(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
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
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
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
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.
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.