Exemptions to FOIA Disclosure

Federal agencies frequently deny Freedom of Information Act requests because of various exemptions that protect certain information from disclosure to the public.[1] These exemptions include:

National security information protected by an executive order[2]
Information regarding the internal personnel rules and practices of agencies
Information protected by other statutes
Confidential business information
“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”
Personnel, medical, and similar personal files
Law enforcement records
Agency records regarding financial institutions
Geological and geophysical information regarding wells.[3]

Although the exemptions are listed in a statute, their interpretation is less than straightforward. Agencies may redact portions of records and then produce the redacted records, indicating which exemptions apply to the blacked-out information.[4] Of course, this discretion can result in over-redaction of information that is not protected.

Indeed, each agency subject to FOIA requests and even each employee of the same agency responds a little differently to requests.[5] Frequently, agencies improperly withhold information.[6] A recent court decision attempts to combat one tactic agencies have used to prevent disclosure: redacting supposedly non-responsive information from records that themselves are responsive to an FOIA request.[7]

One way to combat the inconsistencies in agency approaches to requests is to appeal redactions or “no documents” responses.[8] Statistics show that approximately one-third of requesters succeed in getting more information released on appeal.[9]

— By Julia Damron, Esq., Barnes Law

Julia Damron is an associate attorney with Barnes Law, licensed to practice law in California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See http://www.barneslawllp.com/introduction-foia-requests/.

[2] See, e.g., “Classification of Government Information in the Interest of National Security”, National Security Archive, http://nsarchive.gwu.edu/nsa/foia/classification.htm, last accessed Aug. 7, 2016.

[3] 5 U.S.C. § 552(b)(1)-(9). Some agencies, such as the Equal Employment Opportunity Commission, provide the public with details on which exemptions are commonly invoked in response to requests to that agency. “Summary of Exemptions”, EEOC, https://www.eeoc.gov/eeoc/foia/hb-11.cfm, last accessed Aug. 7, 2016.

[4] 5 U.S.C. § 552(b).

[5] See, e.g., http://www.barneslawllp.com/researcher-sues-fbi-blocked-foia-requests/ ; “Archive’s Audits of FOIA Information”, National Security Archive, http://nsarchive.gwu.edu/nsa/foia/audits.htm, last accessed Aug. 7, 2016.

[6] Harper, Lauren, “Bursts of Cloudiness, Like Reports that Appeals Reveal Improper Initial Withholdings in 1-3 Cases, Don’t Darken Sunshine Week Optimism”, Unredacted, March 19, 2015, https://nsarchive.wordpress.com/2015/03/19/bursts-of-cloudiness-like-reports-that-appeals-reveal-improper-initial-withholdings-in-1-3-cases-dont-darken-sunshine-week-optimism-frinformsum-3192015/.

[7] Harper, Lauren, “DOJ Arguments ‘Inconsistent with the Purpose of the FOIA’ and More”, Unredacted, Aug. 4, 2016, https://nsarchive.wordpress.com/2016/08/04/doj-arguments-inconsistent-with-the-purpose-of-the-foia-and-more-frinformsum-842016/.

[8] Morisy, Michael, “Requester’s Voice: Nate Jones”, Muckrock, Feb. 19, 2016, https://www.muckrock.com/news/archives/2016/feb/19/requesters-voice-nate-jones/.

[9] Harper, “Bursts of Cloudiness”, supra.