The FOIA maintains nine exemptions to the general presumption
of mandatory disclosure. 5 U.S.C. § 552(b)(1)-(9). Generally, Congress
intended the exemptions to protect against disclosure of information which
would substantially harm national defense or foreign policy, individual
privacy interests, business proprietary interests, and the efficient operation
of governmental functions. An agency has the authority to construe the
exemptions as discretionary rather than mandatory when no harm would result
from disclosure of the requested information. Chrysler Corp. v. Brown,
441 U.S. 281, 293 (1979). Consequently, even if a requested document falls
within one of the nine exemptions, the agency should be asked to release
it anyway as an exercise of its discretionary powers. Moreover, "[t]hese
exemptions are specifically made exclusive . . . and must be narrowly
construed." Dept. of the Air Force v. Rose, 425 U.S. 352, 361 (1976).
Additionally, remember that a request for a document which does not qualify
as an "agency record" may be denied because
only agency records are available under the FOIA.
When a requested document contains some information
which falls under one of the exemptions, the FOIA requires that all non-exempt
portions of the record must still be released. The Act expressly mandates
that any "reasonably segregable portion" of a record must be disclosed
to a requester after the redaction (the deletion of part of a document
to prevent disclosure of material covered by an exemption) of the parts
which are exempt. 5 U.S.C. § 552(b). This is a very important aspect of
FOIA because it prohibits an agency from withholding an entire document
merely because one line, one page or one picture are exempt.
The ease with which records in electronic format can
be redacted makes impossible the determination of whether only a few words
or many pages have been withheld by an agency. This problem was addressed
by the 1996 amendments to the FOIA which mandate that agencies identify
the location of deletions in the released portion of the record and-where
technologically feasible-to show the deletion at the place on the record
where the deletion was made, unless including that indication would harm
an interest protected by an exemption.
THE NINE FOIA DISCLOSURE EXEMPTIONS ARE AS FOLLOWS:
- National defense or foreign policy information properly classified
pursuant an Executive Order. 5 U.S.C. § 552(b)(1).
This exemption allows the withholding of properly
classified documents. The basis for classification is expressly limited
to protecting an interest of national defense or foreign policy. The
rules for classification are established and periodically updated by
the President. They are not a product of the FOIA or other law. Under
exemption one, if a document has been properly classified under a Presidential
Executive order, the document can be withheld from disclosure.
However, classified documents may still be requested
under the FOIA. An agency may then review the document to determine
if it still requires protection. The Executive order on security classification
establishes a special procedure for requesting the declassification
of documents. The current Executive order on security classification
is Executive Order 12958, issued by President Clinton on Apr. 17, 1995.
The text of the order can be found at 60 Federal Register 19825-43 and
found online by clicking here.
Remember that even if a requested document is declassified, it still
may be exempt under other FOIA exemptions.
- Documents "related solely to the internal personnel rules and practices
of an agency." 5 U.S.C. § 552(b)(2).
The courts have held that there are two separate
classes of documents that generally fall within the ambit of exemption
2. First, information relating to personnel rules or internal agency
practices is exempt if it can reasonably be described as a trivial administrative
matter of no genuine public interest, such as a rule establishing when
agency workers can take sick leave. In Department of the Air Force
v. Rose, 425 U.S. 352 (1976), the Supreme Court construed Exemption
2's somewhat ambiguous language as protecting internal agency matters
so routine or trivial that they could not be "subject to . . . a genuine
and significant public interest." Id. at 369. The Court declared
that Exemption 2 was intended to relieve agencies of the burden of assembling
and providing access to any "matter in which the public could not reasonably
be expected to have an interest." Id. at 369-70. Second, an internal
administrative manual for instance, might be exempt if its 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.
The boundaries of Exemption 2 were described by
the Court of Appeals for the District of Columbia as follows:
First, the material withheld should fall within the terms
of the statutory language as a personnel rule or internal practice of
the agency. Then, if the material relates to trivial administrative
matters of no genuine public interest, exemption would be automatic
under the statute. If withholding frustrates legitimate public interest,
however, the material should be released unless the government can show
that disclosure would risk circumvention of lawful agency regulation
Church of Scientology v. Smith, 721 F.2d 828, 830-31 n.4 (D.C.
