“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
- Oct. 20, 2017 – DHS Watchdog Claims Political Appointees No Longer Politicizing FOIA
- Dec. 21, 2018 – CoA Institute Discovers Curious DHS FOIA Notification Process for Employee Records
Department of Defense
- Dec. 2012 – Departmental Situational Awareness Process for Significant DoD FOIA Responses
- July 9, 2013 – Secret Pentagon policy may delay responses to Freedom of Information Act requests
- Aug. 2018 – Departmental Level Notification Process for Significant DoD FOIA Requests and Responses
- Aug. 8, 2018 – DoD Watchdog Details Agency’s Failure to Address FOIA Shortcomings
Environmental Protection Agency
- Dec. 19, 2017 – Politicizing FOIA review at the EPA and Interior
- May 14, 2018 – Politics Clouding Criticism of the EPA’s Heightened Sensitive Review FOIA Procedures
- July 16, 2018 – EPA Chief of Staff describes agency’s sensitive review process for “politically charged” FOIA requests
- July 19, 2018 – EPA responds to House OGR Democrats, arguing FOIA “sensitive review” originated with the Obama Administration
Federal Aviation Administration
Department of Housing and Urban Development
- July 31, 2013 – FOIA Follies: HUD Flags Sensitive Freedom of Information Act Requests for Extra Scrutiny; Political Appointees Involved
Department of the Interior
- Dec. 19, 2017 – Politicizing FOIA review at the EPA and Interior
General Services Administration
Internal Revenue Service
National Oceanic and Atmospheric Administration
- Dec. 11, 2017 – COA NOAA Sensitive Review FOIA Request
- Mar. 12, 2018 – NOAA Records Demonstrate Expansion of Sensitive Review FOIA Procedures
Department of Treasury
- June 20, 2013 – Cause of Action Memos Impugn Obama Transparency Pledge
- June 24, 2013 – White House and Treasury Department Politicize FOIA
- Nov. 1, 2016 –CoA Institute Sues Treasury for “Sensitive” Records Concealed from Public Disclosure
Department of Veterans Affairs
- Aug. 1, 2018 – VA Sensitive Review FOIA Request
- Aug. 1, 2018 –Democratic Senators Seek Records about “Sensitive Review” from VA, Ask Inspector General to Open Investigation into FOIA Politicization
- Aug. 16, 2018 – VA Sensitive Review FOIA Appeal
- Aug. 16, 2018 – Department of Veterans Affairs Discloses 2014 Guidance on Intra-Agency Consultations for FOIA Requests of “Substantial Interest” to Agency Leadership
- Dec. 12, 2018 – Investigation Update: VA releases 2014 memo on “sensitive review,” but fails to conduct an adequate search for more recent FOIA guidance
- August 9, 2019 – Investigation Update: The VA continues to subject certain FOIA requests to “sensitive review,” but the agency is keeping records about the practice secret
White House/ Office of the White House Counsel
Related Work
Definition of a record
- Feb,. 8, 2017 – Defining a “Record” under FOIA
- Oct. 18, 2018 – Cause of Action Institute Lawsuit Seeks to Overturn DOJ’s restrictive FOIA guidance
Sensitive Review Guidance Memos