Kyle Singhal ·
84 Geo. Wash. L. Rev. 1388 ·
On June 30, 2016, President Barack Obama signed into law the FOIA Improvement Act of 2016, which made some headway towards increasing agency compliance and efficiency with Freedom of Information Act (“FOIA”) requests. The Act requires, among other things, the creation of a consolidated online FOIA request portal and the online publication of records and documents that have been requested three or more times. But the Act made only a minor incursion into the broad-sweeping and indefinite exemption from disclosure under FOIA—known as Exemption 5—that exists for federal “inter-agency” and “intra-agency” records. This Essay argues that courts have interpreted Exemption 5—in a manner contrary to its plain text— to protect not only records that are absolutely privileged but even those that are subject to a qualified privilege. Courts have also expanded Exemption 5 to protect documents that are not actually “inter-agency” or “intra-agency” records at all, such as memoranda from outside consultants to agencies. The result has been the general failure of agencies to live up to FOIA’s original promise of “open government.” This Essay proposes reform in the shape of a need requirement: in order for an agency to withhold documents under Exemption 5 for more than twelve years from their creation, the agency head would have to issue a written determination that the agency’s need for nondisclosure outweighs the public interest in disclosure. Although the 2016 Act takes a step in this direction by imposing a presumptive twenty-five-year expiration date for one of the several Exemption 5 privileges, this Essay argues that meaningful reform requires imposing a shorter (such as a twelve-year) period, and requires doing so across the board rather than only to one category of privileged records.
Read the Full Essay Here.