- Documents "specifically exempted from disclosure by statute" other
than FOIA, but only if the other statute's disclosure prohibition is
absolute. 5 U.S.C. § 552(b)(3).
This exemption simply incorporates into FOIA other
laws which restrict the availability of information. Exemption 3 allows
the withholding of information prohibited from disclosure by another
statute only if one of two disjunctive requirements are met: the statute
in question either "(A) requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue, or
(B) establishes particular criteria for withholding or refers
to particular types of matters to be withheld." A statute thus falls
within the exemption's coverage if it satisfies any one of its disjunctive
requirements. See Long v. IRS, 742 F.2d 1173, 1178 (9th Cir.
1984); Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir.
1979); American Jewish Congress v. Kreps, 574 F.2d 624, 628 (D.C.
Cir. 1978). See generally 5 U.S.C. § 552(e)(1)(A)(ii) (provision
of Electronic Freedom of Information Act Amendments of 1996 requiring
agencies to list Exemption 3 statutes upon which they rely each year
in their annual FOIA reports, beginning with reports for Fiscal Year
1998). One example of a qualifying statute is the provision of the Code
prohibiting the public disclosure of tax returns and tax return information.
See, 26 U.S.C. Sec. 6103. Another qualifying exemption 3 statute
is the law designating identifiable census data as confidential. See,
13 U.S.C. Sec. 9.
- Documents which would reveal "[t]rade secrets and commercial or financial
information obtained from a person and privileged or confidential."
5 U.S.C. § 552(b)(4).
Exemption 4 protects from public disclosure two types
of information: (1) trade secrets; and (2) information that is (a) commercial
or financial, and (b) obtained from a person, and (c) privileged
or confidential. Congress intended this exemption to protect the interests
of both the government and submitters of information. Its existence encourages
submitters to voluntarily furnish useful commercial or financial information
to the government and it correspondingly provides the government with
an assurance that such information will be reliable.
A trade secret is a commercially valuable plan,
formula, process, or device. This is a narrow and relatively easily
recognized category of information. It is "a secret, commercially valuable
plan, formula, process, or device that is used for the making, preparing,
compounding, or processing of trade commodities and that can be said
to be the end product of either innovation or substantial effort." Public
Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C.
Cir. 1983). An example of a trade secret might be the formula of a gasoline
additive. The second form of protected data is "commercial or financial
information obtained from a person and privileged or confidential."
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.
(a) Generally, the commercial/financial nature of a document is not
difficult to ascertain, consequently, the main issue in contest is whether
the information is privileged or confidential.
(b) A leading case on this aspect of Exemption 4 sets out the test for
exempting commercial information from FOIA disclosure as follows:
"Commercial or financial matter is "confidential" for purposes
of [Exemption 4] if disclosure of the information is likely to have
either of the following effects: (1) to impair the Government's ability
to obtain necessary information in the future; or (2) to cause substantial
harm to the competitive position of the person from whom the information
was obtained." National Parks and Conservation Ass'n v. Morton,
498 F.2d 765, 770 (D.C.Cir. 1974); see also Frasee v. U.S. Forest
Service, 97 F.3d 367, 371 (9th Cir. 1996).
This review has been further bifurcated in the analysis set forth in Critical
Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871 (D.C.Cir.
1992) (en banc). In Critical Mass:
"the D.C. Circuit reaffirmed the two-prong National Parks
confidentiality test, holding that the substantial competitive harm
test was to be applied to information mandatorily provided to
the government. The court then established a separate test to be applied
to information voluntarily submitted to the government. The court
concluded that information that is voluntarily provided to the Government
is 'confidential' for the purpose of Exemption 4 if it is of a kind
that would customarily not be released to the public by the person from
whom it was obtained."
Frasee v. U.S. Forest Service, 97 F.3d at 372. However, the
Ninth Circuit has expressly refused to incorporate this two level test
as precedent. Id. Consequently, the more difficult to satisfy (for the
agency) "substantial competitive harm" test remains the law applicable
to this Circuit.
- Documents which are "inter-agency or intra-agency memorandum or letters"
which would be privileged in civil litigation. 5 U.S.C. § 552(b)(5).
