Even as Washington gets heat for snooping on ordinary Americans and warning them that they "have no reasonable expectation of privacy" on Healthcare.gov, federal officials are increasingly using the “personal privacy” exemption in the law to shield their employees from scrutiny, according to open government advocates.
Information about pay bonuses, disciplinary actions and severance packages are being withheld by federal agencies citing the personal privacy concerns of their employees.
That is in vivid contrast to the privacy warning buried in the source code for Healthcare.gov, according to the Weekly Standard.
"You have no reasonable expectation of privacy regarding any communication or data transiting or stored on this information system," the warning reads. It can only be seen by using a web browser's "View Source" function.
The section of the federal Freedom of Information Act intended solely to protect purely personal information like Social Security numbers, home addresses and medical records is now being used to shield government workers from accountability in their jobs, transparency advocates say.
“I do think there is increased reliance on exemptions for privacy,” said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, a nonprofit watchdog group with extensive experience in FOIA litigation.
“They are just operating under the view that anything dealing with an individual employee is protected, and that goes way too far. It’s become the exception that is swallowing the rule,” Weismann said.
FOIA requires release of government documents unless they can be withheld under one of nine specific exemptions. Broad categories of records dealing with defense, intelligence, foreign affairs, law enforcement and national security are protected from disclosure.
The privacy exemption to FOIA allows agencies to keep secret “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
Historically, things like names, titles, compensation and duty stations of government employees were considered public records.
But the broad and poorly defined privacy exemption has become a convenient catchall for bureaucrats who don't want to release information that would give the public a keener insight into agency operations, said Tom Fitton, president of the nonprofit watchdog group Judicial Watch, which has chalked up repeated court victories in FOIA disputes.
“It’s part of the secrecy tool chest that government agencies use to keep the public from knowing what the government is up to,” Fitton said.
“It’s absurd. It’s a new shield the government is using to protect itself from having to disclose embarrassing details in controversies, which is exactly what are government employees doing with the time we are paying for,” Fitton said.
After suspicions arose that Beyonce lip-synched the national anthem during President Obama's second inaugural address, Judicial Watch filed a FOIA seeking documents and prerecordings of her performance.
The Navy, with jurisdiction over the Marine band that played accompanying music, redacted the singer's name in its response, citing the privacy exemption to FOIA.
There are more serious examples as well. IRS officials cited privacy concerns in refusing to release details of the retirement and severance package of Lois Lerner, the official in charge of the tax agency's group that stalled applications for tax-exempt status from Tea Party, conservative and evangelical groups during the 2010 and 2012 campaigns.
During President George W. Bush's administration, the FBI refused to release records on Osama bin Laden, citing the privacy exemption in FOIA.
The Departments of Homeland Security and Energy are refusing to provide the Washington Examiner the names of agency employees released from their regular jobs to work for their unions, citing the privacy exemption in FOIA.
The Examiner appealed the decisions from those agencies. The appeal at Energy was rejected and the one at Homeland Security is still pending.
The Examiner is attempting to track the use of “official time,” which allows federal employees to work for their unions while receiving full salary and benefits from taxpayers.
Similarly, the Office of Personnel Management has refused to provide information on merit bonuses paid to top-ranking government officials sought by the Examiner because of privacy concerns.
The privacy exemption also has been cited by the Department of Veterans Affairs in refusing to turn over disciplinary records and severance packages of officials who planned a pair of lavish employee training conferences in Orlando in 2011.
Gregg Leslie, legal defense director at the Reporters' Committee for Freedom of the Press, said federal agencies are increasingly using the privacy exemption to control the flow of information.
“Often we see this done to kind of cover their tracks,” Leslie said. “Even if they haven’t done anything wrong, to at least not give you the information so that you can further investigate who might have been responsible for a particular government decision.
“There’s just a bureaucratic trend of clamping down on ways information gets out because they really do kind of see it as leaks,” Leslie said.
“If everybody can talk to the press, then they worry that everything could get out. They want to control the information more than that,” he said.
Obama promised his administration would be the most transparent in history when he took office in 2009.
“The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails,” Obama wrote in a memorandum to agencies on his first full day in office.
“The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.
"Nondisclosure should never be based on an effort to protect the personal interests of government officials at the expense of those they are supposed to serve.”
However, the Obama administration has failed to deliver on that promise, according to a damning report released recently by Leonard Downie, former executive editor of the Washington Post and now a journalism professor at Arizona State University.
“It discloses too little of the information most needed by the press and public to hold the administration accountable for its policies and actions,” Downie said.
“The administration’s war on leaks and other efforts to control information are the most aggressive I’ve seen since the Nixon administration, when I was one of the editors involved in the Washington Post’s investigation of Watergate.”