Merriam-Webster defines transparent as having the property of transmitting light without appreciable scattering so that bodies lying beyond are seen clearly. Does government transparency follow suit? Taking in consideration the definition given, or using clear as a synonym to transparent, it can be argued that it does not. The Freedom of Information Act (FOIA) does not grant the public access to all government information. There are nine different types of exemptions that allow certain categories of information to be withheld in response to a FOIA request. According to FOIA.gov, “the release of these [categories] would be harmful to governmental or private interest. “
An American Civil Liberties Union (ACLU) FOIA request to the National Security Agency (NSA) experienced how these exemptions can prevent the release of a complete FOIA request. According to an article from law360.com, the government partially complied and partially denied the request, prompting the ACLU to file a suit seeking full disclosure of records. The Federal Bureau of Investigation (FBI) claims the withheld information falls under two of the categories Congress determined as exempt from FOIA requests.
“The government’s declarations amply demonstrate that it has properly withheld responsive records pursuant to FOIA Exemptions 1 and 3,” the FBI wrote in a motion for summary judgment asking a New York federal court to allow it to shut down the ACLU request.
The initial ACLU FOIA request was submitted in May 2011 seeking records of the use of the Patriot Act’s section 215. The ACLU filed suit in October of the same year when the request came back with partial information and has been in litigation since.
The FBI maintains that the information is classified under Exemption 1, which protects information related to national security and Exemption 3 where the information is prohibited under another federal law. The majority of the language within the Exemption definitions is vague allowing the Exemptions to be open for interpretation. There is no defined list of documents one could place underneath each category. For that reason many FOIA request end up in the litigation and it is up to the court to decide what informaton is protected.
Are these exemptions looking out for the public’s best interest or is complete government openness needed? The question is and will continue to be open for debate. Perhaps to better reflect the reality in the laws a better term would be Government Translucency than Government Transparency; not completely clear but clear enough to allow some light to pass through.
The FOIA exemption categories and definitions can be found here.
To read the entire Law360 article click here.