(a) Exemption 5 is an exemption very frequently invoked
against public interest requesters because the nature of such party's
intended uses are usually to get information regarding the agency's
processes and conclusions. The exemption was intended to incorporate
common-law privileges against discovery. Of all such privileges, the
one most frequently encountered by public interest requesters is based
on the concept of "executive" privilege which protects recommendations
and advice which are part of the "deliberative process" involved in
governmental decision-making. The rationale being to protect the integrity
of agency decision-making by encouraging both full and frank discussions
of policy proposals and to prevent premature disclosure of policies
under review. The exemption also incorporates other of privileges
which would 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. However, this incorporation
of discovery privileges requires that a privilege be applied in the
FOIA context as it exists in the discovery context. See United
States Dep't of Justice v. Julian, 486 U.S. 1, 13 (1988) (holding
that presentence report privilege, designed to protect report subjects,
cannot be invoked against them as first-party requesters). Thus, the
precise contours of a privilege, with regard to applicable parties
or types of information which are protectible, are also incorporated
into the FOIA. Id.
(b) Courts have resolved to distinguish "pre-decisional" documents,
which fall within the protections of Exemption 5, and "post-decisional"
documents, which must be disclosed. F.T.C. v. Warner Comm. Inc.,
742 F2d 1156, 1161 (9th. Cir. 1984); NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 151-153 (1975) (memos directing agency counsel criteria
and actions involved in decision to file complaints are not final
dispositions of issue, and are thus protected, while final opinions
or dispositions can never be protected by Exemption 5).
(c) However, even if a document is pre-decisional, some courts have
upheld a distinction between "materials reflecting deliberative or
policy-making process on the one hand, and purely factual, investigative
matters on the other," the exemption protects the former, not the
latter. EPA v. Mink, 410 U.S. 73, 89 (1973). Those portions
of a document which are not exempt must be disclosed unless they are
"inextricably intertwined" with the exempt portions. Ryan v. Dept.
of Justice, 617 F. 2d 781, 790-91 (D.C. Cir. 1980).
(d) The Ninth Circuit has rejected a major component of the fact/opinion
distinction by embracing a "process-oriented" rule that "to the extent
that they reveal the mental process of decisionmakers," factual materials
are not automatically outside the ambit of exemption 5. National
Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114, 1119
(9th. Cir. 1988); see also Assembly of the State of California
v. U.S. Dept. of Comm., 968 F2d. 916, 921 (9th. Cir. 1992). As
almost all agency fact-finding may be construed in some manner to
reveal aspects of the decision-making process, this fuzzy rationale
creates an exception which threatens to swallow the rule.
- Documents which are "personnel and medical and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal
privacy." 5 U.S.C. § 552(b)(6).
This exemption protects the privacy interests of
individuals by allowing an agency to withhold personal data kept in
government files. Keep in mind that by the plain terms of the statute,
only individuals can have privacy interests. By definition, corporations
and other "legal persons" can have no privacy rights under the Exemption
6 because there can be no objective expectation attaching against
an "unwarranted invasion of personal privacy." Occasionally, agencies
or business submitters of information will assert Exemption 6 when,
in fact, the proper analysis should sound under Exemption 4.
(a) The Supreme Court has reviewed the application of this
exemption. It noted: First, in evaluating whether a request for information
lies within the scope of a FOIA exemption, such as Exemption 6, that
bars disclosure when it would amount to an invasion of privacy that
is to some degree 'unwarranted, 'a court must balance the public interest
in disclosure against the interest Congress intended the [e]xemption
In other words, the requested materials must in some way illuminate
"what the government is 'up to'" in order to justify disclosure. A request
for information from the government which illustrates what you neighbor,
or business competitor, is "up to" will not meet the public interest
balancing test under exemption 6. 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. "In the Act generally, and particularly
under Exemption (6), there is a strong presumption in favor of disclosure."
Local 598 v. Department of Army Corps of Engineers, 841 F.2d
1459, 1463 (9th. Cir. 1988) (emphasis added). In that case, the Ninth
Circuit reviewed the context of applicable Exemption 6 case law:
Department of Defense v. F.L.R.A., 114 S.Ct. 1006, 1012 (1994).
