FEMA's keeping the lid on hurricane victim survey results, according to southern Florida newspaper The News-Press. The newspaper filed a Freedom of Information Act (FOIA) request to the Federal Emergency Management Agency for a satisfaction survey of "10,953 of the 316,000 people who received home inspections after hurricanes Charley, Frances, Jeanne and Ivan how well the inspector did his or her job." FEMA denied the request, only releasing the number of surveys sent out and responses received, with FEMA's acting director of recovery David Garratt claiming in a letter that "the data was confidential and that it is used in the decision-making process."
Besides the argument that this data should be made available so the embattled federal agency can be held accountable, FEMA's rationale for the denial of the request is unusual and probably unsound:
The FOIA exemptions FEMA cited — confidentiality and decision making information — don't seem appropriate in this case, said First Amendment scholar Jane Kirtley, a professor of media ethics and law at the University of Minnesota.
The House Government Reform Committee's Citizen's Guide to FOIA says this about the (b)(5) decision-making exemption:
The FOIA's fifth exemption applies to internal government documents. An example is a letter from one government department to another about a joint decision that has not yet been made. Another example is a memorandum from an agency employee to his supervisor describing options for conducting the agency's business.
The purpose of the fifth exemption is to safeguard the deliberative policymaking process of government. The exemption encourages frank discussion of policy matters between agency officials by allowing supporting documents to be withheld from public disclosure. The exemption also protects against premature disclosure of policies before final adoption.
While the policy behind the fifth exemption is well accepted, the application of the exemption is complicated. The fifth exemption may be the most difficult FOIA exemption to understand and apply. For example, the exemption protects the policymaking process, but it does not protect purely factual information related to the policy process. Factual information must be disclosed unless it is inextricably intertwined with protected information about an agency decision.
These survey results fall within the realm of "factual information related to the policy process," as all information held by the government could be thus categorized. But FEMA doesn't have a basis in claiming these survey results must be secret to protect the decision-making process because public knowledge of the survey gives us little knowledge of the process itself. It's difficult to imagine FEMA's decision-making process being damaged by disclosure of whether or not people were satisfied by FEMA's services. Disclosure of the survey results would not harm frank discussion, nor would it lead to premature release of policies.
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