Overview of FOIA Exemptions. Exemption 1 5 U.S.C. § 552(b)(1) protects material that is properly...

Overview of FOIA ExemptionsOverview of FOIA Exemptions

Exemption 1Exemption 1

5 U.S.C. 5 U.S.C. § 552(b)(1) protects material that is § 552(b)(1) protects material that is properly classified in the interests of national properly classified in the interests of national defense or foreign policydefense or foreign policy

Agencies mark certain material as Agencies mark certain material as “classified” pursuant to Executive Order “classified” pursuant to Executive Order 12,958, as amended on March 25, 200312,958, as amended on March 25, 2003

May classify after receipt of FOIA request-May classify after receipt of FOIA request-

§ 1.7(c) (procedures to follow)§ 1.7(c) (procedures to follow)


Executive Order 12958, as amended:Executive Order 12958, as amended: Substantive Criteria:Substantive Criteria:

– Seven classification categoriesSeven classification categories– New additions to classification categories:New additions to classification categories:

““Transnational Terrorism”--Transnational Terrorism”--§§ 1.4(e) & (g);§§ 1.4(e) & (g); ““Infrastructures”--§ 1.4(g);Infrastructures”--§ 1.4(g); ““Weapons of mass destruction”--§ 1.4(h)Weapons of mass destruction”--§ 1.4(h) Presumption for classification of “Foreign Presumption for classification of “Foreign

Government Information”--§1.1(c)Government Information”--§1.1(c)


Three levels of classification: top secret, Three levels of classification: top secret, secret, and confidentialsecret, and confidential

Pertain to the degree of damage that will Pertain to the degree of damage that will result from an unauthorized disclosure of the result from an unauthorized disclosure of the informationinformation– Procedural Criteria:Procedural Criteria:

For a document to be properly classified, someone For a document to be properly classified, someone with original classification authority has to mark it at with original classification authority has to mark it at the appropriate levelthe appropriate level


““For Official Use Only” (FOUO) does not For Official Use Only” (FOUO) does not automatically mean that a document is classified.automatically mean that a document is classified.

Exceptions to Classification:Exceptions to Classification: to conceal violations of law, inefficiency or to conceal violations of law, inefficiency or

administrative error;administrative error;

to prevent embarrassment to a person, organization or to prevent embarrassment to a person, organization or agency;agency;

to prevent or delay release of information that does not to prevent or delay release of information that does not require protection in the interest of national securityrequire protection in the interest of national security


- Deference to agency expertise- Deference to agency expertise

- Glomar Response:- Glomar Response:– Provides for an agency to refuse to confirm or deny the Provides for an agency to refuse to confirm or deny the

existence or nonexistence of requested information existence or nonexistence of requested information whenever its existence or nonexistence is itself whenever its existence or nonexistence is itself classifiedclassified

Compilation/mosaic principleCompilation/mosaic principle– This is the concept that apparently harmless pieces of This is the concept that apparently harmless pieces of

information, when assembled together, could reveal a information, when assembled together, could reveal a damaging picturedamaging picture


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

Two aspects to Exemption 2:Two aspects to Exemption 2:– ““Low 2” and “High 2”Low 2” and “High 2”

““Low 2” covers trivial information of no public interest, Low 2” covers trivial information of no public interest, such as awards, travel expenses, parking facility such as awards, travel expenses, parking facility rules, file numbers, data processing notations rules, file numbers, data processing notations (Senate Intent)(Senate Intent)


““High 2” covers more substantive High 2” covers more substantive information, such as operating rules and information, such as operating rules and guidelines; manuals for investigators, guidelines; manuals for investigators, auditors and examiners; computer security auditors and examiners; computer security plans; examination questions and answers; plans; examination questions and answers; homeland security-related informationhomeland security-related information

(House intent)(House intent)


Threshold Requirements:Threshold Requirements:– Information must be Information must be predominantly internalpredominantly internal in in

nature--this means that the information is not nature--this means that the information is not widely disseminatedwidely disseminated

– Information relates to personnel rules and Information relates to personnel rules and practices of an agencypractices of an agency

– Courts willing to stretch this threshold when Courts willing to stretch this threshold when dealing with law enforcement materialdealing with law enforcement material


5 U.S.C. 5 U.S.C. § 552(b)(3) incorporates the § 552(b)(3) incorporates the disclosure prohibitions that are contained in disclosure prohibitions that are contained in various other federal statutesvarious other federal statutes

