it says: “Inter-agency or intra-agency memorandums or letters that would not be available by law to a party.”
What that means: The Justice Department’s own b(5) guideline concedes that b(5) has rather “opaque language” that in theory should apply to the deliberative process, but in practice ends up being a bit more like this:
b(5) is a four-letter word in the FOIA community - that “Withhold It Because You Want To” exemption line comes from an article from the National Security Archive’s Nate Jones that sums up the rampant use and abuse of b(5).
Who uses it? That “opaque language” doesn’t stop the DOJ from applying b(5) liberally, and its components are among the exemptions worst abusers.
Silliest example of its use: The Federal Electoral Commission once cited b(5) to justify withholding its guidelines for the use of b(5) - only to back down when it turned out it had already posted said guidelines on its website.
And, of course, there’s this gem.
What you can do about it: Use that arbitrariness to your advantage. Ask the officer to explain why b(5) applies exactly, and then sit back and enjoy the logical contortion act.
More specifically, the Reporters Committee for the Freedom of the Press suggests:
The U.S. Supreme Court has ruled that to qualify for Exemption 5 protections, a document must satisfy two conditions. First, “its source must be a Government agency.” Second, the document “must fall within the ambit of a privilege against discovery” recognized under Exemption 5. When possible, you should raise challenges on both grounds.
Any other resources? FOIA Wiki has some great guidance, and if you’re trying to get anything historical (25 years or older) but an agency’s using b(5) to withhold it, let the NSArchive know. This is their jam.
Image via Obama White House Archives