Federal Freedom of Information Act
Title 5 United States Code § 552, short-titled the Freedom
of Information Act (FOIA), was enacted in 1966, providing
for the first time an effective statutory right of access
to information acquired and stored by agencies of the
United States government. The United States Supreme
Court succinctly phrased the ideal: "The basic purpose
of the FOIA is to ensure an informed citizenry, vital
to the functioning of a democratic society, needed to
check against corruption and to hold the governors accountable
to the governed."1
The high court further refined the statutory purpose
in 1989, stating "[o]fficial information that sheds
light on an agency's performance of its statutory duties
falls squarely within that statutory purpose."2
President Clinton, in a memorandum to heads of departments
and agencies dated October 4, 1993, called upon federal
agencies to attend to the spirit of the Act, and renew
their commitment to openness and an informed public:
"Openness in government is essential to accountability
and the Act has become an integral part of that process."3
FOIA compels agencies to assume that requested information
must be released, establishing a "presumption" in
favor of disclosure.4
It consists of six subsections which allow public
access to records maintained by a federal agency unless
the record falls within one of nine exemptions, or
is specifically excluded from the Act's coverage.5
If a request for information is denied, the nine exemptions
usually provide the basis. Decisions to withhold information
are primarily matters of agency discretion, rather
than subject to mandatory withholding. 6
The FOIA does not prohibit the disclosure of any information;
rather, it allows the government to withhold certain
information based on identifiable "harms."
person requesting information under the FOIA who is
denied access under one of the exemptions can file
suit in the United States District Court. In court,
the "presumption" forces the agency to bear the burden
of proving that the requested information was exempted.
The Department of Justice oversees Freedom of Information
Act policy and issues guidelines for litigation which
assist agencies in the processing of FOIA requests.
memorandum noted above, along with Attorney General
Reno's supplemental Justice Department memorandum,7
have the combined effect of broadening public access
rights to federal information to an extent never before
seen. Roughly stated, they minimize agency discretion
in the decision making process. Agencies in the past
may have decided to withhold records using one of
the many "discretionary exemptions," safe in the assumption
that the Justice Department would defend agency actions
in litigation. Agency officials no longer have this
luxury. Current Department of Justice guidelines provide
for defense of FOIA litigation only where the agency
can point to a specific recognized harm to an interest
identified in one of the nine FOIA exemptions.8
In the past, the Department of Justice would defend
agency actions where there was a "substantial legal
basis" for nondisclosure.9
The old guidelines, developed under the Reagan Administration,
allowed substantially more agency discretion. If the
Justice Department will not defend agency actions,
then the agency must release the information.
FOIA applies to federal "agencies;" by definition
this includes executive branch agencies, offices and
departments, independent regulatory bodies (e.g.,
Federal Trade Commission, Federal Communications Commission,
etc.), and federally controlled corporations (e.g.,
the Postal Service). The FOIA does not apply to Congress,
the courts, or executive branch offices which exist
only to give advice and assistance to the President.10
United States Supreme Court has provided a two-part
test to determine if a requested record falls within
the FOIA. First, the record must be either created
or obtained by an agency; second, it must be under
agency control at the time of a proper FOIA request.11
A "record" is information kept in some form; it is
not some thing, like a lamp or the gun used by Jack
Ruby in 1963. The term "record" has been held by at
least one federal court to mean, and is generally
accepted to include, electronic data.12
The agency retains the ability to choose by which
format information will be released, so long as the
format is reasonable under the circumstances.13
Agencies cannot be forced to create records, answer
questions raised by FOIA requests, produce records
which have been wrongfully removed from the agency
or properly destroyed by the agency, or seek records
held by a private individual. Finally, a FOIA request
cannot require production of records yet to be produced,
or "future" records.14
Be aware that a string of District of Columbia Circuit
decisions draw a thin line between "agency" records
and some other sorts of records, created on agency
time and using agency equipment, but over which the
creative individual did not relinquish control. These
are considered "personal" records and do not fall
within the definition of "agency record." Items like
phone message slips, reminder notes and such are personal
in nature and, depending on the court, aren't considered
"agency records." In such a situation look to the
purpose of the records, and the amount of agency control
exercised over the record,15
to determine whether it falls within the FOIA.
person, including corporations, citizens, resident
aliens, foreign nationals and even foreign governments
may make a formal FOIA request. Federal agencies are
not included in this group,16
nor are fugitives from justice (and their legal representatives).17
The formal requirements for these requests are minimal.
They must be in writing, to the appropriate agency
(in other words, the one that has possession of the
requested record), and the request must contain some
sort of understandable description of the desired
record. This description need not be exact; it just
needs to contain enough information to allow the agency
to locate the desired item.18
Requesters should note that the agency is authorized
to charge an hourly fee for locating the records,
and additional fees for photocopying and computer
time. The more accurate the description, the less
the eventual charge.
addition to the above requirements, the request should
follow the appropriate agency procedures for the processing
of a FOIA request. These procedures are published,
but it is usually easier to contact the agency FOIA
official and get the proper procedures. Requests are
generally given the benefit of the doubt by the agency,
which is operating under Justice Department guidance
referenced here as the October 1993 memoranda from
President Clinton and Attorney General Reno.19
But the requester should not rely on agency largesse.
FOIA requests which do not follow the agency guidelines
are not considered received by the agency until agency
people identify it as a request. Also, matters regarding
the payment of fees required for search and photocopying
may permissibly delay or even kill a FOIA request.20
552(a) describes two kinds of information which must
be widely available. First, there is federal information
which must be published in the Federal Register, such
as agency rules, policy statements, organization and
Second, certain administrative opinions, staff manuals
and policy statements must be made available to the
public at large.22
Information made available under this section is usually
called "reading room material," and is required to
be indexed to allow greater ease in public access.