(b) The Court continued:
Second, the only relevant "public interest in disclosure" to be weighed
in this balance is the extent to which disclosure would serve the
"core purpose of the FOIA," which is "contribut[ing] significantly
to public understanding of the operations or activities of the government.
The Freedom of Information Act embodies a strong policy
of disclosure and places a duty to disclose on federal agencies. As
the district court recognized, 'disclosure, not secrecy, is the dominant
objective of the Act.' Department of the Air Force v. Rose,
425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). 'As
a final and overriding guideline courts should always keep in mind
the basic policy of the FOIA to encourage the maximum feasible public
access to government information....' Nationwide Bldg. Maintenance,
Inc. v. Sampson, 559 F.2d 704, 715 (D.C.Cir.1977). As a consequence,
the listed exemptions to the normal disclosure rule are to be construed
narrowly. See Rose, 425 U.S. at 361, 96 S.Ct. at 1599. This is
particularly true of Exemption (6). Exemption (6) protects only against
disclosure which amounts to a 'clearly unwarranted invasion of personal
privacy.' That strong language 'instructs us to 'tilt the balance
[of disclosure interests against privacy interests] in favor of disclosure.'"
Id. (emphasis added), citing Washington Post Co. v. Department
of Health and Human Servs., 690 F.2d 252, 261 (D.C.Cir.1982) (quoting
Ditlow v. Shultz, 517 F.2d 166, 169 (D.C. Cir.1975)).
Moreover, the Privacy Act of 1974 regulates the disclosure
of personal information about an individual. The FOIA and the Privacy
Act partially overlap in this regard, but there is no real inconsistency.
An individual seeking records about herself should cite both laws when
making a request. This will ensure that the maximum amount of disclosable
information will be released. Also remember that records which can be
denied to an individual under the Privacy Act are not necessarily exempt
under the FOIA.
- Documents which are "records or information compiled for law enforcement
purposes," but only if one or more of six specified types of harm would
result. 5 U.S.C. § 552(b)(7).
Congress intended for Exemption 7 to allow 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) provides for the withholding
of a law enforcement record the disclosure of which would reasonably
be expected to interfere with enforcement proceedings. This exemption
protects an active law enforcement investigation from interference
through premature disclosure. Therefore, determining the applicability
of this Exemption 7(A) requires a two-step analysis focusing on (1)
whether a law enforcement proceeding is pending or prospective and
(2) whether release of information about it could reasonably be expected
to cause some articulable harm. See, e.g., NLRB v. Robbins Tire
& Rubber Co., 437 U.S. 214, 224 (1978) (holding that government
must show how records "would interfere with a pending enforcement
Exemption (7)(B) allows the withholding of information
that would deprive a person of a right to a fair trial or an impartial
adjudication. It is aimed at preventing prejudicial pretrial publicity
that could impair a court proceeding. A reviewing court established
a two part test of the applicability of this rarely used exemption:
"(1) that a trial or adjudication is pending or truly imminent; and
(2) that it is more probable than not that disclosure of the material
sought would seriously interfere with the fairness of those proceedings."
Washington Post Co. v. United States Department of Justice.
863 F.2d 96, 101-02 (D.C. Cir. 1988).
Exemption (7)(C) recognizes that individuals have
a privacy interest in information maintained in law enforcement files.
It is the law enforcement counterpart to Exemption 6, providing protection
for law enforcement information the disclosure of which "could reasonably
be expected to constitute an unwarranted invasion of personal privacy."
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 a "clearly 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.
The D.C. Court of Appeals held in SafeCard Services v. SEC,
926 F.2d 1197 (D.C. Cir. 1991), that, based upon the traditional recognition
of the strong privacy interests inherent in law enforcement records
and the logical ramifications of United States Department of Justice
v. Reporters Committee for Freedom of the Press, 489 U.S. 749
(1989) the "categorical withholding" of information that identifies
third parties in law enforcement records will ordinarily be appropriate
under Exemption 7(C).926 F.2d at 1206, see, e.g., Fiduccia
v. United States Dep't of Justice, 185 F.3d 1035, 1047-48 (9th
Cir. 1999) (categorically protecting records concerning FBI searches
of house of two named individuals); Nation Magazine v. United States
Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995) (restating that
those portions of records in investigatory files which would reveal
subjects, witnesses, and informants in law enforcement investigations
are categorically exempt (citing SafeCard)).
