Last month, the House Committee on Oversight and Government Reform held a two-day hearing about the Freedom of Information Act (FOIA). The committee heard testimony from reporters — I testified at the hearing — transparency advocates, and government officials about what's working, what's not, and how Congress could improve the decades-old law.
Among the many things discussed was the fact that government agencies have been increasingly abusing a FOIA exemption to justify the withholding of vast swaths of information contained within documents sought under FOIA. Known within FOIA circles as the "withhold it because you can" exemption, it pertains to documents that are part of a behind-the-scenes "deliberative" decision-making process, and covers any "inter-agency or intra-agency memorandums or letters," drafts, and attorney-client records. It's a discretionary exemption (formally known as Exemption 5) that government agencies could waive in favor of disclosure. But they rarely do.
An excellent example of how Exemption 5 is abused can be found in the State Department's release late Tuesday night of the first batch of Hillary Clinton's emails. Although the exemption was applied throughout the 3,000 pages of the Democratic presidential frontrunner's communications from when she served as Secretary of State, one particular email stands out.
It's a 16-page draft copy [pdf below] of a speech Clinton gave to the Council on Foreign Relations on July 15, 2009. Clinton had sought outside guidance on the speech from someone with the initials ST, who is Strobe Talbott, president of the Brookings Institution and a renowned foreign policy analyst.
Citing Exemption 5, the State Department redacted the entire draft of the speech with the exception of Talbott's suggested edits. It would be hugely beneficial for the public to get a look at Clinton's draft speech, as it would provide insight into her thinking on global issues and how it may inform foreign policy.
"The FOIA was enacted so citizens can know how their government is operating," said Nate Jones, a FOIA expert at George Washington University's National Security Archive. "This includes how it formulates policy. Which means that in most circumstances, drafts should be released to the public."
Jones said the State Department's application of Exemption 5 over Clinton's draft speech is an "egregious waste of time and money."
"State went out of its way to censor information that Secretary Clinton herself said she wanted released," Jones said.
But it appears that the State Department, in applying the redactions to the speech, may have mistakenly left Talbott's editing comments intact given that Exemption 5, although discretionary, is often used by the government to protect from disclosure advice given to the recipient of such information, even if it comes from an individual who doesn't work for the government. A State Department spokesperson did not return a request for comment.
Daniel Metcalfe, the founding director of the Justice Department's Office of Information Policy (OIP), the division that is supposed to ensure other agencies are complying with the attorney general's FOIA guidelines, told VICE News that even though Talbott is "commenting here from outside of the agency, there is Exemption 5 case law that would support applying the deliberative process privilege to withhold most or all of what he said."
"So there is every possibility that State did not intend to disclose those comments, in its haste not realizing that such marginalia would come through in its electronic disclosure format. If so, surely a cautionary tale," Metcalfe said.
Jones, on the other hand, said whether or not the disclosure of Talbott's comments was intentional it is "still no excuse for the redacted draft speech."
One can only guess what Clinton's draft speech looked like based on what Talbott advised Clinton to change. For example, he told her not to "push the 'exceptionalist/indispensible' line too hard." He said she was in danger of overusing the word "challenge." He advised Clinton to avoid using a "cliché," which he characterized as a "throwback to Gerry Ford." And he said she should emphasize the point that "just because climate change is a 'long-term threat' doesn't mean urgent action can be put off."
Clinton ended up using the word "challenge" seven times, according to a transcript of her speech. She also said tackling climate change was a priority for the Obama administration.
Talbott did not respond to VICE News' requests for comment.
There are dozens of other email exchanges between Talbott and Clinton and her staffers in which he is queried for advice on foreign policy matters. One email shows that Clinton reached out to Talbott for a recommendation on "another smart, politically savvy assistant, preferably one [with] foreign policy experience expertise." Talbott asked Clinton what her age preference was, a question to which Clinton did not respond. A couple of days later, he said he found someone for her.
"I've got great young guy (30ish) to suggest for the assistant position if you're interested in someone of huge promise and total dedication and immense intelligence," he wrote in the June 11, 2009 email.
Last March, after the New York Times revealed that Hillary Clinton exclusively used a private email server to conduct official business during her tenure as Secretary of State, she tweeted that she wanted the State Department to release "all of her emails, as soon as possible."
"The only silver lining is that the Department of State's abuse of Exemption 5 to hide documents so sought after by the public will bring attention to the largest problem with FOIA, government-wide: the extreme levels of discretionary Exemption 5 misapplication to hide information simply because agencies don't want the public to see it," Jones said.
Currently, a FOIA reform bill is slowly winding its way through Congress. The legislation includes an important change to Exemption 5, which in its current form allows government agencies to withhold documents under that exemption forever. But the proposed bill would prohibit government agencies from invoking Exemption 5 for documents that are 25 years old.
This report has been updated.
David Ledwith provided additional research for this story.
Follow Jason Leopold on Twitter: @JasonLeopold