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FOI Columns
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May/June 2004

Privacy exemptions may prove higher hurdle than national security
by Jennifer LaFleur


While we’ve watched the federal government close records to protect our freedom, the real threat to openness has not been terrorism. It has been privacy.

In 2002,federal agencies used privacy exemptions to withhold records more than any other exemption available to them under the Freedom of Information Act.

Of FOIA’s nine exemptions,two relate to privacy. Exemption 6 protects information about an individual when release of the information "would constitute a clearly unwarranted invasion of personal privacy." Exemption 7(c)protects personal information in law enforcement records.

Exemption 2, which allows information to be withheld for national security reasons, was invoked only one out of 100 times when an exemption was used.

During a fellowship with the Reporters Committee for Freedom of the Press last year, I did an analysis of annual FOI reports filed by 25 agencies from 1998 to 2002. We chose 25 agencies for which the General Accounting Office had used for previous analyses.

What we found was that those agencies invoked privacy exemptions about 380,000 times in 2002. That’s about 80 percent of all instances of any exemption being invoked and was a six-fold increase from 1998. In 1998, those exemptions combined represented only about 38 percent of all exemptions.

The basis for this analysis is a document that every federal agency is required by Congress to produce–the FOIA annual report. In that report,an agency is required to record such things as how many requests it denied,how many it filled and its average processing time. For reporters making requests,it ’s a good document to check for reasons an agency tends to use for denying requests.

The Justice Department has links to federal agencies’ annual reports on its Web site at www.usdoj.gov/04foia/04_6.html. Many agencies’ 2003 reports are now available; a few agencies are lagging.

The 2003 reports that are now available show a trend similar to 2002 in which privacy exemptions are the leading reason for withholding information.

In analyzing those reports, we found that withholding information because of national security concerns did not appear to increase significantly. Exemption 1, which protects classified national security information from disclosure, was actually invoked less frequently by most agencies, including the Defense Department. The State Department was an exception. It invoked this exemption at a higher rate than it had previous years –nearly 500 of the more than 3800 times it invoked an exemption. In its 2003 report, the agency says it used the exemption 736 times out of 2,425 times it invoked any exemption.

Privacy also was tucked into another exemption. Exemption 3, which exempts information specifically protected by other statutes, was used to invoke statutes that related to protecting privacy. For instance, six agencies withheld information under Exemption 3 by citing the Internal Revenue Code, which protects tax return information from disclosure. The spectrum of the use of this exemption is broad,but each agency is required to report what other exemptions it used when it invoked Exemption 3. Some seem a bit obscure. The Agriculture Department has used the Watermelon Research and Promotion Act and the Honey Research, Promotion, and Consumer Information Act to withhold information.

A law that went into affect in April 2003, the Health Insurance Portability and Accountability Act, was designed to protect patient privacy. As a result, information that journalists routinely gathered from hospitals is no longer available. In addition, local agencies that at the law’s inception were not considered, are now crying HIPAA as a reason to not release information about police incidents, fires and accidents.

Privacy protection over records is not new. Congress passed the Driver’s Privacy Protection Act in 1994 to protect personal information in driver records. That has curtailed reporting that relies on driver records that may have offered important stories to the public.

This move increased closure of other personally identifying information including voter records, hunting licenses, personnel records and even pet licenses. "If you don't know anything about who's being affected by government, you don't know government," said Rebecca Daugherty, director of the Reporters Committee for Freedom of the Press FOI Service Center.

As courts develop new electronic filing systems, many are designing processes to protect individual privacy.

Reporters trying to navigate these regulations should realize that not everything can be withheld for privacy reasons; both the federal FOIA and most local open records laws outline specific reasons under which individual identifying information may be withheld. Know the law. If an agency wants to withhold such information, make it cite the statute that allows it to withhold the information. Search your state attorney general decisions to see if this issue has been addressed. Call your state open records coalition and report that you're being denied such records. In other words, when you hear "no," don't just go away. That's what they want you to do.

Jennifer LaFleur is the McCormick Tribune Foundation journalism fellow at the Reporters Committee for Freedom of the Press. She is chair of IRE's First Amendment Task Force and a former training director for IRE.