The idea here is to avoid the development of "secret"
agency regulations. 23
The public should have access to the same information
relied upon by the agency in its decision making processes,
and to the regulations and policies underlying these
552(a)(3) subjects all other types of records (except
for narrow exceptions within subsections (b) and (c)
of the Act) to disclosure when the agency receives
a proper request.25
FOIA requests should be sent certified mail 26
and directed to the FOIA office within the agency,
or the FOIA official. Agencies which receive a large
volume of FOIA requests will usually have designated
offices which regularly process these letters. Theoretically,
the agency has 10 working days from the date of receipt
to process the request. Extensions of this time can
be obtained by the agency if the information requested
is "voluminous" or if there is a need to coordinate
with another agency. 27
reality, many agencies have experienced such a flood
of FOIA requests that the offices charged with handling
them have become backlogged. The D.C. Circuit has
approved a general policy of tackling these requests
on a "first in - first out" basis, unless the requester
can convince the agency to expedite the request.28
Until 1994, agencies used only two criteria for expediting
a FOIA claim: a threat to life or safety, or the threat
of a loss of substantial due process rights.29
A third criteria for expedition was introduced in
a Department of Justice memorandum dated February
1, 1994. Per agency discretion, expedition is warranted
when a FOIA request is of "widespread and exceptional
media interest," and "the information sought involves
possible questions about the government's integrity
which affect public confidence."30
By and large, these methods are the only way to expedite
a request in light of the Open America decision.31
There is no provision in federal law for money damages
for delays in handling a FOIA request.
agency's response will inform the requester as to
whether requests are granted or denied. If denied,
the letter should outline the specific reasons for
denial and list the procedure for an administrative
appeal. A final agency determination is required within
20 working days.32
If the 20-day period runs without a final agency decision,
the requester may consider his or her appeal constructively
After the administrative decision is final, the requester
may file suit in his home federal circuit, or the
District of Columbia (D.C.) Circuit. For those of
a legal bent, the District Court reviews these agency
decisions de novo.34
current fee structure for FOIA purposes was finalized
by the Office of Management and the Budget (OMB) in
and sets forth three categories of fee assessment,
determined by who requests the information and for
what purpose it was requested. The three categories
(referred to as levels) are: (1) commercial use; (2)
scholarly or noncommercial scientific purpose, or
news media representatives; and (3) all other requesters
not falling within numbers (1) and (2).36
(1) requesters pay for searches, duplication and review
of the records. Agencies will usually be in contact
with the requester to determine the commercial purposes
of the user. Where relevant, agencies will generally
warn them of high fees. Don't count on this, however.
Always ask for notification in the instance of extensive
charges within the text of a formal FOIA request.
If the requested information is voluminous, the agency
may require a deposit prior to completing the request.
Guidelines as to this requirement should be available
from the agency.
(2) users receive immunity from search and review
fees. They pay only actual costs (duplication, mail
charges, etc.). Level (3) users pay "reasonable" costs
for search and duplication. These charges are mitigated,
in level (2) and (3) users, by provisions that no
charges be levied which would cost more to process
and collect than the fee itself. Also, OMB guidelines
allow these non-commercial requesters to receive the
first 100 pages and two hours of search time free
FOIA Reform Act, effective April 25, 1987, produced
the current fee waiver standard. Fees should be waived
for the good of the public if it is "likely to contribute
significantly to public understanding of the operations
or activities of the government and is not primarily
in the commercial interest of the requester." There
are six analytical criteria used in this analysis,
and these factors may be found in the Ninth Circuit
case, McClellan Ecological Seepage Situation v.
practical purposes, any noncommercial requester who
feels that his or her purpose may somehow fall within
the above definition should request a waiver, using
the above quoted language, in their formal FOIA request.
nine exemptions, covered below in detail, are used
to support most agency decisions to deny a FOIA request.
It is important to note here that sometimes portions
of a record will be releasable, while some parts will
fit into one of these exemptions. If this is the case,
the agency should redact the objectionable parts and
comply with the remainder of the request.39
As a last resort, if the FOIA requester challenges
the decision to deny a FOIA request for a large amount
of allegedly exempt material, the trial court can
order a "Vaughn Index."40
This device was developed by the District Court for
the D.C. Circuit to assist it in cases where the agency's
denial included a mountain of "exempt" material. Prior
to Vaughn, the court was forced to plow through
the mountain of material in camera (private
review in chambers), a lengthy and exhaustive process.
Vaughn puts this burden back where Congress
intended it to lie, forcing the agency to make a list
of exempted material and to cross index it by the
claimed exemption and the agency justification.
Vaughn Index is an effective tool, and an
order for one is crafted by the individual court,
based on the material to be indexed. It is a flexible
and valuable method for resolution of FOIA disputes.
Security Matters, § 552 (b)(1): Agencies
may withhold information which, if released, could
pose a risk to national security using a two-step
analysis. First, the records must be of a sort specifically
authorized by executive order to be "secret."41
Next, they must be correctly placed within that category
by the agency. Any information which, if released,
"could reasonably be expected to cause damage to the
national security of the United States,"42
should be withheld by the agency.
a requester seeks to challenge an agency decision
to withhold records under Exemption 1, the agency
will be forced to file an affidavit in the district
court explaining in a broad way the contents of the
confidential file, and the "expected damage" to national
security. Courts, in the past, have treated these
affidavits with much deference. The Supreme Court
in 1973 held that documents, once classified by an
agency, were per se exempted from FOIA availability.43
Congress amended the law in 1974 to allow for de novo
review in the courts, and in camera review
of documents where necessary, of the agency's categorization
of particular records.44
to 1986, federal courts unanimously deferred to an
agency's classification of a document. Subsequently,
courts have found that some documents which were classified
by the agency did not properly qualify for "secret"
Courts will go to great lengths to protect agency
classified information, requiring in camera hearings
and review of documents, and occasionally staying
proceedings while court personnel received appropriate
security clearance to review materials.46
It is an accepted principle that plaintiff's counsel
has no right to participate in these in camera proceedings.47
types of agency information is so incredibly sensitive
that knowledge of its very existence could pose a
threat to national security. In cases like this, the
agency is allowed to submit in camera affidavits.
