Dear Friend of Press Freedom,
I’m Lauren Harper, the first Daniel Ellsberg chair on government secrecy at Freedom of the Press Foundation (FPF), and welcome to The Classifieds. Read on to learn about the week’s top secrecy news.
HUD invents an AI FOIA privilege to hide housing policy
For decades, Freedom of Information Act requesters have warned that the act’s Exemption 5 deliberative process privilege is so widely abused that a better name for it is the “withhold it because you want to” exemption. While designed to protect candid policy discussions among staff, it is instead routinely used as a catchall to keep embarrassing information secret — from a decades-old CIA history of the disastrous Bay of Pigs invasion to internal COVID-19 communications. This persistent abuse continues despite the fact that the deliberative privilege is discretionary, and agencies are not legally required to withhold the information, even if it technically can be held back under the statute.
Now, one agency is expanding this invisibility cloak to cover employee interactions with artificial intelligence.
A response to a FOIA request submitted by the nonprofit Democracy Forward shows that the Department of Housing and Urban Development is reimagining Exemption 5 to withhold over 100 documents about how the Department of Government Efficiency team at HUD used AI to identify regulations to change or eliminate. HUD claimed, without any apparent guidance from the Justice Department or legal precedent, that AI prompts and “deliberative AI input” were covered by the privilege. (The agency also cited the presidential communications privilege for some records — likely because the prompts involved DOGE’s main office, which treats itself as a Presidential Records Act entity.)
This is happening alongside more traditional secrecy tricks. Just recently, the Department of Homeland Security’s FOIA chief was caught instructing officials to keep signed, completed privacy threat assessments in “draft” status. The goal is identical: improperly applying the predecisional exemption to withhold information.
If a government employee writing or refining a prompt for a chatbot is protected by Exemption 5, we face a bleak future where any policy touched by an algorithm is insulated from public scrutiny — and that could encompass nearly every policy.
FOIA shows State Department mislabeling contraceptives in effort to destroy them
The Trump administration promised to reduce waste when it dismantled the U.S. Agency for International Development. Instead, records show that hundreds of thousands of taxpayer dollars were squandered while millions of dollars in medical supplies spoiled.
A FOIA lawsuit by the Center for Reproductive Rights forced the State Department to release emails detailing the administration’s botched plan to destroy $9.7 million worth of contraceptives stored in a Belgian warehouse, which were originally destined for developing nations.
Because Belgian law prohibits incinerating pharmaceuticals, the administration had to abandon its plans to burn them. But by the time the plan was scrapped, the contraceptives had spoiled after the administration spent $434,000 on inadequate storage.
To justify destroying the contraceptives in the first place, the State Department claimed it was targeting commodities that induce abortions, known as “abortifacients.” In reality, the emails show a senior official incorrectly labeled standard, Food and Drug Administration-approved contraceptives, which are legally permissible to fund abroad, as “abortifacients.”
Beyond muddying the line between contraception and abortion, the documents highlight a significant recordkeeping failure. The State Department claimed it had no insight into what exactly was being stored in the warehouse “due to the fact USAID did not share this data.” But under the Federal Records Act, Marco Rubio — who was acting as both secretary of state and USAID administrator at the time — was responsible for securing the transition of those USAID records to State, raising questions about what else has been lost.
What I’m reading
How Marco Rubio is running Venezuela from afar
Lest we forget, in addition to his numerous other duties, Marco Rubio is also effectively running Venezuela — managing its finances and reshaping its oil industry for the benefit of American companies. Neither country has commented on Rubio’s purported role, and Rubio himself has refused to be interviewed about it. But guess how many documents the departments of State and Treasury have released in response to our FOIAs about this relationship? Zero.
DHS was granted $20M for body cameras. ICE agents in fatal Houston shooting had none
Despite prior claims that it was using tens of millions of dollars to equip immigration officers nationwide with body cameras, Immigration and Customs Enforcement now admits — in the wake of killings in Texas and Maine — that its officers weren’t wearing the devices. ICE blames the lack of cameras on recent government shutdowns, but acting ICE Director David Venturella promises that all officers will have them by the end of July. Furthermore, at least one member of every ICE team must wear a body camera from now on, the Department of Homeland Security said.
Transparently yours,
Lauren Harper
Daniel Ellsberg Chair on Government Secrecy
Freedom of the Press Foundation
