OMB redactions found to exceed FOIA exemptions in records case

Much of the information the Office of Management and Budget refused to give a public watchdog group as requested must be released because it is not covered by FOIA exemptions, the U.S. Court of Appeals in Washington (D.C. Cir.) ruled last week.

In a puzzling twist, given the majority of the panel’s expressed respect for the public’s right to know, the court redacted large portions of its own opinion. The reason, the court said, was to avoid publicizing information that had not yet been disclosed, to allow OMB to appeal the decision.

The advocacy group, Public Citizen, had requested documents regarding which federal agencies were allowed to submit materials to Congress without clearance from OMB. The district court had allowed OMB to release redacted versions of 14 documents, under Exemption 2 to FOIA, which protects "predominantly internal" documents.

The appellate court, after inspecting the unredacted documents, said the fact that the documents were intended for internal use did not exempt them from FOIA. If they were exempt, the court reasoned, it would allow agencies to hide almost anything by marking it "for internal use only." In fact, the court said: "[T]he documents at issue here lie at the core of what FOIA seeks to expose to public scrutiny. They explain how a powerful agency performing a central role in the functioning of the federal government carries out its responsibilities and interacts with other government agencies."

The circuit court also rejected OMB’s argument that the documents are entirely covered by Exemption 5 as "predecisional and deliberative." Factual information, such as the names of agencies that generally decline to get OMB clearance, cannot be withheld under that exemption, the court ruled.

The court ordered the release of one of the documents and sent the other 13 back to the district court to determine which portions, if any, can be redacted on the basis of being truly predecisional and deliberative.