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 FOIA.

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 and age.

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 here).

Also paradoxically, the FOIA was enacted specifically because government was being too private and not answering to the public.

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.

Administrator	Primary Email Address	Secondary and Calender Email Addresses
Carol M. Browner	Browner.Carol@epa.gov	n/a
Christine Todd Whitman	Whitman.Christine@epa.gov	towhit@epa.gov
Michael O. Leavitt	Leavitt.Michael@epa.gov	mol@epa.gov
Stephen L. Johnson	Johnson.StephenL@epa.gov	tocarter@epa.gov
Lisa P. Jackson	Jackson.LisaP@epa.gov	windsor.richard@epa.gov
Gina McCarthy	Mccarthy.Gina@epa.gov	adm13mccarthy.gina@epa.gov 5178RAMcCarthy.Gina@epa.gov GinaMcCarthy.epaadministrator@epa.gov
Scott Pruitt	Pruitt.Scott@epa.gov	adm14pruitt.scott@epa.gov esp7@epa.gov sooners7@epa.gov
Andrew R. Wheeler	Wheeler.Andrew@epa.gov	withheld

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.