An agency may refuse to disclose an agency record that falls within
any of the FOIA's nine statutory exemptions. The exemptions protect
against the disclosure of information that would harm national defense
or foreign policy, privacy of individuals, proprietary interests of
business, functioning of the government, and other important interests.
A document that does not qualify as an "agency record" may
be denied because only agency records are available under the FOIA.
Personal notes of agency employees may be denied on this basis. However,
most records in the possession of an agency are "agency records"
within the meaning of the FOIA.
An agency may withhold exempt information, but it is not always required
to do so. For example, an agency may disclose an exempt internal memorandum
because no harm would result from its disclosure. However, an agency
is not likely to agree to disclose an exempt document that is classified
or that contains a trade secret.
When a record contains some information that qualifies as exempt,
the entire record is not necessarily exempt. Instead, the FOIA specifically
provides that any reasonably segregable portions of a record must
be provided to a requester after the deletion of the portions that
are exempt. This is a very important requirement because it prevents
an agency from withholding an
entire document simply because one line or one page is exempt.
Exemption 1: Classified Documents
The first FOIA exemption permits the withholding of properly classified
documents. Information may be classified in the interest of national
defense or foreign policy.
The rules for classification are established by the President and
not the FOIA or other law. The FOIA provides that, if a document has
been properly classified under a presidential Executive Order, the
document can be withheld from disclosure.
Classified documents may be requested under the FOIA. An agency can
review the document to determine if it still requires protection.
In addition, the Executive Order on Security Classification establishes
a special procedure for requesting the declassification of documents.
If a requested document is declassified, it can be released in response
to an FOIA request. However, a document that is declassified may be
still be exempt under other FOIA exemptions.
Exemption 2: Internal Personnel Rules and Practices
The second FOIA exemption covers matters that are related solely
to an agency's internal personnel rules and practices. As interpreted
by the courts, there are two separate classes of documents that are
generally held to fall within exemption two.
First, information relating to personnel rules or internal agency
practices is exempt if it is trivial administrative matter of no genuine
public interest. A rule governing lunch hours for agency employees
is an example.
Second, an internal administrative manual can be exempt if disclosure
would risk circumvention of law or agency regulations. In order to
fall into this category, the material will normally have to regulate
internal agency conduct rather than public behavior.
Exemption 3: Information Exempt Under Other Laws
The third exemption incorporates into the FOIA other laws that restrict
the availability of information. To qualify under this exemption,
a statute must require that matters be withheld from the public in
such a manner as to leave no discretion to the agency. Alternatively,
the statute must establish particular criteria for withholding or
refer to particular types of matters to be withheld.
One example of a qualifying statute is the provision of the Tax Code
prohibiting the public disclosure of tax returns and tax return information.
Another qualifying Exemption 3 statute is the law
designating identifiable census data as confidential. Whether a particular
statute qualifies under Exemption 3 can be a difficult
legal question.
Exemption 4: Confidential Business Information
The fourth exemption protects from public disclosure two types of
information: trade secrets and confidential business information.
A trade secret is a commercially valuable plan, formula, process,
or device. This is a narrow category of information. An example of
a trade secret is the recipe for a commercial food product.
The second type of protected data is commercial or financial information
obtained from a person and privileged or confidential. The courts
have held that data qualifies for withholding if disclosure by the
government would be likely to harm the competitive
position of the person who submitted the information. Detailed information
on a company's marketing plans, profits, or costs can qualify as confidential
business information. Information may also be withheld if disclosure
would be likely to impair the
government's ability to obtain similar information in the future.
Only information obtained from a person other than a government agency
qualifies under the fourth exemption. A person is an individual, a
partnership, or a corporation. Information that an agency created
on its own cannot normally be withheld under
exemption four.
Although there is no formal requirement under the FOIA, many agencies
will notify a submitter of business information that disclosure of
the information is being considered. The submitter then has an opportunity
to convince the agency that the
information qualifies for withholding. A submitter can also file suit
to block disclosure under the FOIA. Such lawsuits are generally referred
to as "reverse" FOIA lawsuits because the FOIA is being
used in an attempt to prevent rather than to require the disclosure
of information. A reverse FOIA lawsuit may be filed when the submitter
of documents and the government disagree whether the information is
confidential.
Exemption 5: Internal Government Communications
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
policy making 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 policy making 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.
Protection for the decision making process is appropriate only for
the period while decisions are being made. Thus, the fifth exemption
has been held to distinguish between documents that are pre-decisional
and therefore may be protected, and those which are post-decisional
and therefore not subject to protection. Once a policy is adopted,
the public has a greater interest in knowing the basis for the decision.
The exemption also incorporates some of the privileges that apply
in litigation involving the government. For example, papers prepared
by the government's lawyers can be withheld in the same way that papers
prepared by private lawyers for clients are not available through
discovery in civil litigation.
Exemption 6: Personal Privacy
The sixth exemption covers personnel, medical, and similar files
the disclosure of which would constitute a clearly unwarranted invasion
of personal privacy. This exemption protects the privacy interests
of individuals by allowing an agency to withhold intimate personal
data kept in government files. Only individuals have privacy interests.
Corporations and other legal persons have no privacy rights under
the sixth exemption.
The exemption requires agencies to strike a balance between an individual's
privacy interest and the public's right to know. However, since only
a clearly unwarranted invasion of privacy is a basis for withholding,
there is a perceptible tilt in favor of
disclosure in the exemption. Nevertheless, the sixth exemption makes
it harder to obtain information about another individual without the
consent of that individual.