Publicly, the response to this type of very sensitive
request will be that the government can "neither confirm
nor deny" the existence of the records. This response
has acquired a nickname, the "Glomar response."48
A request for any information regarding United States
involvement in subverting local governmental bodies
in Nicaragua might be the type of FOIA request receiving
a Glomar answer.49
This response has been specifically included within
Executive Order 12,958 § 3.7 (a).
current executive order places a time limit of 10
years on a classification decision. This only applies
to documents classified after October of 1995. Documents
classified under previous executive orders usually
must be challenged under the standards set forth by
previous orders. Courts will examine whether the documents
were properly classified under the order in existence
when they were created.50
There are provisions which allow the agency to reclassify
older documents using the new executive order.51
Whether they decide to do this is going to depend
on agency discretion.
it to say that any third party challenge to records
classified "secret" by an agency authorized to so
declare should obtain the assistance of an attorney
(or two) experienced in the nuance of this complex
Personnel Rules and Practices, § 552 (b)(2): This
exemption allows the agency to withhold two basic
types of information, classified in the FOIA jargon
as "low 2" and "high 2" information. To qualify for
this exemption, the information must first be an internal
agency practice or personnel rule. Second, it must
be one of the following types:52
2" information consists of trivial matters so mundane
and unimportant that the administrative burden of
processing a FOIA request to provide it far outstrips
any possible benefit to the public.53
Leave practices and routine internal personnel matters
are considered to fall into this category. More significant
information, like Air Force Academy cadet honor code
proceedings, are not included. 54
"Low 2" information, because it is withheld based
on a relatively small "government interest," will
generally be released.55
2" information is not trivial, and therefore theoretically
should be released without the protection of this
exemption. This information is protected, not because
it is too trivial to be useful, but because disclosure
may risk circumvention of lawful agency regulation.
Bureau of Prisons information on prisoner classification,
which could help outsiders breach prisoner security,
was deemed to fall within this part of the exemption.56
by Other Statutes, § 552 (b)(3): As amended
in 1976, FOIA Exemption 3 allows agencies to withhold
information which is "specifically exempted from disclosure
by statute, provided such statute: (A) requires that
the matter 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."57
Only Federal statutes are included in this exemption.
State statutes, federal rules of court or procedure,
or any other regulation which does not rise to the
level of a statute are not covered by Exemption 3.58
order to qualify, a federal statute must fall within
one of the two categories outlined above. Statutes
which have qualified under subpart (A) include Federal
Rule of Criminal Procedure 6 (e),59
§§ 706 (b) and 709 (e) of Title VII of the Civil Rights
Act of 1964,60
and The Census Act. 61
cases where an agency denies access based on Exemption
3 involve subpart (B) statutes. This subpart allows
statutes which either "provide criteria" for withholding
information or "refer to particular matters to be
withheld." The Consumer Product Safety Act has been
held to "provide criteria" sufficient for subpart
The Supreme Court held that § 102 (d)(3) of the National
Security Act of 1947 "refers to particular matters"
with sufficient narrowness to qualify under the second
subpart of subpart (B). 63
agency using Exemption 3 to deny a FOIA request (or
to provide an incomplete reply) should include an
explanation and a statutory citation. This can be
used as a jumping off point for more complete research
on the specific statute at issue. Incidentally, the
Privacy Act, otherwise known as 5 U.S.C. § 552a, has
been unequivocally held not to qualify under this
exemption (see below).
Commercial Information and Trade Secrets, § 552 (b)(4):
This exemption provides protection for two types of
information within the possession of an agency. It
aims to protect the ability of commercial concerns
to compete by holding on to potentially damaging information.
secrets are specifically protected. The D.C. Circuit
has adopted the common law definition of trade secret
as " 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."64
Note that this is narrower than the definition commonly
applied and recommended by the Restatement of Torts.
Also, this definition should not be confused with
the Federal Trade Secrets Act,65
which also uses a much broader definition.
a final note, the D.C. Circuit has held, significantly,
that if information falls within Exemption 4 of the
FOIA, then it cannot be released under the Trade Secrets
If the information is released, the individual employee
is subject to criminal sanction under that Act, and
the release is presumed to be an abuse of discretion
by the agency, subject to redress in a "reverse FOIA"
lawsuit (see below).67
second category of protected information is more frequently
used as justification for a FOIA request denial. This
information must be "commercial or financial, and
"obtained from a person," and "privileged
or confidential." All three criteria must be met for
information to qualify for this exemption.
words "commercial" and "financial" have been held
to possess their "ordinary meanings."68
Records are commercial so long as the submitter has
a commercial interest in them. Financial records do
not solely pertain to business or commercial records,
but to personal financial records as well.69
person, as defined in the FOIA, can be any number
of entities. A person can be a corporation, a foreign
government, a state government agency, an Indian nation
or tribe; in fact, a person has been held to be just
about anything with the exception of the federal government.70
While I can find no relevant cases, intuition leads
me to believe that fictional characters would not
qualify under this exemption, either.
is not synonymous with "confidential." The great bulk
of the cases argue the meaning of "confidential."
Privilege, in this context, is based upon some privilege
existing under the law. For example, legal documents
generated by lawyers for the Hopi Indians were granted
Exemption 4 status because they were protected by
"attorney - client" and "attorney work product" privilege.71
Some circuits have been inconsistent in application,
occasionally refusing to recognize asserted privileges.72
what types of information can be characterized as
"confidential" has preoccupied much of the case law
generated by Exemption 4. Two important D.C. Circuit
decisions have defined which material may be considered
confidential, and thus exempt.73
is considered confidential if it has either of the
following two effects: (1) it may make it more difficult
for the government to get necessary information in
the future, or (2) it may cause substantial harm to
These two categories were subsequently restricted,
and are only used in disclosure determinations regarding
information which the government requires to be submitted.
Voluntary submissions of information were excluded
from the above test, and now will only be released
if the information is of a type that is customarily
disclosed to the public.75
first category, labeled "prong" in the jargon, is
referred to as the "impairment" prong. As a rule,
for the government to claim that release of information
will impair its ability to get similar information
in the future, the claimed impairment must be significant.
A minor impairment will not serve to exempt a record.76
If the government requires a person to provide information,
it is unlikely that the information will be protected
under this prong. With the Critical Mass
decision excluding voluntary information from scrutiny,
it is rarely asserted.
second prong is called the "competitive harm" prong.
