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FOIA Exemptions

   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:

  1. 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.

  2. 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. Cir. 1983).

  3. 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.

  4. 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.

  5. 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.

  6. 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 to protect."

    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. Id.
    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:
    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.
  7. 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 proceeding").

       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).

  8. 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.

  9. 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 used.

 
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