Information Exempt From FOIA

It is the policy of FOIA to require agencies to make records available to the public to the greatest extent possible.  Citizens can obtain copies of agency records unless the records contain information that is exempt from disclosure under the Freedom of Information Act (FOIA).  The FOIA was enacted by Congress to give the U.S. public greater access to federal government records.  The FOIA requires federal agencies to disclose records that do not fall into one of nine exempt categories explained in the Act [i].  Congress created these exemptions for the protection of legitimate governmental and private interests[ii].

An agencyshould deny a request for records when the requested record contains information falling under any of  nine categories of exemptions mentioned in the FOIA.  The following are the types of information that are exempt from disclosure[iii]:

  1. Classified matters of national defense[iv];
  2. Internal personnel rules and practices[v];
  3. Information specifically exempted by other statutes[vi];
  4. Trade secrets, commercial or financial information[vii];
  5. Privileged interagency or intra-agency memoranda or letters[viii];
  6. Personal information affecting an individual’s privacy[ix];
  7. Investigatory records compiled for law enforcement Purposes[x];
  8. Records of financial institutions[xi];
  9. Geographical and geophysical information concerning Wells[xii];

Foreign policy records specifically authorized under a criteria established by an executive order to be kept secret in interest of national defense or foreign policy are generally exempted from disclosure.  Agency records related solely to the internal personnel rules and practices of a substantial and trivial nature are exempted under the second exemption.  Some statutes specifically exempt certain records from disclosure.  Privileged or confidential trade secrets and commercial or financial information are also exempted from disclosure.  Intra-agency memoranda or letters not available by law to a private party are exempted under the sixth exemption.  Disclosure of personnel, medical, and similar files constituting a clearly unwarranted invasion of personal privacy is prohibited.  The seventh exemption includes financial files.  Moreover, agency records compiled for law enforcement purposes are exempted from disclosure.  Records for use of an agency responsible for the regulation or supervision of financial institutions are generally excluded.

These exemptions can be scheduled into two categories: absolute exemptions and qualified exemptions.  Absolute exemptions include exemptions, the disclosure of which is not necessary.  Under this category information which is reasonably accessible to the applicant is exempted.  Public interest arguments are made for withholding information under qualified exemption.  Moreover, when a requested record contains both exempt and nonexempt information, the nonexempt portions that can reasonably be segregated from the exempt portions will be released to the requester.  Any reasonably segregable portion of a record is to be provided to any person requesting such record after deletion of the portions which are exempt under the FOIA[xiii].

The agency resisting disclosure of requested information has the burden of proving the applicability of an exemption[xiv].  The agency must prove the burden by submitting a detailed affidavit showing that the information logically falls within the claimed exemption[xv].  Moreover, the FOIA allows courts to compel agency action unlawfully withheld or unreasonably delayed[xvi].  The FOIA is to be construed broadly to provide information to the public in accordance with its purposes.  However, the exemptions from production are to be construed narrowly[xvii].

The FOIA through its exemption clauses strikes a balance between information disclosure and nondisclosure.  The Act an emphasis on the fullest responsible disclosure, with emphasis on reasonable exemption.

Moreover, some state freedom of information statutes provide that a custodian can apply to a court for an order restricting the disclosure of a public record.  However, the prohibited disclosure of the record must do substantial injury to the public interest or must substantially and irreparably injure someone.

[i] United States v. Weber Aircraft Corp., 465 U.S. 792, 793-794 (U.S. 1984).

[ii] FBI v. Abramson, 456 U.S. 615, 621 (U.S. 1982).

[iii] 5 USCS § 552(b).

[iv] 5 USCS § 552(b)(1).

[v] 5 USCS § 552(b)(2).

[vi] 5 USCS § 552(b)(3).

[vii] 5 USCS § 552(b)(4).

[viii] 5 USCS § 552(b)(5).

[ix] 5 USCS § 552(b)(6).

[x] 5 USCS § 552(b)(7).

[xi] 5 USCS § 552(b)(8).

[xii] 5 USCS § 552(b)(9).

[xiii] 5 USCS § 552(b).

[xiv] Church of Scientology v. United States Dep’t of Army, 611 F.2d 738, 742 (9th Cir. Cal. 1979).

[xv] St Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. Cal. 1992).

[xvi] 5 USCS §.706(1).

[xvii] United States DOJ v. Julian, 486 U.S. 1, 8 (U.S. 1988).


Inside Information Exempt From FOIA