Difference between revisions of "Freedom of Information Act"

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*James R. O’Reilly, ''Federal Information Disclosure'' ''2014-1 ed.'' (Thomson Reuters 2014).
 
*James R. O’Reilly, ''Federal Information Disclosure'' ''2014-1 ed.'' (Thomson Reuters 2014).
  
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===Agency Websites===
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===Books and Articles===
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Pursuant to Executive Order 13,392, [https://www.govinfo.gov/content/pkg/FR-2005-12-19/pdf/05-24255.pdf Improving Agency Disclosure of Information], all agencies maintain websites providing information on how the agency complies with that executive order and the FOIA.
 
  
 
==Statutory Provisions==
 
==Statutory Provisions==

Revision as of 17:37, 11 December 2018

5 U.S.C. § 552 (2012); enacted by Pub. L. No. 89-554, § 1, 80 Stat. 383, Sept. 6, 1966; amended by Pub. L. No. 90-23, § 1, 81 Stat. 54, June 5, 1967; by Pub. L. No. 93-502, §§ 1-3, 88 Stat. 1561–64, Nov. 21, 1974; by Pub. L. No. 94-409, § 5(b), 90 Stat. 1247, Sept. 13, 1976; by Pub. L. No. 95-454, Title IX, § 906(a)(10), 92 Stat. 1225, Oct. 13, 1978; by Pub. L. No. 98-620, Title IV, § 402(2) 98 Stat. 3357, Nov. 8, 1984; by Pub. L. No. 99-570, Title I, §§ 1802, 1803, 100 Stat. 3207-48, 3207-49, Oct. 27, 1986; by Pub. L. No. 104-231, §§ 3–11, 110 Stat. 3049, Oct. 2, 1996; by Pub. L. No. 107-306, Title III, § 312, 116 Stat. 2390, Nov. 27, 2002; by Pub. L. No. 110-175, §§ 3, 4(a), 5, 6(a)(1), (b)(1), 7(a), 8–10(a), 12, 121 Stat. 2525, 2526, 2527, 2530, Dec. 31, 2007; by Pub. L. No. 111-83, Title V, § 564(b), 123 Stat. 2184, Oct. 28, 2009; by Pub. L. No. 114-185, 130 Stat. 538, June 30, 2016.

Lead Agency:

Department of Justice, Office of Information and Privacy; Office of Information and Privacy FOIA Resources

Overview

The Freedom of Information Act (FOIA) requires all agencies (1) to publish certain items of information in the Federal Register, (2) to make available for public inspection in an electronic format certain other items of information, and (3) to make certain agency records available to any members of the public upon request for such records. As stated in the Memorandum for the Heads of Executive Departments and Agencies, signed by President Barack Obama on January 21, 2009, the purposes of the FOIA are to promote “accountability through transparency.” The Memorandum called on agencies to “adopt a presumption in favor of disclosure.”

Federal Register Publication

Each agency is required (5 U.S.C. § 552(a)(1)) to publish in the Federal Register:

  • descriptions of its central and field organization and the established places at which, the employees (and, in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
  • statements of the general course and method by which its functions are determined and assigned, including the nature and requirements of all formal and informal procedures available;
  • rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
  • substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency;
  • each amendment, revision, or repeal of the foregoing.

If any listed item is not so published, persons without actual and timely notice of the substance of the items may not be required to conform their behavior to, or be adversely affected by, the item. These publication requirements apparently cannot be judicially enforced except with respect to those who are adversely affected by the agency rule and do not have actual and timely notice of it. See United States v. Mowat, 582 F.2d 1194, 1201 n.5 (9th Cir. 1978).

With the approval of the Director of the Federal Register, matters reasonably available to the class of persons affected may be deemed published in the Federal Register if agencies incorporate them by reference.

The 2016 amendments required publication in the Federal Register of procedures for engaging in dispute resolution through the agency’s FOIA Public Liaison and the Office of Information and Government Services.

