freedom of information act exemption overview unclassifiedinformation

Freedom of Information Freedom of Information ActAct

Exemption OverviewExemption Overview

UNCLASSIFIED UNCLASSIFIED

INFORMATIONINFORMATION

FOIA ExemptionsFOIA Exemptions The FOIA is found in Title 5 United States Code SectionThe FOIA is found in Title 5 United States Code Section

552 (5 U.S.C. § 552)552 (5 U.S.C. § 552) There are 9 FOIA exemptionsThere are 9 FOIA exemptions This briefing will cover Exemptions 1, 2, 3, 4, 5, 6, and 7This briefing will cover Exemptions 1, 2, 3, 4, 5, 6, and 7

Exemption 1:Exemption 1: 5 U.S.C. 5 U.S.C. § 552(b)(1)§ 552(b)(1) Applies to information which is currently and properly Applies to information which is currently and properly

classified in the interest of national defense or foreign classified in the interest of national defense or foreign policy, as specifically authorized under the criteria policy, as specifically authorized under the criteria established by Executive Order and implemented by established by Executive Order and implemented by regulation (such as DoD 5200.1-R).regulation (such as DoD 5200.1-R).

Exemption 1Exemption 1

Executive Order 12958, as amendedExecutive Order 12958, as amended May classify after receipt of FOIA May classify after receipt of FOIA

request--request--§ 1.7(c) (procedures to follow)§ 1.7(c) (procedures to follow) Compilation/Mosaic approachCompilation/Mosaic approach Properly marked documentsProperly marked documents Glomar responseGlomar response


New additions to classification categories:New additions to classification categories: ““Transnational Terrorism”--§ 1.4(e) & (g);Transnational Terrorism”--§ 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)

Freedom of Information ActFreedom of Information Act

5 U.S.C. 5 U.S.C. § 552(b)(2):§ 552(b)(2): Protects records that 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 parts:Two parts:

• HighHigh: 1. operating rules; guidelines; manuals for : 1. operating rules; guidelines; manuals for investigators, auditors or examinersinvestigators, auditors or examiners

2. examination questions and 2. examination questions and answers used for training, employment or promotionanswers used for training, employment or promotion

3. computer software, if disclosure 3. computer software, if disclosure would allow circumvention and meets agency record would allow circumvention and meets agency record testtest


Predominantly internalPredominantly internal Release would cause agency harm Release would cause agency harm

(Homeland security information)(Homeland security information) Public interest in disclosure is irrelevantPublic interest in disclosure is irrelevant Courts willing to go further to protect law Courts willing to go further to protect law

enforcement material/informationenforcement material/information


Low 2: Covers trivial information of no Low 2: Covers trivial information of no public interestpublic interest Predominantly internalPredominantly internal No genuine public interestNo genuine public interest Does information “shed significant light” on Does information “shed significant light” on

personnel rules and practices (routine personnel rules and practices (routine matters/performance stds vs. public matters/performance stds vs. public interest/honor code proceedings)?interest/honor code proceedings)?

FOIA ExemptionsFOIA Exemptions

Exemption 2 (cont’d)Exemption 2 (cont’d) LowLow: trivial information parking facility rules; : trivial information parking facility rules;

lunch hour rules; sick leave policy; mail lunch hour rules; sick leave policy; mail routing stamps; initials routing stamps; initials

Awards, travel expenses, file numbers, data Awards, travel expenses, file numbers, data processing notations (Senate intent)processing notations (Senate intent)

(b)(2) High(b)(2) High

Vulnerability studiesVulnerability studies Schreibman v. U.S. Department of CommerceSchreibman v. U.S. Department of Commerce

Examples:Examples: Pentagon AC DuctsPentagon AC Ducts Lock mechanism manualsLock mechanism manuals


FOIA disclosure should not “benefit those FOIA disclosure should not “benefit those attempting to violate the law and avoid attempting to violate the law and avoid detection.”detection.”