The Privacy Act of 1974 also regulates the disclosure of personal
information about an individual. The FOIA and the Privacy Act overlap
in part, but there is no inconsistency. An individual seeking records
about himself or herself should cite both laws when making a request.
This ensures that the maximum amount of dissoluble information will
be released. Records that can be denied to an individual under the
Privacy Act are not necessarily exempt under the FOIA.
Exemption 7: Law Enforcement
The seventh exemption allows agencies to withhold law enforcement
records in order to protect the law enforcement process from interference.
The exemption was amended slightly in 1986, but it still retains six
specific subexemptions.
Exemption (7)(A) allows the withholding of a law
enforcement record that could reasonably be expected to interfere
with enforcement proceedings. This exemption protects an active law
enforcement investigation from interference through premature
disclosure.
Exemption (7)(B) allows the withholding of information
that would deprive a person of a right to a fair trial or an impartial
adjudication. This exemption is rarely used.
Exemption (7)(C) recognizes that individuals have
a privacy interest in information maintained in law enforcement files.
If the disclosure of information could reasonably be expected to constitute
an unwarranted invasion of personal privacy, the information is exempt
from disclosure. The standards for privacy protection in Exemption
6 and Exemption (7)(C) differ slightly.
Exemption (7)(C) protects against an unwarranted
invasion of personal privacy while Exemption 6 protects against clearly
a unwarranted invasion. Also, Exemption (7)(C) allows
the withholding of information that "could reasonably be expected
to" invade someone's privacy. Under Exemption 6,
information can be withheld only if disclosure "would" invade
someone's privacy.
Exemption (7)(D) protects the identity of confidential
sources. Information that could reasonably be expected to reveal the
identity of a confidential source is exempt. A confidential source
can include a state, local, or foreign agency or authority, or a private
institution that furnished information on a confidential basis. In
addition, the exemption protects information furnished by a confidential
source if the data was compiled by a criminal law enforcement authority
during a criminal investigation or by an agency conducting a lawful
national security intelligence investigation.
Exemption (7)(E) protects from disclosure information
that would reveal techniques and procedures for law enforcement investigations
or prosecutions or that would disclose guidelines for law enforcement
investigations or prosecutions if disclosure of the information could
reasonably be expected to risk circumvention of the law.
Exemption (7)(F) protects law enforcement information
that could reasonably be expected to endanger the life or physical
safety of any individual.
Exemption 8: Financial Institutions
The eighth exemption protects information that is contained in or
related to examination, operating, or condition reports prepared by
or for a bank supervisory agency such as the Federal Deposit Insurance
Corporation, the Federal Reserve, or similar agencies.
Exemption 9: Geological Information
The ninth FOIA exemption covers geological and geophysical information,
data, and maps about wells. This exemption is rarely used.
FOIA Exclusions
The 1986 amendments to the FOIA gave limited authority to agencies
to respond to a request without confirming the existence of the requested
records. Ordinarily, any proper request must receive an answer stating
whether there is any responsive information, even if the requested
information is exempt from disclosure.
In some narrow circumstances, acknowledgement of the existence of
a record can produce consequences similar to those resulting from
disclosure of the record itself. In order to avoid this type of problem,
the 1986 amendments established three "record exclusions."
The exclusions allow an agency to treat certain exempt records as
if the records were not subject to the FOIA. An agency is not required
to confirm the existence of three specific categories of records.
If these records are requested, the agency may respond that there
are no dissoluble records responsive to the request. However, these
exclusions do not broaden the
authority of any agency to withhold documents from the public. The
exclusions are only applicable to information that is otherwise exempt
from disclosure.
The first exclusion may be used when a request seeks information that
is exempt because disclosure could reasonably be expected to interfere
with a current law enforcement investigation (Exemption (7)(A)).
There are three specific prerequisites for the application of this
exclusion. First, the investigation in question must involve a possible
violation of criminal law.
Second, there must be reason to believe that the subject of the investigation
is not already aware that the investigation is underway. Third, disclosure
of the existence of the records -- as distinguished from the contents
of the records -- could reasonably be expected to interfere with enforcement
proceedings.
When all of these conditions exist, an agency may respond to an FOIA
request for investigatory records as if the records are not subject
to the requirements of the FOIA. In other words, the agency's response
does not have to reveal that it is conducting an investigation.
The second exclusion applies to informant records maintained by a
criminal law enforcement agency under the informant's name or personal
identifier. The agency is not required to confirm the existence of
these records unless the informant's status has been officially confirmed.
This exclusion helps agencies to protect the identity of confidential
informants. Information that might
identify informants has always been exempt under the FOIA.
The third exclusion only applies to records maintained by the Federal
Bureau of Investigation which pertain to foreign intelligence, counterintelligence,
or international terrorism. When the existence of these types of records
is classified, the FBI may treat the records as not subject to the
requirements of FOIA.
This exclusion does not apply to all classified records on the specific
subjects. It only applies when the records are classified and when
the existence of the records is also classified. Since the underlying
records must be classified before the exclusion is relevant, agencies
have no new substantive withholding authority.
In enacting these exclusions, congressional sponsors stated that it
was their intent that agencies must inform FOIA requesters that these
exclusions are available for agency use. Requesters who believe that
records were improperly withheld because of the exclusions can seek
judicial review.
* Reprinted from A Citizen's Guide on Using the Freedom of Information
Act and the Privacy Act of 1974 to Request Government Records, First
Report by The House Committee on Government Operations, Subcommittee
on Information, Justice, Transportation, and Agriculture, 1993 Edition,
House Report 103-104, 103rd Congress, 1st Session, Union Calendar No.
53