Exemption (7)(D) protects the identity of confidential
sources. Information which could reasonably be expected to reveal
the identity of a confidential source is exempt from disclosure. It
has historically been recognized that Exemption 7(D) provides the
most comprehensive protection of all of the FOIA's law enforcement
exemptions. The courts have repeatedly indicated their appreciation
that a "robust" Exemption 7(D) is important to ensure that "confidential
sources are not lost through retaliation against the sources for past
disclosure or because of the sources' fear of future disclosure."
Brant Constr. Co. v. EPA, 778 F.2d 1258, 1262 (7th Cir. 1985;
see, also., Ortiz v. HHS, 70 F.3d 729, 732 (2d Cir. 1995) (stating
that "Exemption 7(D) is meant to . . . protect confidential sources
from retaliation that may result from the disclosure of their participation
in law enforcement activities"); McDonnell v. United States,
4 F.3d 1227, 1258 (3d Cir. 1993) (finding that "goal of Exemption
7(D) [is] to protect the ability of law enforcement agencies to obtain
the cooperation of persons having relevant information and who expect
a degree of confidentiality in return for their cooperation"); Providence
Journal Co. v. United States Dep't of the Army, 981 F.2d 552,
563 (1st Cir. 1992) (explaining that Exemption 7(D) is intended to
avert "drying-up" of sources); Nadler v. United States Dep't of
Justice, 955 F.2d 1479, 1486 (11th Cir. 1992) (observing that
"fear of exposure would chill the public's willingness to cooperate
with the FBI . . . [and] would deter future cooperation" (citing Irons
v. FBI, 880 F.2d 1446, 1450-51 (1st Cir. 1989))); Shaw v. FBI,
749 F.2d 58, 61 (D.C. Cir. 1984) (holding that purpose of Exemption
7(D) is "to prevent the FOIA from causing the 'drying up' of sources
of information in criminal investigations"). A confidential source
might include a State, local, or foreign agency or authority, or a
private institution that furnished information on a confidential basis.
Sources' identities are protected wherever they have provided information
under either an express promise of confidentiality-see Rosenfeld
v. United States Dep't of Justice, 57 F.3d 803, 814 (9th Cir.
1995) ("[A]n express promise of confidentiality is 'virtually unassailable'
[and is] easy to prove: 'The FBI need only establish the informant
was told his name would be held in confidence.'" (quoting Wiener
v. FBI, 943 F.2d 972, 986 (9th Cir. 1991)))-or "under circumstances
from which such an assurance could be reasonably inferred." S. Conf.
Rep. No. 93-1200, at 13 (1974) reprinted in 1974 U.S.C.C.A.N. 6267,
6291. In 1993, the Supreme Court made clear that not all sources furnishing
information in the course of criminal investigations are entitled
to a "presumption" of confidentiality. United States Department
of Justice v. Landano, 508 U.S. 165, 175 (1993). Rather, the Court
held that source confidentiality must be determined on a case-by-case
basis, id. at 179-80, noting particularly that such a presumption
should not be applied automatically to cooperating law with enforcement
agencies. Id. at 176. Additionally, the Exemption 7(D) 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
which 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
which could reasonably be expected to endanger the life or physical
safety of any individual. Courts have interpreted Exemption 7(F) as
affording protection of the "names and identifying information of
. . . federal employees, and third persons who may be unknown" to
the requester in connection with particular law enforcement matters.
Luther v. IRS, No. 5-86-130, slip op. at 6 (D. Minn. Aug. 13,
1987). Significantly, Exemption 7(F) protection has been held to remain
applicable even after a law enforcement officer subsequently retired.
Moody v. DEA, 592 F. Supp. 556, 559 (D.D.C. 1984).
- Documents which are related to specified reports prepared by, on behalf
of, or for the use of agencies which regulate financial institutions.
5 U.S.C. § 552(b)(8).
Exemption 8 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.
- Documents which would reveal oil well data. 5 U.S.C. § 552(b)(9).
The ninth FOIA exemption covers geological and
geophysical information, data, and maps about wells. It is rarely