Must make determination of reasonably Must make determination of reasonably expected harmexpected harm

Used with Exemption (b)(7)(E) to protect law Used with Exemption (b)(7)(E) to protect law enforcement techniques and manualsenforcement techniques and manuals

Remember that information must be Remember that information must be internalinternal

to be protected under Exemption 2to be protected under Exemption 2

EXEMPTION 3EXEMPTION 3

Exemption 3 incorporates other federal Exemption 3 incorporates other federal nondisclosure statutes into the FOIAnondisclosure statutes into the FOIA

See WORD document listing (b)(3) See WORD document listing (b)(3) exemptionsexemptions

EXEMPTION 4EXEMPTION 4 Exemption 4 protects trade secrets and commercial or Exemption 4 protects trade secrets and commercial or

financial information that is privileged or confidentialfinancial information that is privileged or confidential FOIA Process must comply with EO 12600, requiring FOIA Process must comply with EO 12600, requiring

“submitters notice”, i.e., review of contract by its “submitters notice”, i.e., review of contract by its submitter, for information that would infringe on a submitter, for information that would infringe on a commercial advantage of proprietary informationcommercial advantage of proprietary information

Action office with the contract requests contractor review Action office with the contract requests contractor review with 1-month suspensewith 1-month suspense

Can protect the Government’s proprietary interestCan protect the Government’s proprietary interest Bottom line: the Contractor makes the callBottom line: the Contractor makes the call


5 U.S.C. 5 U.S.C. § 552(b)(5): § 552(b)(5): Protects “inter-Protects “inter-agency or intra-agency memorandums or agency or intra-agency memorandums or letters which would not be available by law letters which would not be available by law to a party other than an agency in litigation to a party other than an agency in litigation with the agency.”with the agency.”

What does “inter- or intra-agency What does “inter- or intra-agency memorandum or letter” mean? memorandum or letter” mean?


Exemption 5 threshold issues:Exemption 5 threshold issues:

• Inter-agency (between) or intra-agency (within):Inter-agency (between) or intra-agency (within): Klamath Water UsersKlamath Water Users case (Functional test) case (Functional test)

• Memorandum or lettersMemorandum or letters Covers anything in your fileCovers anything in your file

• ““Not available by law” refers to iformation normally Not available by law” refers to iformation normally privileged in civil discoveryprivileged in civil discovery


Three main privileges:Three main privileges: Deliberative Process PrivilegeDeliberative Process Privilege Attorney Work Product PrivilegeAttorney Work Product Privilege Attorney Client PrivilegeAttorney Client Privilege

Deliberative Process PrivilegeDeliberative Process Privilege• Designed to facilitate agencies’ decision making Designed to facilitate agencies’ decision making

processprocess

Deliberative Process PrivilegeDeliberative Process Privilege

Three rationales:Three rationales:1. Protect candor of the decision makers1. Protect candor of the decision makers

2. Protect against premature disclosure of 2. Protect against premature disclosure of proposed policiesproposed policies

3. Prevent confusion of the public 3. Prevent confusion of the public


How to determine if a document is deliberative:How to determine if a document is deliberative:

Look at who has decision-making authority Look at who has decision-making authority (chain of command)(chain of command)

Look at direction document flows along decision-Look at direction document flows along decision-making chain (employee to supervisor)making chain (employee to supervisor)

Is substance of document analysis, evaluations, Is substance of document analysis, evaluations, advice, recommendations?advice, recommendations?

Cannot protect the facts—must segregate facts Cannot protect the facts—must segregate facts from deliberative materialfrom deliberative material


Two parts to this privilege:Two parts to this privilege: 1. The information must be 1. The information must be predecisionalpredecisional::

• ““Antecedent to the adoption of an agency policy”Antecedent to the adoption of an agency policy”• Not final agency decisions or statements of agency Not final agency decisions or statements of agency

policypolicy• Not post-decisional statements that explain Not post-decisional statements that explain

decisionsdecisions• Predecisional documents can lose their protection Predecisional documents can lose their protection

as suchas such


2. The information must be 2. The information must be deliberativedeliberative::• Analysis, evaluations, comments, advice, Analysis, evaluations, comments, advice,

recommendationsrecommendations• Drafts:Drafts:

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

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

Attorney Work Product PrivilegeAttorney Work Product Privilege

Protects adversarial trial process by Protects adversarial trial process by insulating attorney’s preparation from insulating attorney’s preparation from scrutinyscrutiny

Protects documents prepared by an Protects documents prepared by an attorney or at his or her direction in attorney or at his or her direction in reasonable anticipation of litigation—can reasonable anticipation of litigation—can be used to cover work done by law be used to cover work done by law enforcement agents/investigatorsenforcement agents/investigators

Attorney Client PrivilegeAttorney Client Privilege Protects confidential communications Protects confidential communications

between an attorney and client regarding a between an attorney and client regarding a legal matter for which client seeks legal matter for which client seeks professional advice.professional advice.

