PUBLIC INFORMATION — "Most criticism of the Freedom of Information Act centers on agency
refusals to disclose requested records in a timely manner, notes federal secrecy-watcher Steven Aftergood.  "But a
federal appeals court said this week that a Defense Department agency
was 'arbitrary and capricious' in its decision to release documents to a
Freedom of Information Act requester."  The embarrassed parties: defense contractors Sikorsky Aircraft and Pratt & Whitney.

The ruling comes shortly after the release of several new evaluations
of government compliance with the Freedom of Information Act by the National
Security Archive, the Associated
Press, and Citizens
for Ethics and Responsibility in Washington.  Each of these
independent efforts found that FOIA performance in the first year of the
Obama Administration in one way or another had fallen short of the
Administration’s proclaimed standard of “unprecedented openness.” 

Each
report identified questionable patterns in some agencies’ handling of
FOIA requests, mostly involving the frequency of denials, the
persistence of backlogs of unanswered requests, and haphazard
implementation of new Obama FOIA policies.
None of the critics complained of excessive disclosure. 

But a
federal appeals court this week ruled
(pdf) that the Defense Contract Management Agency (DCMA) had been too
forthcoming and had tried to disclose information in response to a FOIA
request that arguably should be withheld.
After the DCMA granted a FOIA request in 2005 to release certain
audit reports involving two DoD contractors, the affected companies
filed so-called “reverse FOIA” lawsuits to block the disclosures. 

Those
companies (Sikorsky Aircraft and Pratt & Whitney) said that the
proposed releases would cause them “embarrassment or negative publicity”
and would compromise proprietary information that could be exploited by
their competitors.  The Defense Department disputed these claims and
prevailed against the companies in district court. 

Upon appeal, the
higher court concurred that “embarrassment” was not a legitimate grounds
for withholding, but it found that the possible compromise of
proprietary information had not been adequately taken into account by
the lower court.
“DCMA’s decision to release the documents was arbitrary and
capricious,” the
court said.  It therefore reversed the lower court’s ruling in
favor of disclosure, and remanded the case for further consideration.
More background on the case is available from the Project on Government
Oversight here.

So is the FOIA process too restrictive in denying information, or too
lax in releasing it?  Any FOIA requester will answer that it’s too
restrictive.  For one thing, just as overclassification is prevalent in
many national security agencies, unnecessary withholding of information
under FOIA because of dubious classification controls is likewise
commonplace.
But a larger point is that annual statistics on FOIA releases and
denials, like those reported by agencies last week, are an imperfect
indicator of changes in government openness, for at least two reasons.

First, the FOIA is not only a disclosure statute, it is also a
withholding statute, i.e. it authorizes or requires both actions under
various circumstances.  If an agency received 100 requests for the
blueprints of a classified weapon system and it issued 100 denials, the
agency would have complied with FOIA perfectly, because Congress did not
intend for properly classified material to be disclosed under the Act. Denials are not necessarily a sign of bad faith, or of a failure of FOIA
policy.

Second, the comparison of FOIA release and denial data between last
year and the year before, as performed by the Associated
Press and others, would be valid and interesting only if the
initial FOIA requests each year were identical, or at least roughly
similar.  But no effort has been made to demonstrate that that is so.
For the same reasons, it is doubtful that Attorney General Eric
Holder was correct to say that a recent increase in the proportion of
FOIA disclosures demonstrated increasing openness in the Justice
Department, as he did on
March 15:  “Today, I’m pleased to report that the disturbing 2008
trend – a reduction in this Department’s rate of disclosures – has been
completely reversed.”

By itself, a net increase in disclosures is not a sure sign of a new
devotion to openness, nor is a reduction in the rate of disclosures
conclusive evidence of non-compliance with FOIA or of agency hypocrisy.
(If there were a statistical rise in judicial rulings against the
government in FOIA cases, that would be a strong indication that
agencies were increasingly acting in violation of the law.  But that
doesn’t seem to be the case either.)

Another reason why annual disclosure rates are unreliable or
ambiguous indicators is that they can be artificially diminished by
spurious requests.  The Central Intelligence Agency’s 2009
log of FOIA requests (flagged by cryptome.org)
lists quite a few eccentric and offbeat requests that are clogging CIA
FOIA channels, along with numerous bona fide inquiries.

One requester asked for CIA “documents pertaining to the Best Buy
located at 4500 Wisconsin Ave NW” in Washington DC.  Under the peculiar
terms of the FOIA, the request must be processed like any other.  But it
would be quite surprising if a FOIA request for CIA records about this “facility,” which I happen to
walk by every day, yielded anything other than a “no records”
response.  If so, such a negative response would automatically lower
CIA’s annual rate of disclosure without providing meaningful insight
into CIA FOIA policy.