This prong requires the agency to contact the submitter
when a FOIA request is made regarding his or her financial
information, if the agency believes that the FOIA
requires release. The submitter then has an opportunity
to object to the proposed release. Parties objecting
are to be given a reasonable length of time to do
so. This procedure, developed in the courts, has been
reinforced by executive order.77
harm analysis is done by the agency, as well as the
district court, with a great deal of flexibility,
as the nature of competitive markets varies from jurisdiction
to jurisdiction and from year to year. For example,
in one case, an appeals panel decided that release
of customer names would cause competitive harm to
a manufacturer. A year later, upon the death of one
member of the panel, the same court vacated its earlier
Agency Memoranda, § 552 (b)(5): This exemption
excludes from disclosure "inter or intra" agency memoranda
or letters which would not be available to the requesting
party if he or she were in litigation with the agency.
These documents are prepared by the agency for internal
use, or for intra-agency use in the civil litigation
process. This exemption has been interpreted to apply
to documents which are usually protected during the
process of civil discovery.79
exemption, while quite broad, has been narrowed somewhat
by the D.C. Circuit, which has held that the limitations
of the privilege which apply in the courts also apply
in the FOIA context.80
Also, policy guidance from the Justice Department
seems to indicate that this exemption should be narrowly
three privileges most often claimed for FOIA exemption
are the "deliberative process" privilege, attorney
work product privilege, and attorney-client privilege.
process" privilege is designed to protect the agency
decision making process. It includes documents which
tend to impede open and frank agency discussion of
policy, to protect against premature disclosure of
agency policy, and to avoid any public confusion by
premature disclosure of inaccurate or incomplete agency
reasoning behind agency action.82
and attorney work product applies to any documents
which have been prepared in anticipation of litigation.
Attorney-client privilege applies to confidential
communications between an agency and its attorney.
These privileges apply as they would to any private
citizen seeking advice from an attorney.83
Privacy, § 552 (b)(6): This is the first
of two exemptions to the FOIA designed to protect
personal privacy. This exemption only protects personnel,
medical and "similar" files. Personnel files and medical
records are easily identified. The definition of "similar"
files requires more explanation.
Supreme Court has held that the word "similar" should
have a broad definition. All personal information
which applies to a specific person is exempted from
Note, however, that if the records can be rendered
unidentifiable by blacking out portions thereof, or
just eliminating a name, then Exemption 6 may not
apply. If the agency by such "redaction" can eliminate
personal identifiers, then the record should become
records containing personal information are requested,
and the information cannot be simply blacked out,
the agency or the court must apply a balancing test.
It has to figure out whether revealing the information
"could reasonably be expected " to be an "unwarranted
invasion of personal privacy."
agency must first determine whether a privacy interest
exists. If they can't find one, then the information
must be released. If one can be found, another step
is required. The agency must decide whether a real
"public interest" in disclosure exists. "Public interest"
doesn't just mean that inquiring minds want to know.
A FOIA request should rely on some theory parallel
to the purpose of the Act. The agency then attempts
to weigh these out. If the public interest is heavier,
release is mandated.85
An example of information in which there is little
"public interest" is the address and telephone number
of a government employee. The taxpayer has a weightier
interest in that same employee's salary; consequently,
it is not protected.
Supreme Court has issued agencies and lower courts
guidance on how to process information requests which
may qualify for Exemption 6 status.86
This case, referred to as Reporter's Committee,
spells out five principles which should be considered
under Exemption 6 and 7 (C).
first consideration is whether the information requested
is private. This doesn't mean that the information
must be absolutely private to qualify under this exemption.
If the information has been released to the public
at some time in the past, yet it presently is "practically
obscure" or very difficult to find, there may still
be a substantial privacy interest in it.87
Next, as a general rule, the identity of the requester
does not matter in this analysis. The only time the
agency will release information protected under Exemption
6 is where the requester is looking for his own data.
Otherwise, the identity of the requester will not
be taken into consideration.88
Third, the purpose for which the information was requested
will not weigh in the balance. The only question here
is public interest in disclosure, generally.89
Fourth, the only public interests to be considered
in the balance are those which Congress intended the
FOIA to address, that is public awareness of the "agency's
performance of its statutory duties."90
Finally, the Court blessed an agency practice called
"categorical balancing." This device is used by agencies
to protect specific broad categories of information,
without consideration of each individual circumstance.91
For example, agencies have determined that employees'
home addresses are "categorically" protected, and
will never release them pursuant to a FOIA request.
five principles serve to guide the "balancing" of
private and public interests for both Exemption 6
and Exemption 7 (C). Note that Reporter's Committee
was an Exemption 7 (C) case.
Enforcement Investigations, § 552 (b)(7):
This exemption protects records created or compiled
for law enforcement purposes. However, it only protects
records which fall into six specific categories. Note
that certain types of very sensitive law enforcement
records may fall within the statutory exclusions included
below. If a record has been consciously excluded by
an agency, the requester will receive a "no such record
exists" response to their inquiry.
which "could reasonably be expected to interfere with
law enforcement proceedings" is protected from mandatory
disclosure under subpart (A).92
The government must show that an enforcement proceeding
is actually, and not prospectively, pending, and that
release would cause an "articulable" harm.93
Time is a key factor here; the information exempted
may eventually become available depending on the status
of the ongoing investigation.
rarely invoked subpart (B) protects material which
may interfere with the rights of a criminal defendant
to a fair trial. The only case to feature application
of this exemption specified two conditions which the
government must prove for correct application. First,
there must be a trial pending. Second, the requested
information "more likely than not" would interfere
with the fairness or impartiality of the trial.94
Obviously, when the trial is over, such protected
material could lose its protection.
information which can be found in law enforcement
records is protected by subpart (C). The articulated
standard, as in Exemption (6), is whether the information
"could reasonably be expected" to be an "unwarranted
invasion of personal privacy." Despite the similar
language, Exemption (7)(C) is different, covering
more information and lending itself more easily to
For example, information regarding third parties mentioned
in law enforcement records is universally exempt.96
The identities of people who were subjects of an investigation,
those who were consulted by investigators, as well
as law enforcement personnel involved in the investigation,
are protected here.
