The 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

The 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."

Any 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.

The 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.

The 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

The 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.

Any 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.

In 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

Section 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 procedures.21 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 decisions.24

Section 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

All 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

In 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.

The 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 denied.33 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

The current fee structure for FOIA purposes was finalized by the Office of Management and the Budget (OMB) in 1987, 35 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

Level (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.

Level (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 of charge.37

The 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. Carlucci.38

For 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.

The 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.

The 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.

National 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.

Where 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

Prior 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" status.45 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

Some 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).

The 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.

Suffice 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 field.

Internal 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

"Low 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

"High 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

Exempted 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

In 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

Most 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 B status.62 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

An 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).

Confidential 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.

Trade 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.

As 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 Act.66 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

The 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.

The 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

A 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.

"Privileged" 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

Exactly 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

Information 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 the submitter.74 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

The 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.

The 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

Competitive 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 decision.78

Internal 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

The 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 applied.81

The three privileges most often claimed for FOIA exemption are the "deliberative process" privilege, attorney work product privilege, and attorney-client privilege.

"Deliberative 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

Attorney-client 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

Personal 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.

The 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 disclosure.84 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 available.

If 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."

The 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.

The 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).

The 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.

These 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.

Law 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.

Information 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.

The 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.

Personal 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 "categorization."95 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.

Rarely, 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.

Designed 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.

Subpart (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.

If 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.

Federally 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

It 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

About 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

Oil 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 wells.101 No other cases apply this exemption with enough gusto to assist in its interpretation.

Exclusions, 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 request.

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 case.102

Subsection (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 investigation.103 This exemption is used when the very existence of an investigation may tip off the suspect, who subsequently winds up in Bogota.

Subsection (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.

Subsection (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 completely.

The 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 requested.

The 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 fees.108 The court may award this person the reasonable costs of the lawsuit (but not costs incurred during the administrative process).109

A 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.

Corporations 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.

The 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 Procedure Act114 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.

Title 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.

The Privacy Act is not a statute exempted from the FOIA under 552 (b)(3). U.S. Department of Justice v. Provenzano117 addresses this question. This case specifically states that the Privacy Act does not fit into an exemption within the FOIA.

The 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

To 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.

As 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.

Privacy 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

Again, 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

The 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

The 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

1. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

2. United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773 (1989).

3. 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.

4. 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.

5. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975).

6. Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979).

7. See note 4 for memo citation.

8. Ibid.

9. Litigation Guidelines issued by Justice in 1981, revoked by memo referenced above.

10. 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.

11. United States Department of Justice v. Taw Analysts, 492 U.S. 136. 144-45 (1989).

12. Cleary, Gottleib, Steen & Hamilton v. HHS, 844 F. Supp. at 782. See also FOIA Update, Fall 1994 at 4-5.

13. 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 records.

14. Tuchinsky v. Selective Service System, 418 F. 2d 155, 158 (7th Cir. 1969).

15. 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.

16. 5 U.S.C. 551(2).

17. 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).

18. 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).

19. See note 3 and 4.

20. Pollack v. Department of Justice, 49 F. 3d at 120; Irons V. F.B.I., 571 F. Supp. 1241, 1243 (D. Mass. 1983).

21. 5 U.S.C. 552(a)(1).

22. 5 U.S.C. 552(a)(2).

23. NLRB v. Sears, Roebuck & Co., 421 U.S. at 153-54 (1975).

24. Welch v. United States, 750 F.2d 1101, 1111 (1st Cir. 1985).

25. 5 U.S.C. 552(a)(3).

26. This isn't a formal requirement. However, it is important to know the exact date upon which the agency received the request.

27. 5 U.S.C. 552(a)(6)(A)(i).

28. Open America v. Watergate Special Prosecution Force, 547 F. 2d 605, 614-15 (D.C. Cir. 1976).

29. FOIA Update, Summer 1983, at 3.

30. This Memorandum was prepared by the Office of Information and Privacy, and reprinted in FOIA Update, Spring 1994, at 2.

31. See note 28 for citation.

32. 5 U.S.C. 552(a)(6)(A)(ii).

33. 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.

34. 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.

35. 52 Federal Register 10,011 (1987).

36. FOIA Update, Winter/Spring 1987 at 4, citing 5 U.S.C. 552 (a)(4)(A)(ii).

37. 5 U.S.C. 552(a)(4)(A)(iv)(I) - (II).

38. 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).

39. First established in EPA v. Mink, 410 U.S. 73, 91 (1973).

40. Vaughn v. Rosen, 484 F. 2d 820 (D.C. Cir. 1973); cert. denied, 415 U.S. 977 (1973).

41. 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 4, 1982.

42. Executive Order No. 12958, 1.2(a)(4).

43. EPA v. Mink, 410 U.S. 73 (1973).

44. 5 U.S.C. 552(a)(4)(B).

45. The first case in this line was Donovan v. F.B.I., 806 F. 2d 55 (2d Cir. 1986).

46. In re United States Department of Justice, No, 87-1205, slip op. and 4-5 (4th Cir. April 7, 1988).

47. Hayden v. NSA, 608 F. 2d 1381, 1385-86 (D.C. Cir. 1989); cert. denied, 446 U.S. 937 (1980).

48. 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."