Opinions, Orders, Interpretations, Manuals, Previously Requested Records

Adjudicative orders and opinions, statements of policy and interpretations not published in the Federal Register, and staff manuals and instructions to staff must either be made available for inspection and copying or be promptly published and made available for sale (5 U.S.C. § 552(a)(2)). Agency records of this type created on or after November 1, 1996, must be made “available, including by computer telecommunications or . . . by other electronic means” (§ 552(a)(2)). This latter requirement is just one of many changes made to the FOIA in the Electronic Freedom of Information Act Amendments of 1996 (Pub. L. No. 104-231) (hereafter 1996 FOIA Amendments) to take account of new information technology.

The 1996 FOIA Amendments also require that the public have access to copies of agency records previously processed for disclosure under the FOIA that, “because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records,” as well as a general index of those records (§ 552(a)(2)(D)-(E)). An agency may, with a full written explanation, delete identifying items that would constitute a clear invasion of personal privacy.

Requests for Other Records

All other agency records must promptly be made available upon a request that reasonably describes the records and is made in accordance with published procedures (§ 552(a)(3)). Agencies must honor the requester’s choice of format and make reasonable efforts to produce records in that form if readily reproducible in that form (§ 552(a)(3)(B)). To constitute an “agency record,” a document must be either created or obtained by an agency and under agency control at the time of the request. See DOJ v. Tax Analysts, 492 U.S. 136, 144–45 (1989); see also ACLU v. CIA, 823 F.3d 655, 662 (D.C. Cir. 2016) (“[W]e look to four factors to determine whether an agency has sufficient control over a document to make it an ‘agency record’: [1] the intent of the document’s creator to retain or relinquish control over the records; [2] the ability of the agency to use and dispose of the record as it sees fit; [3] the extent to which agency personnel have read or relied upon the document; and [4] the degree to which the document was integrated into the agency’s record system or files.”) (citations omitted).

A record is “reasonably describe[d]” if the description of the requested agency document is sufficient to enable a professional agency employee familiar with the subject area to locate the record with a reasonable amount of effort. H.R. Rep. No. 876 (1974). Requests must be made in accordance with the agency’s published rules regarding the time, place, filing fees, and required procedures (5 U.S.C. § 552(a)(3)).

The agency must use reasonable efforts to search for the requested records using electronic methods, except in cases where it would significantly interfere with the operation of the agency’s automated information system (5 U.S.C. § 552(a)(3)(C)). “Search” is now defined explicitly to include both manual and electronic methods (§ 552(a)(3)(D)). In litigation, the “burden is on the agency to demonstrate that it made a “good faith effort to conduct a search . . using methods which can be reasonably expected to produce the information requested.” DiBacco v. U.S. Army, 795 F.3d 178, 188 (D.C. Cir. 2015) (citation omitted).

Fees and Fee Waivers

As amended by the FOIA Reform Act of 1986 (Pub. L. No. 99-570), FOIA sets forth three levels of fees that may be assessed for FOIA requests, depending on the category of the requester:

  • An agency may charge a requester for document search time, duplication, and review costs if the request is made for a “commercial use” (§ 552(a)(4)(A)(ii)(I)). A search includes both manual and electronic means (§ 552(a)(3)(D)).
  • An agency may only charge a requester for document duplication (a “reasonable standard charge”) if the request is not for a commercial use and is made by an educational or noncommercial scientific institution whose purpose is scholarly or scientific research, or by a representative of the news media. (§ 552(a)(4)(A)(ii)(II).) The OPEN Government Act of 2007 defined “a representative of the news media” to mean any person who gathers information of potential current interest to a segment of the public, uses editorial skills to turn the raw material into a distinct work, and distributes that work to an audience. The definition makes clear that this covers not only traditional broadcast and print media but also evolving forms of electronic media. It also makes clear that freelance journalists qualify if they can show a “solid basis for expecting publication” by a news entity.
  • An agency may charge requesters not covered by categories (1) and (2) above for the costs of document search and duplication (§ 552(a)(4)(A)(ii)(III)).

These three categories of fees were further modified by several general limitations that were added to FOIA by the 1986 amendments. These limitations are: (1) no fee may be charged if the costs of collecting and processing the fee are likely to equal or exceed the amount of the fee; (2) a noncommercial requester may not be charged for the first two hours of search time or the first 100 pages of document duplication; (3) no agency may require advance payment of fees unless the requester has previously failed to pay a fee in a timely fashion or the agency has determined that the fee will exceed $250; and (4) review costs may not be charged for review related to appeals or the resolution of issues of law or policy raised by the request (§ 552(a)(4)(A)(iv), (v)).