if there has been blatant and obviously abusive or
illegal behavior on the part of enforcement personnel,
courts have allowed access to his or her name.97
The privacy interest here is a hardy one, and is not
extinguished by time as in (b)(7)(A) and (B). The
Reporter's Committee case, outlined under
Exemption (b)(6) above, contains guidelines for proper
balancing of public and private interests. Note that
the privacy interests of third parties mentioned in
these enforcement records are very, very strong.
to protect the identities of confidential sources,
subpart (D) covers a wide variety of information,
including information about foreign sources, state,
local or other governmental sources and private institutional
sources. The absolute need to protect confidential
sources from retaliation has led to expansive interpretation
of this exemption by the courts. Practically, the
only non-protected sources are federal law enforcement
agencies. The information provided by the source must
actually be confidential to qualify for protection
here. But once that requirement is met, agencies are
required to withhold any personal information, even
peripheral information which might be compiled by
a clever requester to identify them.
(E) protects manuals, training tools, law enforcement
techniques or any prosecution or investigation guidelines
which "could reasonably be expected" to be used by
the requester to circumvent the law. Any information
which is not intended to be generally known to the
public could fall within this exemption.
the release of information "could reasonably be expected"
to cause physical harm to an individual, it may not
be released. Initially, subpart (F) was only applied
to law enforcement officers. It was expanded in 1986
to include "individuals," which basically means anyone
who may be placed at harm by disclosure.
Regulated Banks, § 552 (b)(8): This provision
exempts documents prepared for purposes of federal
banking regulators. Documents included in this very
broadly interpreted exemption are bank examination
reports, documents "relating" to these reports, and
even internal memoranda containing information about
the status of a bank. Just about any record documenting
the stability (or lack thereof) of a federally regulated
financial institution is going to be considered exempt
from FOIA access.98
should be noted that even records containing information
about financial institutions which are no longer in
existence can be safely withheld from public scrutiny
under this exemption, to promote cooperation between
regulators and current bank officials.99
the only type of information which can be released
under this exemption are reports prepared by a federal
banking agency's inspector general which details a
significant payout from the Federal Deposit Insurance
Fund to bail out a financial institution. This report
can contain, however, no personal information about
the bank's account holders.100
and Gas Wells, § 552 (b)(9): Rarely invoked,
this exemption has been held to cover only information
of a scientific or technical nature relating to these
No other cases apply this exemption with enough gusto
to assist in its interpretation.
§ 552 (c): Amendments to the FOIA enacted
in 1986 established three categories of law enforcement
information which are so sensitive that they have
been purposefully excluded from the FOIA by act of
Congress. There is a difference between exclusion
and the "Glomar" response. An agency relying
on Glomar will refuse to admit or deny the
existence of a record. The response received by a
requester where exclusion has been applied is called
a "no records" response. The agency will simply state
that no records exist which would comply with the
agency will go to great lengths to protect excluded
information. If challenged by a requester, the agency
will handle the case carefully, automatically filing
a request for in camera examination of an affidavit.
Where exclusion has been utilized, the affidavit will
state why. If exclusion has not been invoked, the
affidavit will explain that it is a subterfuge to
protect the overall exclusion process. The agency
will also ask that any public decision of the court
be worded so as to avoid interpretation as an exclusion
(c)(1) takes records about an ongoing investigation
which are within the (b)(7)(A) exemption and gives
them even more secrecy. Under Exemption (b)(7), the
agency can pretend that the requested records do not
even exist. To qualify, these records must meet (b)(7)
criteria and must be regarding an ongoing criminal
This exemption is used when the very existence of
an investigation may tip off the suspect, who subsequently
winds up in Bogota.
(c)(2) attempts to anticipate a very clever FOIA request
in which there is a substantial likelihood that the
required answer under Exemption (b)(7)(D) would nevertheless
reveal the identity of a confidential source. The
scenario, as outlined by the Attorney General,104
runs this way. The leaders of a criminal enterprise
suspect that they have been infiltrated by a hated
stoolpigeon. Each participant is then forced by the
evil cartel to file a FOIA request, demanding all
law enforcement files about themselves. The agency,
by invoking (b)(7)(D) in only one case, gives away
the stoolie. This turn of events can now safely be
avoided. The agency can pretend that no records are
responsive to the requests.
(c)(3) only involves records maintained by the Federal
Bureau of Investigation (FBI), and in particular records
pertaining to Bureau activities in foreign intelligence,
counterintelligence and against international terrorism.
At times, the FBI may receive a request that qualifies
for denial under Exemption 1. The agency may determine
that a response indicating that no records are currently
being maintained would divulge information which would
have an adverse effect on the interests of the government.105
Exclusion allows highly sensitive records to be protected
remedy for a requester denied under the FOIA, who
has exhausted his or her administrative remedies,106
is a lawsuit in the federal district court. The requester
may file in his or her own district, or in the D.C.
Circuit, which always has jurisdiction over, and is
proper venue for, FOIA suits. It should be noted again
that the defendant agency bears the initial burden
of proving that it has legitimately withheld the information
FOIA provides for a statutory "shifting" of attorney
fees and litigation expenses if the plaintiff has
"substantially prevailed." The plaintiff must meet
eligibility criteria first, whereupon the court may
shift the costs at its discretion.107
Generally, a requester who represents him or herself
without an attorney (pro se) will not qualify for
The court may award this person the reasonable costs
of the lawsuit (but not costs incurred during the
disgruntled requester should be careful prior to filing
suit if he or she wishes to shift costs. A court cannot
award fees and costs just because a lawsuit was filed
and records were released. In order to qualify, a
plaintiff must "substantially prevail," which means
that he or she must prove that but for the lawsuit,
the information would not have been released.110
Essentially, the plaintiff must prove that he or she
was instrumental in the release of the records.111
Whether he or she is successful or not is left to
the discretion of the court.
which have submitted information to a federal agency,
only to have that information subsequently subjected
to a FOIA request from a third party, have in the
past brought suit to prevent disclosure. This type
of suit is referred to as a "reverse FOIA" lawsuit.
