I've written more than 100 Freedom of Information Act (FOIA) requests over the past few years, as well as a newsletter on FOIA policy, so it caused me great pain to read the headline over at Vox on Tuesday: "Against Transparency: Government officials' email should be private, just like their phone calls."
Vox's Matt Yglesias writes that, in an age of casual email, the problem with making government officials' emails subject to public records by default "is that in addition to serving as a deterrent to misconduct, it serves as a deterrent to frankness and honesty."
The solution, Yglesias says, is to make emails off-limits to public record searches, much like phone calls.
"Government secrecy can be, and in some ways is, out of control," he writes. "But a private conversation to facilitate a frank exchange of ideas is not the same as a secret bombing campaign in Cambodia. We need to let public officials talk to each other—and to their professional contacts outside the government—in ways that are both honest and technologically modern."
Good point! If only someone in Congress had thought of it when they were crafting the Freedom of Information Act.
As it turns out there is already an exemption in the federal FOIA for exactly those kind of records. 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.
Personally, I've received hundreds of completely redacted pages of communications about the Obama administration's contraception mandate and alleged Hatch Act violations by senior officials. I got the same results when I requested emails from New York Gov. Andrew Cuomo's office about the state's 2013 gun control law.
Part of the recently passed FOIA Improvement Act of 2016 included a 25-year limit on withholding such "predecisional" documents. In a FOIA lawsuit filed by the National Security Archive in 2012, the CIA successfully argued in court that a 30-year-old internal history of the Bay of Pigs invasion was "predecisional" and exempt from disclosure under exemption b(5).
So much for chilling effects.
But on a broader level, it's just a silly idea that access to public records through FOIA should be restricted because government officials will avoid disclosure anyway. It reflects an obliviousness to how vital these communications are to news investigations and how extraordinarily time-consuming and difficult it already is to get them.
As Associated Press editor Ted Bridis pointed out on Twitter, the AP only found out through a public records request of FAA phone transcripts that Ferguson police had instituted a no-fly zone over the town to specifically block news helicopters.
The reason New Jersey Gov. Chris Christie got into trouble for jamming up traffic on the George Washington Bridge as an act of political retribution was because reporters from the New Jersey Record obtained emails between his staff—the sort of communications Yglesias says should be secret—through about a dozen public records requests. (The damning "time for some traffic problems" email was actually leaked to The Record after the Christie administration erroneously told the newspaper there were no responsive documents to its request.)
Or how about the racist emails going around in the Ferguson police department? Or the racist emails that caused the Los Angeles County Sheriff to resign? Are those the sort of casual, everyday emails that should be off-limits to the public view? Michigan Gov. Rick Snyder voluntarily disclosed thousands of pages of emails from his office regarding the Flint water crisis, but those communications are normally exempt from state record law. Does that sound like a policy that should be extended to more government bodies?
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. For instance, here's an Arizona Republic story from Tuesday [emphasis added]:
Jerry McCoy, the chief of staff for Surprise Mayor Sharon Wolcott, resigned from his executive position on July 18 after signing an agreement that provided him continued paychecks totaling about $22,000 plus other benefits. He left his job the same day.
Two days later, the city's human resources department received a complaint about McCoy from another employee who believed McCoy purged a significant amount of city documents from file cabinets containing records from current and previous mayors and City Council members, according to public records obtained by The Arizona Republic.
The subsequent HR investigation found "sufficient evidence to prove" that McCoy, who held his job for more than two years, violated city policies regarding "misuse or destruction of public records."
But I'm sure we can trust federal bureaucrats to behave more responsibly once they don't have to worry about someone snooping on their emails.