The 1986 amendments also directed the Office of Management and Budget (OMB) to develop guidelines, following notice-and-comment procedures, to provide a “uniform schedule of fees for all agencies,” and each federal agency was directed to promulgate regulations conforming to those guidelines (§ 552(a)(4)(A)(i)). See The Freedom of Information Reform Act of 1986; Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 Fed. Reg. 10,012 (Mar. 27, 1987).

Notwithstanding the fee schedules, FOIA provides for waivers of fees in particular cases. As amended by the FOIA Reform Act in 1986, the fee waiver provision states that “[d]ocuments shall be furnished without any charge or at a [reduced] charge . . . if disclosure of the information is in the public interest because 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” (§ 552(a)(4)(A)(iii)).

The Department of Justice issued a fee waiver policy statement in April 1987 to reflect the change in the waiver provision made by the FOIA Reform Act (Memorandum, Stephen J. Markman, Assistant Attorney General, Office of Legal Policy, to Agency Heads, Apr. 2, 1987). The guidance was intended for use by agencies adopting new fee waiver regulations. The memorandum includes a six-factor test for deciding to grant or deny a request for waiver or reduction of FOIA fees (see discussion in the Justice Department’s Guide to the FOIA, including discussion of court cases applying the factors).

Another change made by the OPEN Government Act in 2007 (Pub. L. No. 110-175) was to prohibit the imposition of fees for searches (or duplication for the media and educational or scientific institutions) if the agency violated the time limits in the FOIA, at least absent unusual or exceptional circumstances (§ 552(a)(4)(A)(viii)). The 2016 amendments extend the search fee prohibition to cases where a time limit has been properly extended and the agency fails to meet the new extended deadline.

Time Limits

An agency must inform a FOIA requester within 20 working days of receiving a request as to the agency’s intent to fulfill or deny the request (§ 552(a)(6)(A)(i)). If the request is not sent to the appropriate component of the agency to answer the request, the agency is allowed an additional 10 days to respond to the request. In addition, the agency may make one request to the requester for information and toll the time period for 20 days while awaiting the requester’s response. If necessary to clarify issues regarding fee assessment, the agency may also toll the time period during the period awaiting the requester’s response.

The requester may appeal a denial to the agency head. The agency head must decide appeals within 20 working days (§ 552(a)(6)(A)(ii)). The time limits for both responding to the request and deciding an appeal may be extended for 10 working days in unusual circumstances upon written notice to the requester (§ 552(a)(6)(B)). Section 552(a)(6)(B) specifies the circumstances permitting the extension of the time limits. If an agency anticipates that the request may take more than the extended time period, it must provide the requester an opportunity to either (i) limit the scope of the request or (ii) arrange with the agency a new or alternative time limit or a modified request (§ 552(a)(6)(B)(ii)).

Agencies may promulgate regulations providing for multitrack processing of requests for records. (§ 552(a)(6)(D)(i).) This allows for processing of requests on a “first-in, first-out” basis within each track, but also permits agencies to bypass agency backlogs by responding to relatively simple requests before requests for complex and/or voluminous records.

Agencies also must provide for expedited processing of requests for records (§ 552(a)(6)(E)). If a FOIA requester can show “compelling need” (defined in § 552(a)(6)(E)(v)), the agency may expedite the request and process it out of sequence. Compelling need is explicitly defined as either an imminent threat to life or public safety or an urgency to inform the public concerning actual or alleged Federal Government activity (§ 552(a)(6)(E)(v)(I), (II)). Within 10 days after an expedited request, the agency must notify the requester if it will expedite the process, and the requester must be given an opportunity to appeal the agency’s determination (§ 552(a)(6)(E)(ii)(I)).