There has been much confusion as to whether the FOIA
actually authorized these actions.
definitive word on the matter was delivered by the
Supreme Court in Chrysler Corp. v. Brown.112
The Court held that jurisdiction could not lie with
the FOIA, and could not be based upon the Federal
Trade Secret Act.113
Rather, it must be brought under the Administrative
as an arbitrary and capricious abuse of discretion
by the agency. Practically, this means that the reviewing
court must usually rely upon the administrative record
in formulating its decision, with de novo authority
reserved for cases where the administrative record
is "severely defective."115
Agencies will generally take care to establish an
extensive administrative record when dealing with
requests for corporate or business information.
5 U.S.C. § 552a, a.k.a. the Privacy Act, became effective
on September 27, 1975. The 93rd Congress passed this
Act very quickly in the final week of the 1974 congressional
session. It was enacted in reaction to revelations
of illegal government surveillance which surfaced
during the Watergate investigations. The Act was never
sent to conference committee to reconcile differences
in the House and Senate versions; rather, the staffs
of the respective committees hammered out compromise
amendments which were subsequently enacted by both
houses of Congress.116
The result of such haste is a statute which is imprecise,
has a limited legislative history and is quite difficult
to apply and interpret. It does, however, mean well.
Privacy Act is not a statute exempted from the FOIA
under § 552 (b)(3). U.S. Department of Justice
addresses this question. This case specifically states
that the Privacy Act does not fit into an exemption
within the FOIA.
Privacy Act is intended to protect an individual's
privacy from unwarranted government invasion through
the collection, maintenance, use and disclosure of
personal information about them. The Act establishes
rights of access to your own personal information,
and a variety of procedures whereby you can ensure
that your files are accurate and secure. Information
covered by the Privacy Act may not be disclosed to
third party requesters, with several exceptions. The
Office of Management and the Budget (OMB) is saddled
with the responsibility of developing regulations
implementing the Act, and has oversight responsibilities
for their application.118
fall within the purview of the Privacy Act, the record
must fit into a tighter definition than the recognized
FOIA one. The Privacy Act states, "No agency shall
disclose any record which is contained in a system
of records by any means of communication to any person,
or to another agency, except pursuant to a written
request by, or with the prior written consent of,
the individual to whom the record pertains[,]" with
twelve enumerated exceptions.119
Three terms used by this Act are important to understand.
in the FOIA, this Act applies only to federal "agencies."120
The only exception to this blanket rule is held within
a portion of the Privacy Act which was not codified,
referred to as Section 7,121
which restricts the use of Social Security numbers
by state and local government agencies as well.
Act coverage extends to records contained in a system
of records. Privacy Act "records" aren't merely information,
in whatever form. They must be included within a "system."
A system of records is a group of records maintained
by an agency from which information about an individual
can be retrieved using any kind of personal identifier,
like a Social Security number, a name, or some other
symbol used to identify an individual. A system of
records exists only if the system has built-in indexing
by identifier, and the agency actually uses the indexing
system to retrieve the record.122
Records are covered by the Privacy Act only if they
are actually retrieved by personal identifier.123
This is an important point, and Privacy Act lawsuits
sometimes hinge on whether the record is technically
within a "system." It should be noted that this "actual
retrieval" requirement has been criticized, and disregarded,
by several circuits.124
a requester under the Privacy Act is narrower than
that in the FOIA. An "individual" under the Privacy
Act is either a citizen of the United States or a
lawful, permanent resident alien. Note that this definition
does not extend to either of the above if they're
dead; the rights created under §552a die with the
individual. Privacy Act protection does not pass to
the estate or relatives of the decedent.125
Privacy Act and the FOIA grant separate rights of
access for individuals to information. However, in
the spirit of open government, agencies have received
policy guidance to treat a request received under
either as a request under both.126
FOIA and the Privacy Act do not stand alone. There
are many other specific statutes which regulate the
disclosure of information to third parties. It is
probably not necessary to know them all, but an awareness
that some types of very sensitive information, such
as information about HIV/AIDS infection or treatment,
alcohol or drug abuse and treatment, mental health
and other subjects, may be protected by special congressional
enactment for privacy related purposes. Those statutes
may or may not be consistent with the FOIA and the
Privacy Act. For example, notwithstanding the provisions
of FOIA or the Privacy Act, information about the
HIV infection and treatment of a patient at a veterans
hospital will remain protected beyond his death.127
NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214, 242 (1978).
United States Department of Justice v. Reporters
Committee for Freedom of the Press, 489 U.S.
749, 773 (1989).
This Memorandum can be found in 29 Weekly Comp.
Pres. Doc. 1999 (Oct. 4, 1993). Additionally, it was
reprinted in the FOIA Update, Summer/Fall
1993, at 3.
FOIA Update, Summer/Fall 1993, at 4.
This is a memorandum from Attorney General Janet Reno
dated October 4, 1993, broadening the presumption
of disclosure and setting guidelines by which the
Department of Justice will decide to defend agency
actions in FOIA litigation.
NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 136 (1975).
Chrysler Corp. v. Brown, 441 U.S. 281,
See note 4 for memo citation.
Litigation Guidelines issued by Justice in 1981,
revoked by memo referenced above.
Soucie v. David, 448 F. 2d 1067 (C.A.D.C.
1971): see also Rushforth v. Council of Economic
Advisors, 762 F.2d 1038, 1042-43 (D.C. Cir. 1985),
for an excellent discussion of the "sole function"
test and the legislative history behind this definition.
United States Department of Justice v. Taw
Analysts, 492 U.S. 136. 144-45 (1989).
Cleary, Gottleib, Steen & Hamilton v.
HHS, 844 F. Supp. at 782. See also FOIA Update,
Fall 1994 at 4-5.
Cleary, Gottleib, Steen & Hamilton v.
HHS, 844 F. Supp. at 782. See also FOIA Update,
Fall 1990 at 3-6, explaining format choices for electronic
Tuchinsky v. Selective Service System,
418 F. 2d 155, 158 (7th Cir. 1969).
See Gallant v. NLRB, 26 F.3d 168 (D.C.
