FOIA Exemptions
Exemptions
Congress established nine categories of information that are not required to be released in response to a FOIA request because release would be harmful to a governmental or private interest. These categories are called “exemptions” from disclosure and protect for example, personal privacy, privileged communications, and law enforcement interests.
There are nine (9) exemptions to FOIA.
FOIA Exemptions
Exemptions
Congress established nine categories of information that are not required to be released in response to a FOIA request because release would be harmful to a governmental or private interest. These categories are called “exemptions” from disclosure and protect for example, personal privacy, privileged communications, and law enforcement interests.
Exemption 1
Protects information that is properly classified under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy.
Exemption 2
Protects information related solely to the internal personnel rules and practices of an agency.
Exemption 3
Protects information specifically exempted from disclosure by another statute, if that statute either: (1) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (2) establishes particular criteria for withholding or refers to particular types of matters to be withheld. An Exemption 3 statute must also cite specifically to subsection (b)(3) of the FOIA if enacted after October 28, 2009.
Exemption 3 Statute
Exemption 3 incorporates into the FOIA certain nondisclosure provisions that are contained in other federal laws. These laws are referred to as “Exemption 3 statutes.”
Exemption 4
Protects trade secrets and commercial or financial information that is obtained from outside the government and that is privileged or confidential.
Exemption 5
Protects certain records exchanged within or between agencies that are normally privileged in the civil discovery context, such as records protected by the deliberative process privilege (provided the records are less than 25 years old), attorney work-product privilege, or attorney client privilege.
Exemption 6
Protects information about individuals in personnel and medical files and similar files when the disclosure of that information would constitute a clearly unwarranted invasion of personal privacy.
Exemption 7 A-F
Protects records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or 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. 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 a lawful national security intelligence investigation, it also protects information furnished by the confidential source;
- (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines 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.
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.
Exemption 9
Protects geological and geophysical information and data, including maps, concerning wells.
Presumption of Openness
What is the Presumption of Openness and Who Issues Guidance to Agencies on the FOIA?
The FOIA provides that when processing requests, agencies should withhold information only if they reasonably foresee that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law. Agencies should also consider whether partial disclosure of information is possible whenever they determine that full disclosure is not possible and they should take reasonable steps to segregate and release nonexempt information. The Office of Information Policy at the Department of Justice is responsible for issuing government-wide guidance on the FOIA as part of its responsibilities to encourage all agencies to fully comply with both the letter and the spirit of the FOIA.
FOIA Exclusions
Three Categories of Law Enforcement and National Security Records
Congress has provided special protection in the FOIA for three narrow categories of law enforcement and national security records. The provisions protecting those records are known as “exclusions.” The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings. The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed. The third exclusion is limited to the Federal Bureau of Investigation and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified. Records falling within an exclusion are not subject to the requirements of the FOIA. So, when an office or agency responds to your request, its response will encompass those records that are subject to the FOIA.