FOIA Exemptions

There are nine exemptions to the Freedom of Information Act; each allows agencies to withhold specific types of information.

Exemption 1 covers information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552 (b)(1).

The types of information that may be withheld under Exemption 1, pursuant to Executive Order 13526, signed by President Barack Obama on December 29, 2009, are:

• Military plans, weapons systems or operations
• Foreign government information
• Intelligence activities (including covert action), intelligence sources or methods, or cryptology
• Foreign relations or foreign activities of the United States, including confidential sources
• Scientific, technological or economic matters relating to the national security
• U.S. Government programs for safeguarding nuclear materials or facilities
• Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans or protection services relating to the national security
• The development, production or use of weapons of mass destruction

Exemption 2 covers records that are “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552 (b)(2).

• On March 7, 2011, the United States Supreme Court issued a landmark opinion pertaining to Exemption 2 that significantly narrowed the scope of this exemption. See Milner v. Department of the Navy, 131 S.Ct. 1259, 562 U.S. (2011).  The Supreme Court limited the scope of Exemption 2 to encompass only records relating to issues of employee relations and human resources. Id. at 1271.  The Court held that all the rules and practices covered by this exemption “share a critical feature: They concern the conditions of employment in federal agencies—such matters as hiring and firing, work rules and discipline, compensation and benefits.” Id.

Exemption 3 incorporates nondisclosure provisions contained in other Federal statutes. See 5 U.S.C. § 552(b)(3). Agencies invoked 150 such statutes in the year ending September 30, 2010, according to the Department of Justice (DOJ). Federal district courts, Federal appellate courts or the U.S. Supreme Court have upheld 67 Exemption 3 statutes, including two in which another Federal court found the statutes not to qualify as Exemption 3 statutes, according to DOJ. Some examples of information exempted from disclosure under Exemption 3 include:

• Financial disclosure information pertaining to certain government employees (5 U.S.C. app. § 107(a)) 
• Certain census data (13 U.S.C. §§ 8(b), 9(a))
• Information pertaining to the nature and location of certain archaeological resources (16 U.S.C.§ 470hh)
• Wiretap requests and the contents of any wire, oral or electronic communication obtained through wiretaps (18 U.S. C. §§ 2510-20)
• Contractor proposals possessed or controlled by a Federal agency and that have not been incorporated into contracts (41 U.S.C. § 253b(m)(1))
• Certain records pertaining to grand jury proceedings (Federal Rules of Criminal Procedure 6(e))
• Tax return information (26 U.S.C. § 6103)

Exemption 4 protects trade secrets and commercial or financial information that is obtained from a person and that is privileged or confidential. See 5 U.S.C. § 552(b)(4). The exemption is intended to protect the interests of both the government and individuals and companies who submit commercial or financial information to the government. Executive Order 12600 describes the government’s notification procedures when Exemption 4 applies.

Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552 (b)(5). Courts have interpreted this exemption to incorporate privileges recognized in civil discovery.  Even though discovery is intended to promote the exchange of information to avoid surprises at trial, privileges allow one party in litigation not to disclose certain information to the other party. Privileges often used by the government include the deliberative process privilege (referred to by some courts as “executive privilege”), the attorney-work product privilege and the attorney-client privilege.

Exemption 6 protects information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552 (b)(6).

Exemption 7 protects from disclosure “records or information compiled for law enforcement purposes” if disclosure would cause one or more of the harms enumerated in the six sub-sections of this exemption. 5 U.S.C. § 552 (b)(7)  Information may be withheld if the disclosure of such information:
(A) could reasonably be expected to interfere with enforcement proceedings,

(B) would deprive a person of a right to a fair trial or an impartial adjudication,

(C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,

(D) could reasonably be expected to disclose the identity of a confidential source, including a State, local or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting lawful national security intelligence investigation, information furnished by a confidential source,

(E) would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law,

(F) could reasonably be expected to endanger the life or physical safety of any individual.
5 U.S.C.§ § 552 (b)(7)(A)-(F).

Exemption 8 protects information “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.” 5 U.S.C. § 552 (b)(8).

Exemption 9 allows agencies to withhold “geological and geophysical information and data, including maps, concerning wells.” 5 U.S.C. § 552 (b)(9).