Cir. 1994); Bureau of National Affairs v. United
States Department of Justice, 742 F.2d 1484 (D.C.
Cir. 1984); Kalmin v. Department of the Navy,
605 F.Supp 1492 (D. D.C. 1985) as representative samples
of these cases.
5 U.S.C. § 551(2).
Doyle v. U.S. Department of Justice,
494 F.Supp 842 (D.D.C. 1980), aff'd, 668
F.2d 1365 (D.C. Cir. 1981), cert. denied,
455 U.S. 1002 (1982).
See Brumley v. U.S. Department of Labor,
767 F. 2d 444, 445 (8th Cir. 1985), for explanation
and legislative history (1974 Amendments to FOIA).
See note 3 and 4.
Pollack v. Department of Justice, 49
F. 3d at 120; Irons V. F.B.I., 571 F. Supp.
1241, 1243 (D. Mass. 1983).
5 U.S.C. § 552(a)(1).
5 U.S.C. § 552(a)(2).
NLRB v. Sears, Roebuck & Co., 421
U.S. at 153-54 (1975).
Welch v. United States, 750 F.2d 1101,
1111 (1st Cir. 1985).
5 U.S.C. § 552(a)(3).
This isn't a formal requirement. However, it is
important to know the exact date upon which the agency
received the request.
5 U.S.C. § 552(a)(6)(A)(i).
Open America v. Watergate Special Prosecution
Force, 547 F. 2d 605, 614-15 (D.C. Cir. 1976).
FOIA Update, Summer 1983, at 3.
This Memorandum was prepared by the Office of
Information and Privacy, and reprinted in FOIA
Update, Spring 1994, at 2.
See note 28 for citation.
5 U.S.C. § 552(a)(6)(A)(ii).
Oglesby v. U. S. Department of the Army,
920 F. 2d 57, 61-65 (D.C. Cir. 1990). Beware, as courts
will often grant agencies the time they claim to need
to process the request. If the agency complies, you
will not collect any costs.
See 5 U.S.C. § 552(a)(4)(B)-(C). Also, "de novo"
is a legal term of art meaning "anew" or "afresh."
In this instance, this means that the Court does not
have to rely on agency findings to make its decision.
52 Federal Register 10,011 (1987).
FOIA Update, Winter/Spring 1987 at 4,
citing 5 U.S.C. §552 (a)(4)(A)(ii).
5 U.S.C. § 552(a)(4)(A)(iv)(I) - (II).
835 F. 2d 1282, 1286 (9th Cir. 1987); see also
Sloman v. United States Department of Justice,
832 F. Supp. 63, 67-68 (S.D. N.Y. 1993).
First established in EPA v. Mink, 410
U.S. 73, 91 (1973).
Vaughn v. Rosen, 484 F. 2d 820 (D.C.
Cir. 1973); cert. denied, 415 U.S. 977 (1973).
The President classifies certain types of records
confidential, secret or top secret. The current order
is Executive Order 12958, effective date October 14,
1995. This superseded E.O. 12356, effective date April
Executive Order No. 12958, § 1.2(a)(4).
EPA v. Mink, 410 U.S. 73 (1973).
5 U.S.C. § 552(a)(4)(B).
The first case in this line was Donovan v.
F.B.I., 806 F. 2d 55 (2d Cir. 1986).
In re United States Department of Justice,
No, 87-1205, slip op. and 4-5 (4th Cir. April 7, 1988).
Hayden v. NSA, 608 F. 2d 1381, 1385-86
(D.C. Cir. 1989); cert. denied, 446 U.S.
Named after the case establishing this response,
Phillippi v. C.I.A., 546 F. 2d 1009 (D.C.
Cir. 1976), which involved the submarine retrieval
vessel "Glomar Explorer."
For similar case, see Miller v. Casey,
730 F. 2d 773 (D.C. Cir. 1984).
King v. Department of Justice, 830 F.
2d 210, 217 (D.C. Cir. 1987).
Baez v. United States Department of Justice,
647 F. 2d 1328, 1333 (D.C. Cir. 1980).
Founding Church of Scientology v. Smith,
721 F. 2d 828, 830-31 (D.C. Cir. 1983).
Martin v. Lauer, 686 F. 2d 24, 34 (D.C.
Department of the Air Force v. Rose,
425 U.S. 352, 365-70 (1976); an Exemption 2 case with
significant explanatory value.
Based on the memoranda from note 3 and 4.
Kuffel v. U.S. Bureau of Prisons, 882
F. Supp. 1116, 1123 (D.D.C. 1995); see also Cox
v. U.S. Department of Justice, 601 F. 2d 1, 4-5
(D.C. Cir. 1979).
5 U.S.C. § 552(b)(3) (1994).
Founding Church of Scientology v. Bell,
603 F.2d 945, 952-53 (D.C. Cir. 1979).
Surprise! This "rule," protecting certain Grand
Jury material, qualifies because the Congress singled
it out for special amendment in 1977. See Fund
for Constitutional Government v. National Archives
and Records Service, 656 F. 2d 856, 867 (D.C.
American Centennial Insurance Co. v. Equal
Employment Opportunity Commission, 772 F. Supp.
180, 183 (D. N. J. 1989); at issue was a request for
information about pending cases, held not disclosable.
13 U.S.C. §§ 8(b), 9(a); see Baldrige v. Shapiro,
455 U.S. 345 (1982), for opinion supporting this designation.
Case involved a request for a partial address list
used by Bureau of the Census employees.
15 U.S.C. § 2055(b)(1); see Consumer Product
Safety Commission v. GTE Sylvania, Inc., 447
U.S. 102, 122 (1980), for corresponding opinion.
50 U.S.C. § 403-3 (c)(5); this section requires
the Director of Central Intelligence to protect "sources
and methods." See C.I.A. v. Sims, 471 U.S.
159, 167 (1980) for corresponding opinion.
Public Citizen Health Research Group v. FDA,
704 F. 2d 1280, 1288 (D.C. Cir. 1983).
18 U.S.C. § 1905 (1993), note that Title 18 is
the Federal Criminal Code.