Exemptions

Nine categories of records (or portions of records) are exempt under § 552(b) from mandatory disclosure under FOIA. However, any reasonably segregable, non-exempt portions of requested records must be released to the requester, even if the material falls under one of the nine categories below. The record must also indicate the amount of information deleted and the exemption claimed (unless that indication is itself protected from disclosure by an exemption) and, if technically feasible, this information should be placed in the record where the deletion is made (§ 552(b), concluding paragraphs). While not considered “exempt” records, the 2002 amendments provided that intelligence agencies are not to make any record available to foreign governments (§ 552(a)(3)(E)). In addition, there are a number of other statutes that specifically exclude records described therein from FOIA. For example, the Critical Infrastructure Information Act exempts critical infrastructure information voluntarily submitted to an agency from FOIA. See 6 U.S.C. § 133(a)(1)(A). In addition, in 1984 Congress amended the National Security Act of 1947 to exempt from FOIA’s search and review requirements certain operational files of the Central Intelligence Agency. The CIA Information Act (Pub. L. No. 98-477) did not broaden the CIA’s authority to withhold information, but it relieves the CIA of the administrative burden of searching and reviewing files that almost always are classified or otherwise not releasable under FOIA.

Because FOIA is a disclosure statute only, it does not prohibit agencies from disclosing records merely because they are exempt from mandatory disclosure (although in some cases other statutes may prohibit disclosure). Under President Jimmy Carter, the Justice Department informed heads of agencies that it would not defend an agency in a suit seeking disclosure under FOIA unless the agency found not only that a particular exemption was applicable but also that disclosure would be contrary to the public interest. This memorandum was revoked by the Attorney General appointed by President Ronald Reagan, who informed heads of agencies that the Department would defend any withholding of a record that was subject to a FOIA exemption. This policy was continued by President Bush, but President Clinton’s Attorney General reinstituted the Carter-era policy. President Bush’s Attorney General subsequently rescinded the Clinton-era policy and assured heads of agencies that their withholdings would be defended by the Department unless they lacked a sound basis in the law. President Obama’s Attorney General in turn revoked the Bush policy and returned to the Carter/Clinton policy of defending withholding from disclosure only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.

The following are the nine exemptions provided in the FOIA.

Exemption 1

Records that are specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy, and are in fact properly classified pursuant to such executive order.

The applicable executive order is Executive Order 13,526, Classified National Security Information, which became effective on October 17, 1995, 3 C.F.R. 333 (1996), 60 Fed. Reg. 19,825. See Justice Department’s Guide to the FOIA for discussion of litigation under this exemption, including issues of deference to agency classification, court review, the Executive Order’s provisions, and other issues.

However, disclosure “may be compelled . . . over an otherwise valid exemption claim” when the records have been “officially acknowledged.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). The D.C. Circuit has articulated a three-part test to determine when a record has been “officially acknowledged”: “(1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through an official and documented disclosure.” Mobley v. CIA, 806 F.3d 568 (D.C. Cir 2015), citing Fitzgibbon (internal quotations omitted).

Exemption 2

Records that are related solely to the internal personnel rules and practices of an agency.

The case law on this exemption initially was divided, reflecting the manner in which the House and Senate reports addressed Exemption 2 when the FOIA was enacted. Compare S. Rep. No. 813 (1965) (exemption relates only to internal personnel rules and practices within an agency) with H.R. Rep. No. 1497 (1966) (exemption does not cover all matters of internal management). The Supreme Court, however, in U.S. Department of the Air Force v. Rose, 425 U.S. 352 (1976), accepted the Senate report as authoritative for routine personnel matters.

The exemption, as interpreted by the courts for a number of years, encompassed two distinct categories of information: (i) that related to internal agency matters of a relatively trivial nature, and (ii) that related to more substantial internal agency matters, the disclosure of which would enable persons to circumvent a legal requirement. A request for the former type of information was sometimes referred to as a “low 2” matter, while a request for the latter type of information was referred to as “high 2.” In Milner v. U.S. Dep’t of the Navy, 562 U.S. 562 (2011), however, the Supreme Court overturned this body of law, holding that “Low 2 is all of 2 (and that High 2 is not 2 at all).” Id. at 571. Consequently, this exemption only applies to internal agency matters relating to employment.

Exemption 3

Records specifically exempted from disclosure by statute (other than section 552b of this title), if that statute—(A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.

