Exempting Emails? Suggestion Bashed in US

8 September 2016

A column by a US journalist questioning whether emails should be subject to the Freedom of Information Act triggered an outpouring of rebuttals.

Treating email as public by default rather than private like phone calls does not serve the public interest,” wrote Matthew Yglesias in Vox, prompting numerous, mostly critical responses.

One detailed reply came from Nate Jones, a staff member of the National Security Archive (the organization that publisher of FreedomInfo.org). Jones wrote that Yglesias was ”wrong on many of his arguments.” Jones described 1989 Archive litigation that resulted in a court ruling that emails are covered by the FOIA. Jones wrote:

So, to be clear, Yglesias’s argument is not a new, provocative idea.  There has been much discussion about the topic, and there is clear law and court precedent that emails (and text messages, and Slack messages, and Gchats) are firmly established federal records. It’s the law of the land.

Jones and others cited key information disclosed because of emails uncovered through FOIA requests.

Reason journalist C.J. Ciaramella weighed in, writing, “There are innumerable other stories about regulatory capture, cronyism, and corruption that would never see the light of day if we accepted the argument that everyday emails aren’t in the public interest, and what bureaucrats really need to make government more efficient is less oversight.”

Michael Morisy of Muckrock, commented, “Unfortunately, Yglesias has a lot of misconceptions about how FOIA works, as folks who live and breathe FOIA widely noted. But beyond these and a number of other inaccuracies, Yglesias is wrong about why emails should be subject to FOIA for two critical reasons:

  • These types of requests have proved an essential tool for journalists in an era when the press is significantly diminished and agencies have become increasingly sophisticated in spin.
  • Leaving emails and other routine documents subject to FOIA encourages a general culture of transparency within agencies while creating another reminder that government employees work for the people.

The exchanges also touched on the exemption in FOIA designed to protect the deliberative process.

This conversation cited to the preliminary draft paper on transparency that Cass Sunstein, a Harvard professor and former Obama administration official. He concluded, “There is good reason for a large increase in output transparency — and for caution about input transparency,” especially meaning advice shared internally by officials while making decisions. He commented, “What most matters is what the government actually does, not who said what to whom.”

 

Yglesias said a higher degree of secrecy is necessary to allow frank discussions among officials, offering  various examples and observing:

Journalists are, of course, interested in learning about all such matters. But it’s precisely because such things are genuinely interesting that making disclosure inevitable is risky.

Ciaramella replied:

Exemption b(5) of the FOIA, known as the “deliberative process” exemption, was added so bureaucrats could have frank discussions of policy decisions outside of the public eye. Those concerns are also why Congress and many state legislatures are wholly exempt from public records requests.

And, as any frequent FOIA requester will tell you, exemption b(5) is also wildly abused by government officials to redact anything embarrassing or trivial they do not want disclosed. In fact, it’s known among disappointed requesters as the “withhold it because you want to” exemption. In 2013, the Obama administration applied exemption b(5) to 13 percent of all the FOIA requests it processed that year.

Another blast back at Yglesias came from Kevin Gosztola of Shadowproof, whose theme is signaled in the headline, “The Derangement Of Journalists Against Transparency.

Yet another take came from Jim Harper of the Cato Institute, a conservative Washington think tank.

His comments include:

The transparency movement is a reform movement based on a vision of modern government. Sunstein’s and Yglesias’ modest arguments against transparency don’t appear to recognize the government’s long, systematic exclusion of the public from its processes or the resulting atrophy of Americans’ civic muscles. Thus, they too easily conclude that giving transparency to internal matters, or “inputs,” is not necessary because it’s not useful.

Matt Taibbi of Rolling Stone magazine began, “You may never see a worse case of media Stockholm Syndrome than a recent column by Matt Yglesias at Vox….”

A different twist came from Kevin Drum, a Mother Jones magazine blogger, who advocated “less transparency, but faster, more effective transparency.” He wrote, “Change FOIA rules so executive branch officials have more latitude for the kinds of frank policy discussions they need to have—and less fear that their every word will be used not to enlighten the public, but solely as nuclear weapons in political campaigns. But in return, properly fund compliance and place real limits on how long legitimate FOIA requests can be stonewalled. Any takers?”

Several commenters referred back to an earlier article, “Why Critics of Transparency Are Wrong,” by Gary D. Bass, Danielle Brian and Norman Eisen.

 

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