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Freedom of Information Act requests are on the rise. Rising faster are instances of federal agencies turning them down. Turns out, they’ve got quite a few perfectly legal reasons for stamping “Sorry, no dice” on FOIA requests. For a review, Federal Drive with Tom Temin turned to the Director of Strategic Issues at the Government Accountability Office, Michelle Sager.

Interview transcript:

Tom Temin: We turn to the director of strategic issues at the Government Accountability Office, Michelle Sager. Michelle, good to have you back.

Michelle Sager: Thank you. It’s great to be here.

Tom Temin: And what are the trends here? Because the FOIA requests, according to your report are rising slowly, but on the rise, but the number of turndowns is really skyrocketing.

Michelle Sager: Right. And so this is an interesting report in that if you kind of don’t live in this world, it may seem fairly obscure. So it might be helpful to explain what this is all about. FOIA is the Freedom of Information Act. It’s existed for more than 50 years. And it basically establishes a legal right of access for us as public citizens to government information. So it’s based on the principles of openness and accountability. As you can imagine, over time, as government has grown more complex, there have been more and more requests for this information. In fiscal year 2019, there were more than 800,000 FOIA requests. This particular report focuses on a relatively narrow slice of those requests, and provides details and information about reasons why that information may not be provided when you request it as a public citizen, a reporter, or another state or local government agency. So for example, there are basically nine general reasons why that information may not be provided. And then one of those reasons is very specific. If there’s another statute that prohibits providing that information, the FOIA officer at a federal agency will not be able to provide that information. And that reason, it colloquially known as exemption three. That’s the focus of this particular report.

Tom Temin: And it sounds like this exemption, B3, is sort of an aperture into a very large body of law. You said that agencies cited 256 statutes that they could use to deny a FOIA request.

Michelle Sager: Right. So if you’re a FOIA officer at a federal agency, one of the things that you have to be checking is whether or not you are legally allowed to provide that information. And Congress can enact or revise a federal statute to allow the withholding of information under FOIA. And so over time, GAO has looked at this issue in the past. Over time, one of the things that we have seen is that additional statutes exist, that prohibit providing that information.

Tom Temin: It sounds like though, that a FOIA officer who is just one of those, and they do exist, let’s face it, that tries to turn down as many as it can get away with, has lots of laws it can call on. And it seems like you could find some statute to turn down almost any FOIA request, if you really wanted to.

Michelle Sager: Well, there are very specific requirements for what FOIA officers have to do and what information they have to provide. And I should also mention that this all exists within this broader context of a push toward open government and making information open by default. And so if you are a FOIA officer, you have to be very clear about which statute you’re citing if you’re not going to provide information, and the reason why that information would not be provided. And some of these reasons make perfect sense. For example, your personal tax return information or information about air transportation security, or business, confidential information. Those can all be some of the reasons why the FOIA request would not be fulfilled.

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Tom Temin: Were you able to discern any particular statute or set of a few of them that are the most often cited?

Michelle Sager: We were, and so the most commonly used statute related to withholding records regarding the issuance or the refusal of visas to enter the United States. And then after that, the next most commonly used reason was a tax return information. And then following that some of the things that seem fairly intuitive once you hear about them. Things that relate to national security, to international affairs or to law enforcement investigations. All of those reasons are some of the most frequently used reasons why an agency may deny a FOIA request based on another statute.

Tom Temin: We’re speaking with Michelle Sager, director of strategic issues at the Government Accountability Office. Now, in this particular report, you did not make recommendations. It’s sort of a status of the FOIA situation. Do you have any sense that there is over use of these statutes, or does it appear that it’s mostly legitimate fair use of the preventions of FOIA fulfillment?

Michelle Sager: So this was, as you mentioned, a descriptive report. And agencies do have to follow the law. So if there is a statute that prohibits them from fulfilling a FOIA request, then they have to comply with that law. One of the things we do in this report is provide a sense of what those general trends are. So if you go to the GAO report, it’s GAO-21-148. It’s a literal treasure trove of data and analysis regarding these statutes. Which agencies use them, how often they use them, what those numbers look like over time. And so we provide a sense of what that universe looks like, as well as what the reasons are including a catalog, if you will, or an inventory of what the statues are. So you can see in great detail what they aligned to be, along with the federal agencies that use them.

Tom Temin: Sure. To be fair, I guess you could say that if a certain statute like the one prohibiting personal tax returns from being revealed, is a cited example that could also then give you trends and what it is people are asking for, not so much trends in agency denial. For example if 10,000 more people wanting to see Donald Trump’s tax return a couple of years ago, then that would have resulted in 10,000 more exemptions based on that statute.

Michelle Sager: That definitely is an important point to mention that given the nature of the kinds of requests that are coming in, but of course, definitely influences the kinds of information that may be provided or may not be able to provide it, as well as depending on how many of those requests come in, in a particular year. That also influences of course, how much agencies are able to fulfill those requests?

Tom Temin: And do we know which agencies do the most denying? And does it sort of correlate with the agencies that get the most requests in the first place?

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Michelle Sager: That is something that we do talk about in the report. And so the agency that had the largest number of exemptions was the Department of Homeland Security, which again, makes sense, given the kinds of exemptions that do exist. So they drove that increase in the most commonly used statute. I should also mention that in the period that we were looking at there were 91 agencies that reported withholding information. So this is the kind of thing that applies government wide, it’s not specific to a single agency.

Tom Temin: And what about the Defense Department? They must have a lot of requests that they cannot grant just on national security grounds.

Michelle Sager: That’s correct. If you’re thinking about sort of the top 5 agencies, first is Department of Homeland Security. After that is kind of a collection of a number of other agencies. And then specific agencies include Department of State, Department of Veterans Affairs and the Department of Defense.

Tom Temin: And so getting to the top line numbers here of the 878,000 requests, FOIA requests, filed in 2019, it looks like 351,000 of them, or more than a third, were partially denied. But the numbers that were fully denied are relatively low at 34,000. So basically, of the FOIA requests that come in in a given year, maybe half actually get fully fulfilled, correct?

Michelle Sager: That’s an important point to mention to put all of this in perspective. So in fiscal year 2019, agencies processed 878,000 FOIA requests. And then as you mentioned, about 40% of them, 351,000, were partially denied. But a really small number, 34,000, relatively speaking, or about 4%, were fully denied. So again, the intention is to provide information when agencies have the statutory ability to do so. And so, only 4% were fully denied based on one of these exemptions.

Tom Temin: People that file requests really ought to read this report. It might give them a lot of wisdom or guidance, and the best way to do it to get at least partial fulfillment.

Michelle Sager: It is definitely a great resource to get a sense of the many reasons why you may not be able to obtain government information, in so far as it does provide that catalog of what all of these statutes are as well as the statutory references so that you can go read about them in greater detail. But again, all of this is somewhat within context of this broader push toward open government. So you have these very specific exemptions, but at the same time, you definitely have the push toward providing information by default, making it open by default, and putting it out on a public facing website. So you have these two very different circumstances that exist at the same time.

Tom Temin: Michelle Sager is director of strategic issues at the Government Accountability Office. Interesting report. Thanks for joining me.

Michelle Sager: Thanks so much.

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