FOIA: That's Some Exemption, That Exemption 6
By Duane Thresher, Ph.D.
November 11, 2020
I file a lot of Freedom Of Information Act (FOIA) requests.
Many are to discover the outrageous salaries of IT incompetent
government IT officials for the Government
IT Incompetents Hall Of Shame (ITIHOS)
. These are usually
successful, although after many months. But some are for
Apscitu Mail, to discover the government email addresses
(.gov) of government officials, which is part of my
preparation for a lawsuit against the U.S. Government for
violation, in its use of email, of my First Amendment right
"to petition the Government for a redress of grievances".
These are usually not successful, because of Exemption 6 of
the FOIA law (Title 5 of the United States Code, §
552(b)(6)). If you actually read Exemption 6 though, you
realize it's ridiculous to say it applies to government email
addresses. The whole situation is as surreal as Catch-22,
which I read as a teenager and later saw the movie. I play
Yossarian, instead of Alan Arkin, and the U.S. Government
plays itself, again.
As I wrote in IT
Incompetent Attorneys General v. Google
, in September 2019
I made an FOIA request to the Department of Justice (DOJ) for
the email addresses of the most recent U.S. Attorneys General
and the pertinent part of the response was:
For your information, the official Department email account of
the Attorney General does not use their name. This practice
is consistent with that of former Attorneys General and
protects the privacy and security of the Attorneys General,
allowing them to conduct official business efficiently via
email. Attorney General email account names are released once
they are no longer in use, and in such circumstances,
requesters are advised that the account denotes emails to or
from the Attorney General. Attorney General emails account
names in current use are protected pursuant to Exemption 6, 5
U.S.C. § 552(b)(6), which pertains to information the
release of which constitute a clearly unwarranted invasion of
the personal privacy of a third party. ...
Accordingly, please be advised that Attorney General Holder
used three email accounts during his tenure. Those accounts
were "Henry.Yearwood@usdoj.gov," "David.Kendricks@usdoj.gov,"
and "Lew.Alcindor@usdoj.gov." To be clear, these accounts
were used consecutively, in the order listed, and not
simultaneously. Attorney General Lynch used the email account
"Elizabeth.Carlisle@usdoj.gov." Attorney General Sessions
used the email account "Camden.Hybart@usdoj.gov." As stated
above, the email account currently in use by Attorney General
Barr is being protected pursuant to Exemption 6 of the
First note that the DOJ says that not revealing the current
Attorney General's email address "protects the privacy and
security of the Attorneys General, allowing them to conduct
official business efficiently via email".
But what is the "official business" of the U.S. Government, a
government of the people, by the people, and for the people
(from President Lincoln's Gettysburg Address and often quoted
as the definition of democracy)? Even if this weren't already
stated explicitly in the First Amendment right "to petition
the Government for a redress of grievances", the official
business of the U.S. Government obviously should involve
talking to the people, most easily done via email in this day
Serving in government is often called "public service" and
those doing it "public servants". So the Attorney General is
too busy being a public servant to serve the public? This is
as paradoxical as Catch-22 (if you don't know what Catch-22
is, read the book or see the movie; no spoilers
Also paradoxically, the FOIA was enacted specifically because
government was being too private and not answering to the
In September 2019 I also made an FOIA request to the
Environmental Protection Agency (EPA) for the email addresses
of the recent EPA Administrators, who like the Attorneys
General had been accused of funny business with their email.
In September 2020 I finally received a response and the
pertinent part of it was:
Inserted below is a chart reflecting email addresses that have
been assigned to Senate confirmed Administrators since
1993. Please note that the secondary email address of
Administrator Andrew Wheeler is currently in use and is
therefore withheld pursuant to FOIA Exemption 6 which protects
unwarranted invasions of personal privacy.
||Primary Email Address
Calender Email Addresses
|Carol M. Browner
|Christine Todd Whitman
|Michael O. Leavitt
|Stephen L. Johnson
|Lisa P. Jackson
|Andrew R. Wheeler
You can be sure that emails to the publicized or
easily-guessed primary email address were never actually read
by the EPA Administrators but those to the secret secondary
(and calender?) email addresses were.
That's some exemption, that Exemption 6.
(Hanging upside down from the tail hatch of a taxiing B-25,
after having had the paradoxical Catch-22 explained to him by
the flight surgeon walking behind — Doc Daneeka played
by Jack Gilford in the movie — Yossarian exclaims
"That's some catch, that Catch-22". Smiling, Doc answers
"It's the best there is".)
What exactly does Exemption 6 say? You can find the full text
of the FOIA law (Title 5 of the United States Code, §
552) on the Department of Justice's website, www.justice.gov
(www.usdoj.gov, as in the email addresses, just forwards
there), since they are tasked with enforcing the law, but the
pertinent part is:
(b) This section does not apply to matters that are ...
(6) personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy;
To say that revealing to the people a government official's
government email address (.gov), that he/she uses to conduct
official business, is a "clearly unwarranted invasion of
personal privacy" is as surreal as Catch-22. Are they
intending to protect the privacy of the person, usually
imaginary, who is named in the email alias?
What I have discovered with many laws is that because no one
ever actually reads them, they are quoted as meaning whatever
the government official wants them to mean. You have to sue
the government official to make the law mean what it was
intended to mean (see for example Dr. Duane Thresher
v. Governor of Virginia Ralph Northam, U.S. District Court,
Eastern District of Virginia, Richmond Division, Judge David
J. Novak, Case Number 3:20cv307).
So I'll just email the Attorney General to have him enforce
this law the way it was meant, i.e. petition him for redress
of my grievance. Oh wait, I can't email the Attorney General
because he won't enforce the law the way it was meant.
Another paradox worthy of Catch-22.