Protects facts divulged by client to Protects facts divulged by client to attorney AND opinions given by attorney attorney AND opinions given by attorney based on those factsbased on those facts

Confidential communications within the Confidential communications within the governmentgovernment

Exemptions 6 & 7(C)Exemptions 6 & 7(C)

The Personal Privacy Exemptions:The Personal Privacy Exemptions: Exemption (b)(6)Exemption (b)(6) permits the government to permits the government to

withhold all information about individuals in withhold all information about individuals in “personnel and medical files and similar files” “personnel and medical files and similar files” when the disclosure of such information when the disclosure of such information “would constitute a clearly unwarranted “would constitute a clearly unwarranted invasion of personal privacy.”invasion of personal privacy.”

Non-law enforcement personal privacy Non-law enforcement personal privacy exemptionexemption

Personal Privacy ExemptionsPersonal Privacy Exemptions

Exemption (b)(7)(C)Exemption (b)(7)(C) permits the government to permits the government to withhold information compiled for law withhold information compiled for law enforcement purposes the disclosure of which enforcement purposes the disclosure of which “could reasonably be expected to constitute an “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”unwarranted invasion of personal privacy.”

Both Exemption 6 and 7( C) require a balancing Both Exemption 6 and 7( C) require a balancing of the privacy interest with any public interest in of the privacy interest with any public interest in disclosuredisclosure


4-Step Analysis4-Step Analysis::

1. Which exemption applies? 1. Which exemption applies? 2. Is there an identifiable privacy interest? 2. Is there an identifiable privacy interest? 3. Is there a legitimate public interest?3. Is there a legitimate public interest? 4. Balance the two interests4. Balance the two interests


Examples of Privacy Interests:Examples of Privacy Interests: Age; marital status; home address; medical Age; marital status; home address; medical

conditions; performance appraisals; criminal conditions; performance appraisals; criminal convictions; information about unsuccessful convictions; information about unsuccessful job applicants; information that, although job applicants; information that, although perhaps once public, has become “practically perhaps once public, has become “practically obscure.”obscure.”

““Practically obscure”—rap sheetsPractically obscure”—rap sheets


Examples where there is no Privacy Interest:Examples where there is no Privacy Interest: Deceased individuals generally have no Deceased individuals generally have no

privacy interests; however, courts do privacy interests; however, courts do recognize “survivor privacy interests” recognize “survivor privacy interests”

CorporationsCorporations Federal employees, except for some federal Federal employees, except for some federal

agencies (DoD names policy)agencies (DoD names policy) Identities of FOIA requestersIdentities of FOIA requesters


Public Interest under the FOIAPublic Interest under the FOIA That which sheds light on the operations and That which sheds light on the operations and

activities of the federal government —activities of the federal government —Reporters CommitteeReporters Committee case. case.• Focus on agency’s conduct, not personal conduct Focus on agency’s conduct, not personal conduct

of individualsof individuals• Information about private citizens will rarely show Information about private citizens will rarely show

the operations and activities of the government.the operations and activities of the government.• Duty to segregate non-exempt informationDuty to segregate non-exempt information


Protects information compiled for law Protects information compiled for law enforcement purposes, including criminal, enforcement purposes, including criminal, civil, administrative and regulatory civil, administrative and regulatory proceedings;proceedings;

6 Subparts allow for the withholding of 6 Subparts allow for the withholding of information compiled for law enforcement information compiled for law enforcement purposes on the basis of the potential harm purposes on the basis of the potential harm resulting from releaseresulting from release

Exemption 7 SubpartsExemption 7 Subparts

(A) could interfere with pending or (A) could interfere with pending or prospective enforcement proceeding;prospective enforcement proceeding;

(B) would deprive an individual of the right (B) would deprive an individual of the right to a fair trial;to a fair trial;

(C) could reasonably be expected to (C) could reasonably be expected to constitute an unwarranted invasion of constitute an unwarranted invasion of personal privacy;personal privacy;

Exemption 7 SubpartsExemption 7 Subparts

(D) could reasonably be expected to (D) could reasonably be expected to disclose identity of confidential source . . . disclose identity of confidential source . . . or information provided by source;or information provided by source;

(E) would reveal techniques or procedures (E) would reveal techniques or procedures for law enforcement investigations or for law enforcement investigations or guidelines if could risk circumvention;guidelines if could risk circumvention;

(F) could reasonably be expected to (F) could reasonably be expected to endanger life or physical safety of endanger life or physical safety of individualindividual

freedom of information act exemption overview unclassifiedinformation

Documents

financial information

cfreedom of information

foia disclosure

exemption b7e

foia exemptionsexemption

internal personnel rules

intraagency memorandums

receipt of foia request