Exemption 3 is triggered only by federal statutes, and not, for instance, by executive orders or regulations (Washington Post Co. v. HHS, 690 F.2d 252, 273 (D.C. Cir. 1982)) or by rules of the Supreme Court (Founding Church of Scientology v. Bell, 603 F.2d 945, 952 (D.C. Cir. 1979)). In Reporters Committee for Freedom of the Press v. DOJ, 816 F.2d 730, 735 (D.C. Cir. 1987), rev’d on other grounds, 489 U.S. 749 (1989), the Court of Appeals for the D.C. Circuit held that congressional intent to exempt matters from disclosure must be found “in the actual words of the statute . . . or at least in the legislative history of FOIA” and not in the legislative history of a claimed withholding statute. The Privacy Act does not qualify as an Exemption 3 statute (5 U.S.C. § 552a(t)(2), as added by Pub. L. No. 98-477, § 2(c)). The Trade Secrets Act, 18 U.S.C. § 1905, also does not qualify as an Exemption 3 statute, see CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1137–43 (D.C. Cir. 1987), cert. denied, 485 U.S. 977 (1988), but information covered by the Trade Secrets Act is protected from disclosure under Exemption 4, see id.

Exemption 3 statutes enacted while a FOIA request is pending or being litigated may apply retroactively to exempt the requested records from disclosure. See City of Chicago v. U.S. Dep’t of Treasury, BATF, 423 F.3d 777 (7th Cir. 2005); Project on Nuclear Arms Control v. U.S. Dep’t of Commerce, 317 F.3d 275 (D.C. Cir. 2003); Southwest Center for Biological Diversity v. USDA, 314 F.3d 1060 (9th Cir. 2002).

The OPEN FOIA Act of 2009 (Pub. L. No. 111-83) added subparagraph (B), further restricting the scope of Exemption 3 by providing that, in addition to the requirements under subparagraph (A), in order for any future statute to preclude disclosure under this exemption, it would have to cite specifically to this exemption.

Exemption 4

Trade secrets and commercial or financial information obtained from a person and privileged or confidential.

This category relates only to records that have been supplied to the government by a “person” (i.e., someone other than the government itself).

“Trade secrets” has been defined narrowly by the D.C. Circuit instead of applying the broad common-law meaning, see Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983). “Trade secrets” are limited to information regarding the “productive process itself.” Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 244 F.3d 144, 150–51 (D.C. Cir. 2001). However, if information relates to business or trade, most courts have little difficulty in finding it “commercial or financial.” Most litigation of Exemption 4 issues has turned on the meaning of “confidential.”

The D.C. Circuit, in Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc), established two standards for determining confidentiality. If the information is “required” by the government, and if disclosure is likely to either (i) impair the government’s ability to obtain information in the future or (ii) cause substantial harm to the competitive position of the submitter of the information, then the information is confidential. Nat’l Parks and Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). However, if a person “voluntarily” submits the information to the government, then that information is categorically protected, provided that it is not customarily released by the submitter to the public. Critical Mass, 975 F.2d at 879. See Center for Auto Safety, 244 F.3d at 149, for an extensive analysis of Critical Mass. Critical Mass has not been recognized in most other circuits. See San Juan Citizens All. v. U.S. Dep’t of the Interior, 70 F. Supp. 3d 1214 (D. Colo. 2014). Some courts have held that harm to governmental programs unrelated to the government’s ability to obtain information might be grounds for protecting such information. See, e.g., 9 to 5 Organization for Women Office Workers v. Bd. of Governors of the Fed. Reserve Sys., 721 F.2d 1, 10 (1st Cir. 1983). For a discussion of these tests, the distinction between “required” and “voluntary,” and what constitutes “customarily,” see the Justice Department’s FOIA Guide.

The Trade Secrets Act, 18 U.S.C. § 1905, imposes criminal penalties on agency employees who wrongfully disclose trade secrets. In Chrysler Corp. v. Brown, 441 U.S. 281, 319, n.49 (1979), the Supreme Court held that Exemption 4 and the Trade Secrets Act are essentially congruent, limiting an agency’s ability to make a discretionary release of material exempt under Exemption 4, because to do so in violation of the Trade Secrets Act would constitute an action inconsistent with law. See also CNA Financial Corp. v. Donovan, 830 F.2d 1132, 144–52 (D.C. Cir. 1987), cert. denied, 485 U.S. 978 (1988).