CNA Financial Corporation v. Donovan,
830 F. 2d 1132, 1402 (D.C. Cir. 1987); cert. denied,
485 U.S. 977 (1988).
National Organization for Women v. Social
Security Administration, 736 F. 2d 727, 743 (D.C.
Ibid, at 1290.
Washington Post Company v. United States Department
of Health and Human Services, 690 F. 2d 252,
265-66 (D.C. Cir. 1982).
Allnet Communication Services v. FCC,
800 F. Supp. 984, 988 (D.D.C. 1992).
Indian Law Resource Center v. Department of
the Interior, 477 F. Supp. 144, 148 (D.D.C. 1979).
Anderson v. HHS, 907 F. 2d 936 (10th
National Parks Conservation Association v.
Morton, 498 F. 2d 765 (D.C. Cir. 1974) (establishing
two prong test for confidentiality); Critical
Mass Energy Project v. NRC, 975 F. 2d 871 (D.C.
Cir. 1992); cert. denied 507 U.S. 984 (1993)
(establishing different standards for "required" and
"voluntarily" reported information).
National Parks, at 770.
Discussion of these two categories can be found
in longer form in Critical Mass, at 880,
Washington Post Company v. HHS, 690 F.
2d at 269.
Found at 3 C.F.R. 235 (1988).
Greenberg v. FDA, 775 F. 2d 1159 (D.C.
Cir. 1985), vacated, 803 F. 2d 1213 (D.C.
NLRB v. Sears Roebuck & Co., 421
U.S. 132, 149 (1975).
United States Department of Justice v. Julian,
486 U.S. 1, 13 (1988).
FOIA Update, Spring 1994.
NLRB v. Sears Roebuck & Co., 421
U.S. 132, 150-51 (1975).
Coastal States Gas Corp. v. Department of
Energy, 617 F. 2d 854, 863 (D.C. Cir. 1980).
U.S. Department of State v. Washington Post
Co., 456 U. S. 595 (1982).
Ripskis v. HUD, 746 F. 2d 1, (D.C. Cir.
U.S. Department of Justice v. Reporter's Committee
for Freedom of the Press, 489 U.S. 749 (1989);
see also for DOJ guidance re: privacy; FOIA Update,
Spring 1989 at 7.
Reporter's Committee, at 762.
Ibid, at 771.
Ibid, at 771.
Ibid, at 773.
Ibid, at 780.
5 U.S.C. § 552(b)(7)(A), 1986 Amendment to the
NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978).
Washington Post Co. v. U.S. Department of
Justice, 863 F. 2d 96, 100-102 (D.C Cir. 1988).
SafeGuard Services v. SEC, 926 F. 2d
1197 (D.C. Cir. 1991).
Ibid at 1206.
Stern v. FBI, 737 F. 2d. 87, 94 (D.C.
See Gregory v. FDIC, 631 F. 2d 896, 898
(D.C. Cir. 1980), for the kind of broad language that
secretive banking regulators particularly enjoy.
Ibid, at 899.
12 U.S.C. § 1831o(k)(1993). Note also that this
provision became effective on or after July 1, 1993.
Black Hills Alliance v. United States Forest
Service, 603 F. Supp. 117, 122 (D.S.D. 1984).
Attorney General's Memorandum on the
1986 Amendments to the FOIA at 30 (Dec. 1987).
Ibid, at 20.
Ibid, at 29.
Ibid, at 25.
See "Procedure and Timing," Section IV of this
Weisberg v. U.S. Department of Justice,
745 F. 2d 1476, 1495 (D.C. Cir. 1984).
Carter v. VA, 780 F. 2d 1479, 1481 (9th
Cir. 1986); previously, only D.C. Circuit awarded
pro se attorney fees, but was constrained to reverse
after Kay v. Ehrler, 499 U.S. 432 (1991),
holding such awards under a similar statute were not
Carter v. VA, at 1481-82.
Church of Scientology v. Harris, 653
F. 2d 584, 586-87 (D.C. Cir. 1981); also Maynard
v. CIA, 986 F. 2d 547, 568 (1st Cir. 1993).
Here is where the plaintiff who is suing based
on constructive exhaustion of administrative remedies
needs to be careful. When the agency prays for more
time, and then releases the records, it is unlikely
that the much poorer plaintiff has been "instrumental."
441 U.S. 281 (1979).
18 U.S.C. § 1905 (Supp. V 1993).
5 U.S.C. §§ 701-06 (1994).
National Organization for Women v. Social
Security Administration, 736 F. 2d 727, 744-45
(D.C. Cir. 1984) (per curiam).
120 Congressional Record 40,405-09, 40,881-83
105 S.Ct. 413 (1984).
5 U.S.C. § 552a(v)(1) - (2).
5 U.S.C. § 552a (b). The 12 exceptions can be
found enumerated therein.
OMB Guidelines, 40 Federal Register 28,950-51
(1975); see also NLRB v. United States Postal
Service, 841 F. 2d 141, 144 (6th Cir. 1988).
Found at 5 U.S.C. § 552a (note).
OMB Guidelines, 40 Federal Register 28,948, 28,952
Barhorst v. Marsh, 765 F. Supp. 995,
999-1000 (E.D. Mo. 1991); Fagot v. FDIC,
584 F. Supp. 1168, 1175 (D.P.R. 1084); affirmed
in part per curiam, 760 F. 2d 252 (1st Cir. 1985).
This is convenient language for an agency bent on
holding onto a record.
Bartel v. FAA, 725 F. 2d 1403, 1408-11
(D.C. Cir. 1984); Sterling v. United States,
798 F. Supp. 47, 49 (D.D.C. 1992); see also Sterling
v. United States, 826 F. Supp. 570, 571-72 (D.D.C.
1993) (subsequent opinion); Kassel v. VA,
709 F. Supp. 1194, 1201 (D.N.H. 1989).
5 U.S.C. § 552a(a)(2); OMB Guidelines, 40 Federal
Register 28,948-51 (1975).
FOIA Update, Winter 1996 at 5.
38 U.S.C. § 7331.