Sensitive Review

“Sensitive review” refers to the practice of giving certain Freedom of Information Act (FOIA) requests extra scrutiny.  This often takes the form of an additional layer of review or “consultation” before records are released.  It may involve special tracking and “awareness” alerts for requests submitted by frequent requesters or representatives of the news media.  Requests may even be flagged for sensitive review simply because they implicate records that are likely to solicit media attention once disclosed.  The process may involve an agency’s public affairs team or other communications specialists, and it frequently includes political appointees, too.  Sensitive review almost always delays and sometimes prevents the disclosure of records that the public has a right to see.

Cause of Action Institute has been investigating sensitive review across the federal government since 2013.  Our work has uncovered troubling developments at more than twelve agencies.  The content below provides an overview of our work.

Sensitive review has become an entrenched agency practice regardless of which party or president is in power.  Although alerting or involving political appointees or career communications staff in FOIA administration does not violate the law per se—and may, in rare cases, be appropriate—there is never any assurance that the practice will not lead to severe delays of months and years.  At its worst, sensitive review leads to intentionally inadequate searches, politicized document review, improper record redaction, and incomplete disclosure.  When politically sensitive or potentially embarrassing records are at issue, politicians and bureaucrats will always have an incentive to err on the side of secrecy and non-disclosure.

Department of Homeland Security

Department of Defense

Environmental Protection Agency

Federal Aviation Administration

Department of Housing and Urban Development

Department of the Interior

General Services Administration

Internal Revenue Service

National Oceanic and Atmospheric Administration

Department of Treasury

Department of Veterans Affairs

White House/ Office of the White House Counsel

Related Work

Definition of a record

Sensitive Review Guidance Memos