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Exemptions

(Reasons Access May Be Denied Under the FOIA)

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.