A “reverse FOIA” case is one in which the submitter of information seeks to enjoin the agency from releasing that information in response to a third party’s FOIA request. In Chrysler Corp. v. Brown, above, the Supreme Court held that submitters could not sue under the FOIA or the Trade Secrets Act, but only under the Administrative Procedure Act (5 U.S.C. § 701, et seq.), claiming illegal agency action. A leading case on the scope of review in reverse FOIA cases is NOW, Washington, D.C. Chapter v. Soc. Sec. Admin., 736 F.2d 727, 745–47 (D.C. Cir. 1984). In 1987, the President issued an executive order that requires agencies to establish and follow procedures with respect to requests for records potentially subject to this exemption. Executive Order 12,600, Predisclosure Notification Procedures for Confidential Commercial Information, 52 Fed. Reg. 23,781 (June 23, 1987).

Exemption 5

Inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested.

Exemption 5 applies to documents normally privileged in the civil discovery context and is not limited to those privileges mentioned in the legislative history. United States v. Weber Aircraft Co., 465 U.S. 792, 800 (1984); see also FTC v. Grolier Inc., 462 U.S. 19, 26 (1983); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987); but see Burka v. HHS, 87 F.3d 508, 517 (D.C. Cir. 1996) (before certain material may be found privileged, the agency must show that it is protected in discovery for reasons similar to those used in FOIA context). The most frequently invoked privileges under Exemption 5 are the deliberative process privilege (executive privilege), the attorney work-product privilege, and the attorney-client privilege. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Initially, however, the record must be “interagency or intraagency memorandums or letters.” This language has been construed to extend the exemption to recommendations and advice made by a number of persons outside agencies, such as members of Congress and agency consultants. See U.S. Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001). It does not extend to outside consultants who have a direct interest in the matter that is adverse to others. Id. For a discussion of the cases, see the Justice Department’s FOIA Guide.

Exemption 6

Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

In 1982, the Supreme Court defined “similar files” broadly, holding that any information that “applies to a particular individual” may qualify for consideration under Exemption 6. U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 599–603 (1982). The exemption may only be invoked to protect individuals; neither corporations nor associations possess protectable “personal privacy” interests. See, e.g., Sims v. CIA, 642 F.2d 562, 572 n.47 (D.C. Cir. 1980); Nat’l Parks and Conservation Ass’n v. Kleppe, 547 F.2d 673, 685, n.44 (D.C. Cir. 1976). “The government bears the burden of showing that a substantial invasion of privacy will occur if the documents are released.” Prison Legal News v. Samuels, 787 F.3d 1142, 1147(D.C. Cir. 2015).

In deciding to grant or deny a request for information under Exemption 6, the decision maker must balance the severity of the threat to an individual’s privacy interest by disclosure against the public interest, if any, in disclosure. U.S. Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976). The FOIA’s words “clearly unwarranted,” modifying the phrase “invasion of personal privacy,” tilts the balance in favor of disclosure. Id. at 378 n.16. However, where no public interest in disclosure exists, the information should be protected. Nat’l Ass’n of Retired Federal Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989). The Supreme Court’s decision in DOJ v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), enunciates principles that guide privacy/public interest balancing under both Exemptions 6 and 7(C). In National Archives and Records Administration v. Favish, 541 U.S. 157 (2004), the Court held that the privacy interests protected by this exemption include the privacy interests of surviving family members in information concerning a decedent. For a discussion of the cases and the balancing test, see the Justice Department’s FOIA Guide. For a Supreme Court decision on the effect of redaction on release of files containing personal information about individuals, see U.S. Dep’t of State v. Ray, 502 U.S. 164 (1991).

Exemption 7

Records or information compiled for law enforcement purposes, but only to the extent that the production of such records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and in the case of a record or information compiled by a criminal law enforcement authority in the course of criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose investigative techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.

When the FOIA was amended in 1974, Exemption 7 was narrowed to allow withholding of investigatory records compiled for law enforcement purposes, but only to the extent that disclosure of the records would cause one of six enumerated harms. Government agencies subsequently complained that the 1974 language provided inadequate protection for confidential sources, ongoing investigations, and law enforcement manuals and other materials. The FOIA Reform Act of 1986 (Pub. L. No. 99-570) amended the exemption again to significantly broaden the protection given to law enforcement records.

