Government keeps a lot of secrets from you.
Like the fact that former Charlotte Mayor Patrick Cannon took bribes to help a strip club owner when a light-rail line was slated to run through his property.
Like to what extent the federal government encouraged Bank of America to buy Countrywide Financial, a deal that helped fuel more than $50 billion in mortgage losses for the bank.
Like the fact that medical examiners in North Carolina rarely go to death scenes and sometimes don’t even see the body before ruling on the cause of death.
These and countless other stories came out because of state and federal Freedom of Information laws. Those laws require federal, state and local governments to provide documents to the public unless they are protected by certain exemptions.
The federal law has nine exemptions, most of them quite sensible. But one of them, known as Exemption 5, is increasingly being abused by government officials who don’t want certain public information revealed. A bipartisan U.S. Senate bill known as the FOIA Improvement Act would curtail that practice and make other improvements. Congress should pass it at once.
Exemption 5 sounds pretty technical. Among the government documents that can be kept secret, it says, are “inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency.”
Numerous court cases and reams of materials dig into what this means. But increasingly, the government is using it to withhold anything that it can claim is still in draft form. If the government claims the document is “deliberative,” it can keep it secret through Exemption 5, and the courts can do little about it.
The opportunity for abuse is obvious. If you’re an executive branch employee and you don’t want something public, just claim that it’s still a draft.
The bill from Sen. Patrick Leahy, D-Vt., and Sen. John Cornyn, R-Texas, would clarify the limits on this exemption and let courts decide whether the public’s interest in the information outweighs the desire to keep it private.
“I’m concerned the growing trend toward relying upon FOIA exemptions to withhold large swaths of government information is hindering the public’s right to know,” Leahy told the Associated Press.
The FOIA Improvement Act also would also put more government documents into electronic form, and block Exemption 5 from applying to anything over 25 years old. And it would codify President Obama’s demand that requests be treated with the initial presumption that records are public. (Obama’s declaration has been a joke; his administration denies access more than ever before.)
“Democracies die behind closed doors,” federal judge Damon J. Keith once wrote. The FOIA Improvement Act is one small way to help keep ours alive.