Exemption 3’s protection is generally Exemption 3’s protection is generally triggered only by federal statutes NOT by triggered only by federal statutes NOT by Executive Orders or regulationsExecutive Orders or regulations


Exemption 3 protects information that is Exemption 3 protects information that is prohibited from disclosure by another prohibited from disclosure by another statute, if the statute either:statute, if the statute either:– (A) requires that the matters be withheld from (A) requires that the matters be withheld from

the public in such a manner as to leave no the public in such a manner as to leave no discretion on the issue, ordiscretion on the issue, or

– (B) establishes particular criteria for withholding (B) establishes particular criteria for withholding or refers to particular types of matters to be or refers to particular types of matters to be withheldwithheld


Different types of statutes:Different types of statutes:– Require withholding—means that there is an Require withholding—means that there is an

absolute prohibition on disclosure (NO agency absolute prohibition on disclosure (NO agency discretion)discretion) Example: Census ActExample: Census Act

– Limited prohibition on disclosure—means that Limited prohibition on disclosure—means that there is some discretion in release of there is some discretion in release of information, but there are information, but there are guidelines and guidelines and criteriacriteria to follow to follow


Examples of Exemption 3 statutes used in Examples of Exemption 3 statutes used in DoD:DoD:– 10 U.S.C. 10 U.S.C. § 130b—used to protect the names of § 130b—used to protect the names of

DoD personnel in overseas, sensitive or DoD personnel in overseas, sensitive or routinely deployable units;routinely deployable units;

– 10 U.S.C. § 139c—used to protect certain 10 U.S.C. § 139c—used to protect certain sensitive information of foreign governments sensitive information of foreign governments and international organizations (Red Cross);and international organizations (Red Cross);

– 10 U.S.C. § 2305(g)—used to protect contractor 10 U.S.C. § 2305(g)—used to protect contractor proposals that are not incorporated into contractproposals that are not incorporated into contract


5 U.S.C. 5 U.S.C. § 552(b)(4) protects trade secrets § 552(b)(4) protects trade secrets and commercial or financial information and commercial or financial information obtained from a person, and privileged or obtained from a person, and privileged or confidentialconfidential

Two elements:Two elements:– Trade secrets; orTrade secrets; or– Commercial or financial information; andCommercial or financial information; and

Obtained from a person ANDObtained from a person AND Privileged or confidentialPrivileged or confidential


Trade Secret is defined broadly to Trade Secret is defined broadly to encompass any process or device for encompass any process or device for continuous use in the operation of a continuous use in the operation of a business—formula; design drawing of plane business—formula; design drawing of plane fuel pumpfuel pump

Trade secret protection is rarely invoked.Trade secret protection is rarely invoked. Commercial or financial information has the Commercial or financial information has the

ordinary meaningordinary meaning


CommercialCommercial means related to or deals with means related to or deals with business or commercebusiness or commerce

FinancialFinancial means applies to business means applies to business economics or financial data and personal economics or financial data and personal financial information—business sales financial information—business sales statistics; research data; technical designs; statistics; research data; technical designs; customer supplier lists; profit/loss data; customer supplier lists; profit/loss data; overhead/operating costs; information on overhead/operating costs; information on financial conditionfinancial condition


““Obtained from a person” includes most Obtained from a person” includes most entities (corporations, state governments, entities (corporations, state governments, agencies of foreign governments and non-agencies of foreign governments and non-profit organizations), BUT NOT the U.S. profit organizations), BUT NOT the U.S. governmentgovernment

““Privileged” refers to general discovery Privileged” refers to general discovery privileges, including attorney work product privileges, including attorney work product privilege, attorney-client privilege, and privilege, attorney-client privilege, and critical self-evaluative privilegecritical self-evaluative privilege


““Confidential” information comes in two Confidential” information comes in two forms:forms:– Voluntary submissions—would the submitter Voluntary submissions—would the submitter

routinely release this information to the public?routinely release this information to the public?– Required submissions—submitter must submit Required submissions—submitter must submit

the information to enjoy benefits of participation the information to enjoy benefits of participation in govt. contract/programin govt. contract/program

Submitter Notice—Executive Order 12,600Submitter Notice—Executive Order 12,600– Reverse FOIA lawsuitsReverse FOIA lawsuits


