- metadata: - source: https://www.muckrock.com/news/archives/2018/mar/05/foia-exemption-b5/ --- # Nine Days of FOIA Exemptions: b(5) • MuckRock > ## Excerpt > With Sunshine Week just around the corner, we wanted to count down the days to our favorite time of year with a closer look at what's going on behind the black bars: the nine federal FOIA exemptions. Today, everyone's least favorite exemption: b(5), the "Withhold It Because You Want To" exemption. --- March 5, 2018 The dreaded “Withhold It Because You Want To” exemption With Sunshine Week just around the corner, we wanted to [count down the days](https://www.muckrock.com/tags/nine-days-of-foia-exemptions/) to our favorite time of year with a closer look at what’s going on behind the black bars: [the nine federal FOIA exemptions](https://www.muckrock.com/news/archives/2016/jul/15/coping-rejection-guide-federal-foia-exemptions/). Today, everyone’s least favorite exemption: b(5), the “Withhold It Because You Want To” exemption. ## **Exemption Name**: [b(5)](https://www.muckrock.com/place/united-states-of-america/exemption/b5-186/)  **AKA** : “The Withhold It Because You Want To Exemption” **Common Reactions**: “More Like b(s) exemption, amirite?” / “Hey [Nate](https://www.muckrock.com/news/archives/2018/mar/05/foia-exemption-b5/@NSANate), they did it again!” **What it says:** “Inter-agency or intra-agency memorandums or letters that would not be available by law to a party.” **What that means:** The Justice Department’s [own b(5) guideline concedes](https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/exemption5_1.pdf) that b(5) has rather “opaque language” that in _theory_ should apply to the deliberative process, but in practice ends up being a bit more like this: b(5) is a four-letter word in the FOIA community - that [“Withhold It Because You Want To” exemption](https://nsarchive.wordpress.com/2014/03/27/the-next-foia-fight-the-b5-withold-it-because-you-want-to-exemption/) line comes from an article from the National Security Archive’s Nate Jones that sums up the rampant use and abuse of b(5). **Who uses it?** That “opaque language” doesn’t stop the DOJ from applying b(5) liberally, and its components are [among the exemptions worst abusers](https://www.techdirt.com/articles/20140327/14203026715/foia-exemption-b5-means-never-having-to-let-redaction-opportunity-slip.shtml). **Silliest example of its use:** The Federal Electoral Commission once [cited b(5) to justify withholding its guidelines for the use of b(5)](https://www.muckrock.com/news/archives/2014/feb/26/fec-tried-withhold-its-foia-exemption-guidelines-u/) - only to back down when it turned out it had already posted said guidelines on its website. And, of course, there’s this gem.  **What you can do about it:** Use that arbitrariness to your advantage. Ask the officer to explain why b(5) applies exactly, and then sit back and enjoy the logical contortion act. More specifically, the [Reporters Committee for the Freedom of the Press](https://www.rcfp.org/federal-foia-appeals-guide/exemption-5) suggests: > The U.S. Supreme Court has ruled that to qualify for Exemption 5 protections, a document must satisfy two conditions. First, “its source must be a Government agency.” Second, the document “must fall within the ambit of a privilege against discovery” recognized under Exemption 5. When possible, you should raise challenges on both grounds. **Any other resources?** [FOIA Wiki](https://foia.wiki/wiki/Exemption_5) has some great guidance, and if you’re trying to get anything historical (25 years or older) but an agency’s using b(5) to withhold it, let the [NSArchive know](https://nsarchive.gwu.edu/). This is their jam. _Happy appeals! Any other b(5) tips we left out? Let us know [via email](mailto:[email protected]), [on Twitter](https://twitter.com/muckrock), or [on Facebook](https://www.facebook.com/muckrock/)._ ___ _Image via [Obama White House Archives](https://www.flickr.com/photos/obamawhitehouse/4033330182/in/album-72157622593716998/)_