49. For similar case, see Miller v. Casey, 730 F. 2d 773 (D.C. Cir. 1984).

50. King v. Department of Justice, 830 F. 2d 210, 217 (D.C. Cir. 1987).

51. Baez v. United States Department of Justice, 647 F. 2d 1328, 1333 (D.C. Cir. 1980).

52. Founding Church of Scientology v. Smith, 721 F. 2d 828, 830-31 (D.C. Cir. 1983).

53. Martin v. Lauer, 686 F. 2d 24, 34 (D.C. Cir. 1982).

54. Department of the Air Force v. Rose, 425 U.S. 352, 365-70 (1976); an Exemption 2 case with significant explanatory value.

55. Based on the memoranda from note 3 and 4.

56. 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).

57. 5 U.S.C. 552(b)(3) (1994).

58. Founding Church of Scientology v. Bell, 603 F.2d 945, 952-53 (D.C. Cir. 1979).

59. 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. Cir. 1981).

60. 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.

61. 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.

62. 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.

63. 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.

64. Public Citizen Health Research Group v. FDA, 704 F. 2d 1280, 1288 (D.C. Cir. 1983).

65. 18 U.S.C. 1905 (1993), note that Title 18 is the Federal Criminal Code.

66. CNA Financial Corporation v. Donovan, 830 F. 2d 1132, 1402 (D.C. Cir. 1987); cert. denied, 485 U.S. 977 (1988).

67. National Organization for Women v. Social Security Administration, 736 F. 2d 727, 743 (D.C. Cir. 1984).

68. Ibid, at 1290.

69. Washington Post Company v. United States Department of Health and Human Services, 690 F. 2d 252, 265-66 (D.C. Cir. 1982).

70. Allnet Communication Services v. FCC, 800 F. Supp. 984, 988 (D.D.C. 1992).

71. Indian Law Resource Center v. Department of the Interior, 477 F. Supp. 144, 148 (D.D.C. 1979).

72. Anderson v. HHS, 907 F. 2d 936 (10th Cir. 1990).

73. 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).

74. National Parks, at 770.

75. Discussion of these two categories can be found in longer form in Critical Mass, at 880, then 877-79.

76. Washington Post Company v. HHS, 690 F. 2d at 269.

77. Found at 3 C.F.R. 235 (1988).

78. Greenberg v. FDA, 775 F. 2d 1159 (D.C. Cir. 1985), vacated, 803 F. 2d 1213 (D.C. Cir. 1986).

79. NLRB v. Sears Roebuck & Co., 421 U.S. 132, 149 (1975).

80. United States Department of Justice v. Julian, 486 U.S. 1, 13 (1988).

81. FOIA Update, Spring 1994.

82. NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150-51 (1975).

83. Coastal States Gas Corp. v. Department of Energy, 617 F. 2d 854, 863 (D.C. Cir. 1980).

84. U.S. Department of State v. Washington Post Co., 456 U. S. 595 (1982).

85. Ripskis v. HUD, 746 F. 2d 1, (D.C. Cir. 1984).

86. 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.

87. Reporter's Committee, at 762.

88. Ibid, at 771.

89. Ibid, at 771.

90. Ibid, at 773.

91. Ibid, at 780.

92. 5 U.S.C. 552(b)(7)(A), 1986 Amendment to the FOIA.

93. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978).

94. Washington Post Co. v. U.S. Department of Justice, 863 F. 2d 96, 100-102 (D.C Cir. 1988).

95. SafeGuard Services v. SEC, 926 F. 2d 1197 (D.C. Cir. 1991).

96. Ibid at 1206.

97. Stern v. FBI, 737 F. 2d. 87, 94 (D.C. Cir. 1984).

98. 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.

99. Ibid, at 899.

100. 12 U.S.C. 1831o(k)(1993). Note also that this provision became effective on or after July 1, 1993.

101. Black Hills Alliance v. United States Forest Service, 603 F. Supp. 117, 122 (D.S.D. 1984).

102. Attorney General's Memorandum on the 1986 Amendments to the FOIA at 30 (Dec. 1987).

103. Ibid, at 20.

104. Ibid, at 29.

105. Ibid, at 25.

106. See "Procedure and Timing," Section IV of this document.

107. Weisberg v. U.S. Department of Justice, 745 F. 2d 1476, 1495 (D.C. Cir. 1984).

108. 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 authorized.

109. Carter v. VA, at 1481-82.

110. 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).

111. 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."

112. 441 U.S. 281 (1979).

113. 18 U.S.C. 1905 (Supp. V 1993).

114. 5 U.S.C. 701-06 (1994).

115. National Organization for Women v. Social Security Administration, 736 F. 2d 727, 744-45 (D.C. Cir. 1984) (per curiam).

116. 120 Congressional Record 40,405-09, 40,881-83 (1974).

117. 105 S.Ct. 413 (1984).

118. 5 U.S.C. 552a(v)(1) - (2).

119. 5 U.S.C. 552a (b). The 12 exceptions can be found enumerated therein.

120. 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).

121. Found at 5 U.S.C. 552a (note).

122. OMB Guidelines, 40 Federal Register 28,948, 28,952 (1975).

123. 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.

124. 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).

125. 5 U.S.C. 552a(a)(2); OMB Guidelines, 40 Federal Register 28,948-51 (1975).

126. FOIA Update, Winter 1996 at 5.

127. 38 U.S.C. 7331.