An Important Story Often Overlooked: The Many Other Statutes That Hide Things

Charles Davis
March 18, 2008 — 947 views  
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Here is a great story from my pal Kirsten Mitchell on an often overlooked issue: the many statutes that work like mini-exemptions in federal law. This is a story that ought to be replicated over and over in state after state!

Government information as wide-ranging as the names of people who grow watermelons or olives, information on tax returns, and the location of endangered plants and large caves is shielded from Americans under at least 140 provisions scattered throughout federal law.

Their use by federal departments to deny access to government information more than doubled between 1999 and 2006, according to data compiled from each department.

The provisions' oft-buried fine print carves out exemptions to the Freedom of Information Act, a 42-year-old law that presumes public access to information from government agencies and lays out nine categories of information that the government may keep secret.

One of those nine is a catchall exemption which requires shielding government records that are specifically exempt from FOIA by federal law. Critics contend that the exemptions erode government transparency.

The exemptions "just have a tendency to chip away at the presumption that information is supposed to be public," said Meredith Fuchs, general counsel of the National Security Archive, an independent nongovernmental research institute at George Washington University in Washington.

Dozens more catchall exemptions are being proposed in Congress, tucked into legislation for everything from bolstering the safety of the nation's food supply to increasing security at wastewater treatment plants...

At least two dozen bills contain proposed special exemptions to FOIA. No one has an exact count, because they are difficult to track. Sometimes the proposals reference FOIA by citing "section 552 of title 5" of the U.S. Code. Other times, the language is more ambiguous, deeming that information shall be confidential or shall not be disclosed to the public.

Current proposals include exempting from FOIA a congressional advisory commission on world trade disputes, the identities of people who report illegal immigration and records related to railroad carrier plans to make the nation's rails safer.

Charles Davis

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Charles N. Davis is an associate professor at the Missouri School of Journalism and the executive director for the National Freedom of Information Coalition, headquartered at the School. Davis' scholarly research focuses on access to governmental information and new media law, including jurisdictional issues, intellectual property and online libel. He has earned a Sunshine Award from the Society of Professional Journalists for his work in furthering freedom of information and the University of Missouri-Columbia Provost's Award for Outstanding Junior Faculty Teaching, as well as the Faculty-Alumni Award.