Today, the DC Circuit court reissued an opinion in Public Citizen v. OMB that rejected the agency’s use of exemptions 2 and 5 of the Freedom of Information Act (FOIA).  OMB had attempted to withhold information from Public Citizen that detailed which agencies submit materials to Congress without clearance by OMB.  This court case adds an important legal support to the FOIA practice of discretionary disclosure.

Exemption 2 of the FOIA allows agencies to withhold information concerning internal personnel rules and practices while exemption 5 applies to inter- and intra-agency materials that are pre-decisional and deliberative.  However, the DC Circuit found that the records have nothing to do with OMB’s internal practices.  Further, for exemption 5 to apply the records must be both pre-decisional and deliberative which do not apply in this instance.  Therefore, neither exemption can apply to these records in full.

This case is an important one in that it limits the way these specific FOIA exemptions can be used by agencies to withhold information from the public.  Government openness advocates have long argued that these exemptions are applied too broadly by agencies. 

Although the Obama administration has attempted to better define the applicable uses of these exemptions, advocates have not seen a decline in their actual assertions.  The Office of Information Policy at the Justice Department released a memorandum last May that instructed agencies to exercise greater discretion to release information under both of these exemptions if there would be no reasonably foreseeable harm from release.  Far too often, agencies will use exemption 5 to withhold records in their entirety when only part of the information in an entire document might actually fall under that exemption.  Further, agencies usually take vast liberties to apply exemption 2 broadly and withhold information that could inform the public in regard to activities of the government.  Hopefully this case will help push agencies to better comply with executive branch FOIA policy.