The FOIA Reform Act removed the requirement that records or information be “investigatory” in character. Thus, the protections listed in Exemption 7’s six subparts now apply to all records or information compiled for law enforcement purposes regardless of the format in which it is maintained. In Milner v. U.S. Dep’t of the Navy, 562 U.S. 562, 582 (2011), Justice Alito authored a concurrence explaining that “law enforcement purposes” “reasonably encompasses information used to fulfill official security and crime prevention duties.” Thus, “proactive steps designed to prevent criminal activity and to maintain security” would qualify as law enforcement activity. This theory has been used to exempt plans and information formerly withheld under the now defunct “high 2” theory of Exemption 2. See, e.g., Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary and Water Comm’n, U.S.-Mex., 740 F.3d 195 (D.C. Cir. 2014).

The FOIA Reform Act also substituted “could reasonably be expected to” for “would” as the standard for the risk of harm with respect to subparagraphs (A) interference with enforcement proceedings, (C) unwarranted invasion of personal privacy, (D) disclosure of the identity of a confidential source, and (F) endangering the life or physical safety of any individual. This change eases a federal law enforcement agency’s burden in invoking the exemption. DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 n.9 (1989). The FOIA Reform Act also provided that the term “confidential source” includes state, local, and foreign agencies and private institutions. The Supreme Court in FCC v. AT&T, Inc., 562 U.S. 397 (2011) established that corporations do not have any “personal privacy” that would be protected by the exemption for records whose release could reasonably be expected to constitute an unwarranted invasion of privacy. For a further discussion of this exemption, see the Justice Department’s FOIA Guide.

Exemption 8

Records that are contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.

Although the legislative history of this broad exemption is not extensive, it was included to (i) protect the security of financial institutions by withholding reports from the public that contain frank evaluation of an institution’s stability and (ii) promote cooperation and communication between financial institution employees and regulatory institution examiners. Consumers Union of the U.S. v. Heimann, 589 F.2d 531 (D.C. Cir. 1978).

Exemption 9

Geological or geophysical information and data, including maps, concerning wells.

Exemption 9 is infrequently invoked. According to the House Report on the 1966 Act, the provision was added after witnesses contended that disclosure of seismic reports and other exploratory findings of oil companies would give speculators an unfair advantage over the companies that had invested heavily in exploration. H.R. Rep. No. 1497 (1966).

Judicial Review

A requester may bring suit in district court to compel the production of records wrongfully withheld by an agency (§ 552(a)(4)(B)– (G)). In addition, an agency’s failure to comply with the time limits for either the initial request or the administrative appeal may be treated as a constructive exhaustion of administrative remedies, and a requester may immediately seek judicial review (§ 552(a)(6)(C)(i)). A court, however, may withhold action if exceptional circumstances exist (defined in § 552(a)(6)(C)(ii) and (iii)).

The 1996 FOIA Amendments have substantially limited when agencies may claim exceptional circumstances in responding to the backlog of FOIA requests. Instead of “due diligence,” the FOIA now states that agencies must demonstrate “reasonable progress” in reducing its backlog of pending requests before this delay may qualify as an exceptional circumstance (§ 552(a)(6)(C)(ii)).

This effect may be moderated by § 552(a)(6)(C)(iii), which states that a requester’s refusal to modify a request (under § 552(a)(6)(B)(ii)) may be considered in determining whether exceptional circumstances exist.

A reviewing court will decide the case de novo and can examine agency records as necessary. The defending agency bears the burden of sustaining its action of withholding records. The agency may be required to prepare a Vaughn index (from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974)), an itemized index that correlates each withheld document (or portion) with a specific FOIA exemption and the relevant part of the agency’s nondisclosure justification.