5 U.S.C. 5 U.S.C. § 552(b)(5) p§ 552(b)(5) protects from rotects from mandatory disclosure intra or inter-agency mandatory disclosure intra or inter-agency memorandum or letters that would not be memorandum or letters that would not be available by law to a party in litigation with available by law to a party in litigation with the agencythe agency

In other words, Exemption 5 protects In other words, Exemption 5 protects privileged informationprivileged information

Threshold requirements must be metThreshold requirements must be met


Threshold: Intra or inter-agency memorandums or Threshold: Intra or inter-agency memorandums or letters that are not available in civil discoveryletters that are not available in civil discovery

1. What does “intra or inter-agency” mean? 1. What does “intra or inter-agency” mean? – Outside Consultant TestOutside Consultant Test– Department of Interior v. Klamath Water Users Department of Interior v. Klamath Water Users

Protection Ass’nProtection Ass’n, 532 U.S. 1 (2001) , 532 U.S. 1 (2001)

2. “Memorandums or letters”--this part of the 2. “Memorandums or letters”--this part of the threshold covers all records in your filesthreshold covers all records in your files

-“records” also includes electronic records -“records” also includes electronic records


Threshold:Threshold:3.3. ““Available by law to a party in litigation”--Available by law to a party in litigation”--

this means that you would be able to this means that you would be able to receive this information through civil receive this information through civil discoverydiscovery

Common civil discovery privileges:Common civil discovery privileges:– Deliberative process privilegeDeliberative process privilege– Attorney work product privilegeAttorney work product privilege– Attorney-client privilegeAttorney-client privilege

Deliberative Process PrivilegeDeliberative Process Privilege

Two requirements:Two requirements:– The information is The information is predecisionalpredecisional; this is a ; this is a

timing question--was the document created timing question--was the document created prior to the adoption of an agency policy; prior to the adoption of an agency policy;

– The information is The information is deliberativedeliberative; this is a ; this is a character question--does the document character question--does the document contain advice, recommendations, analysis, contain advice, recommendations, analysis, suggestions, or opinionssuggestions, or opinions

Deliberative Process PrivilegeDeliberative Process Privilege

Generally, facts cannot be protected under Generally, facts cannot be protected under the deliberative process privilegethe deliberative process privilege

Drafts: If a document is a draft, you can Drafts: If a document is a draft, you can protect it all, including the facts, even if the protect it all, including the facts, even if the draft is identical to the final version of the draft is identical to the final version of the document.document.

Stamping a document “Draft” will not on its Stamping a document “Draft” will not on its own provide protection own provide protection

Attorney Work Product PrivilegeAttorney Work Product Privilege

The attorney work product privilege is The attorney work product privilege is designed to protect the adversarial trial designed to protect the adversarial trial process by insulating attorney’s preparationprocess by insulating attorney’s preparation

Two requirements:Two requirements:– The information was prepared by an attorney or The information was prepared by an attorney or

at his or her direction;at his or her direction;– The information was prepared in the anticipation The information was prepared in the anticipation

of litigationof litigation

Attorney Work Product PrivilegeAttorney Work Product Privilege

Litigation does not have to occur, but there Litigation does not have to occur, but there must have been a concrete possibilitymust have been a concrete possibility

Includes civil, criminal and administrative Includes civil, criminal and administrative litigationlitigation

No temporal limitations—protection does not No temporal limitations—protection does not end when litigation is overend when litigation is over

Facts can be protected under this privilegeFacts can be protected under this privilege

EExxeemmppttiioonn 55

Attorney-Client PrivilegeAttorney-Client Privilege

The attorney-client privilege was designed The attorney-client privilege was designed to encourage clients to disclose everything to encourage clients to disclose everything to his or her attorney when seeking legal to his or her attorney when seeking legal advice.advice.

This privilege protects confidential This privilege protects confidential communications between an attorney and communications between an attorney and client regarding a legal matter for which client regarding a legal matter for which client seeks professional advice.client seeks professional advice.

Attorney-Client PrivilegeAttorney-Client Privilege

Two requirements:Two requirements:-The information/communication is between a -The information/communication is between a

client and his or her attorneyclient and his or her attorney-The information/communication is confidential-The information/communication is confidential

This privilege protects the two-way This privilege protects the two-way communication between an attorney and his communication between an attorney and his or her clientor her client

Personal Privacy ExemptionsPersonal Privacy Exemptions

Two personal privacy exemptions under the Two personal privacy exemptions under the FOIA--Exemptions 6 and 7(C)FOIA--Exemptions 6 and 7(C)

The same 4-step analysis used under both The same 4-step analysis used under both exemptions:exemptions:– Which exemption applies?Which exemption applies?– Is there a legitimate privacy interest?Is there a legitimate privacy interest?– Is there a qualified public interest?Is there a qualified public interest?– Balance the two interestsBalance the two interests

Personal Privacy ExemptionsPersonal Privacy Exemptions

If the privacy interest is greater than any qualified If the privacy interest is greater than any qualified public interest, then you should withhold the public interest, then you should withhold the information.information.

If the public interest is greater than any legitimate If the public interest is greater than any legitimate privacy interest, then you should release the privacy interest, then you should release the informationinformation

Glomar response:Glomar response:– Identifiable individualIdentifiable individual– Records of a particularly sensitive natureRecords of a particularly sensitive nature– Used with both exemptionsUsed with both exemptions


5 U.S.C. 5 U.S.C. § 552(b)(6) protects information found in § 552(b)(6) protects information found in “personnel and medical and similar files,” the “personnel and medical and similar files,” the disclosure of which would constitute a clearly disclosure of which would constitute a clearly unwarranted invasion of personal privacyunwarranted invasion of personal privacy

ThresholdThreshold: Information is found in personnel, : Information is found in personnel, medical and “similar” files--a “similar” file is any medical and “similar” files--a “similar” file is any other type of file that you might have in your other type of file that you might have in your agencyagency


The privacy interest is the living individual’s The privacy interest is the living individual’s interest in controlling the dissemination of interest in controlling the dissemination of information about him or herself.information about him or herself.

The public interest must serve the FOIA’s The public interest must serve the FOIA’s core purpose of shedding light on an core purpose of shedding light on an agency’s operations or activitiesagency’s operations or activities

Exemption 6 is the Exemption 6 is the non-law enforcementnon-law enforcement privacy exemptionprivacy exemption


5 U.S.C. 5 U.S.C. § 552(b)(7) protects information § 552(b)(7) protects information found in “records compiled for law found in “records compiled for law enforcement purposes,” the disclosure of enforcement purposes,” the disclosure of which would result in harmwhich would result in harm

There are 6 sub-parts to Exemption 7, each There are 6 sub-parts to Exemption 7, each of which addresses a specific harm in of which addresses a specific harm in release release


ThresholdThreshold: “records or information compiled for law : “records or information compiled for law enforcement purposes”enforcement purposes”

-- Recompilations of information Recompilations of information

- “Law enforcement” under the FOIA--civil, criminal, - “Law enforcement” under the FOIA--civil, criminal, administrative, regulatory;administrative, regulatory;

- Mixed function agencies & Exemption 7D;- Mixed function agencies & Exemption 7D;

After you determine if Exemption 7 applies (i.e., you have After you determine if Exemption 7 applies (i.e., you have a record compiled for law enforcement purposes), need a record compiled for law enforcement purposes), need to identify specific harm in releaseto identify specific harm in release


Exemption Exemption 7(A)-pending or prospective law 7(A)-pending or prospective law enforcement proceeding, release could reasonably enforcement proceeding, release could reasonably be expected to interfere;be expected to interfere;

Exemption 7(B)-flip-side of 7(A), release would Exemption 7(B)-flip-side of 7(A), release would deny an individual right to fair trial;deny an individual right to fair trial;

Exemption 7(C)-personal privacy exemption for Exemption 7(C)-personal privacy exemption for law enforcement records--unwarranted invasion of law enforcement records--unwarranted invasion of personal privacypersonal privacy

Exemption 7(D)-names of confidential sources and Exemption 7(D)-names of confidential sources and information providedinformation provided


Exemption 7(E)-investigative techniques Exemption 7(E)-investigative techniques and procedures or guidelines for law and procedures or guidelines for law enforcement investigations (Use with (b)(2));enforcement investigations (Use with (b)(2));

Exemption 7(F)-danger to life or physical Exemption 7(F)-danger to life or physical safety of any individualsafety of any individual

Exemption 8-financial institution records;Exemption 8-financial institution records; Exemption 9-geological/geophysical data, Exemption 9-geological/geophysical data,

including maps concerning wellsincluding maps concerning wells

Overview of FOIA Exemptions. Exemption 1 5 U.S.C. § 552(b)(1) protects material that is properly...

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