A plaintiff who has “substantially prevailed” may recover attorney fees from the government (§ 552(a)(4)(E)). The plaintiff must show that prosecution of the suit was reasonably necessary to obtain the information and that a causal connection exists between the suit and the agency’s production of the documents (see, e.g., Weisberg v. DOJ, 745 F.2d 1476 (D.C. Cir. 1984); Vt. Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir. 1976)). To overcome the effect of the Supreme Court’s decision in Buckhannon Board. and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), which precluded awarding attorney fees to prevailing parties where the plaintiff’s success did not result from a court decision, the OPEN Government Act of 2007 specified that a plaintiff should be deemed to have substantially prevailed if it obtained relief either from a court decision or a voluntary or unilateral change in agency position. A fee award is discretionary with the court and is based on four criteria: (1) the public benefit derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) whether the government’s withholding had a reasonable basis in law. Fenster v. Brown, 617 F.2d 740, 742 (D.C. Cir. 1979).

Whenever the court (i) orders production of records improperly withheld, (ii) awards attorney fees and litigation costs against the government, and (iii) issues specific “written findings” of suspected arbitrary or capricious conduct, the U.S. Office of Special Counsel must initiate a proceeding to determine whether disciplinary action is warranted. The Special Counsel reports its recommendations and findings to the agency involved, and that agency is directed to take the corrective action recommended (§ 552(a)(4)(F)(i)). Annual reports of such actions are required (§ 552(a)(4)(F)(iii)).

Reports

Agencies have extensive reporting obligations under FOIA, including an annual report to Congress containing summaries, details, and raw data of matters related to FOIA (§ 552(e)(1)) as well as quarterly reports and an annual Chief FOIA Officer Report, which are required by OIP.

The attorney general must submit an annual report on judicial activity related to FOIA (§ 552(e)(6)).

Oversight and Monitoring

The OPEN Government Act of 2007 created a new agency, the Office of Government Information Services (OGIS) within the National Archives and Records Administration (NARA). Its function is to review the various agencies’ policies, procedures, and compliance regarding FOIA and to recommend policy changes to the President and Congress. In addition, that office is to offer mediation between requesters and agencies and may issue advisory opinions if mediation is not successful. FOIA also requires the Government Accountability Office (GAO) to conduct audits of agencies’ implementation of FOIA. In addition, it required agencies to designate a senior official at each agency to be the Chief FOIA Officer responsible for monitoring the agency’s implementation of FOIA.

Legislative History

Federal laws bearing on public access to government information date to 1789 (see 1 Stat. 28, 49, 65, 68 (1789)). Under the Housekeeping Statute (5 U.S.C. § 301), agency heads have long had the authority to control the dissemination of information from the files of their departments. Section 3 of the Administrative Procedure Act of 1946 (the “public disclosure” section, 5 U.S.C. § 1002 (1964 ed.)) provided that the public could obtain agency information if (1) the matter was of official public record, (2) no other statute barred release of the information, (3) persons seeking access followed published agency rules, (4) persons seeking access could show a “proper” and “direct” concern, and (5) the agency did not otherwise find good cause to deem the information confidential.

FOIA evolved after a decade of debate among agency officials, legislators, and public interest group representatives (most notably, members of the press). FOIA, which was shaped largely by the efforts of Representative John Moss, revised the public disclosure section of the Administrative Procedure Act (APA), which had come to be looked upon as falling far short of its disclosure goals. See S. Rep. No. 813 (1965).

FOIA was enacted in 1966 as new section 552 of title 5, U.S. Code (Pub. L. No. 89-554). It provided access to “any person” without requiring a showing of need, ensured the right to go to court to enforce its provisions, and left the agencies no discretion to sidestep its mandatory disclosure requirements. Despite these changes to the APA, FOIA contained, in the views of many, both procedural and substantive weaknesses. Courts responded to some of the FOIA’s weaknesses by fashioning procedural aids or interpretations, such as the requirement for an agency to provide a detailed index of withheld documents (established in Vaughn v. Rosen, above) and the requirement that agencies release segregable, nonexempt portions of a partially exempt record (established in EPA v. Mink, 410 U.S. 73 (1973)).

Representative Carlos Moorhead’s House hearings in 1972–73, see, e.g., H.R. Rep. No. 1419 (1972), identified four problems with the 1966 Act:

  1. Agency refusal to supply information by use of an exemption in the FOIA was commonplace;
  2. Long delays in responding to requests often made the information useless once provided;
  3. Delaying tactics during litigation unreasonably extended both the time and the costs to the requester; and
  4. Lack of technical compliance with the requirements of the FOIA, as interpreted by the agency, often led to a refusal to supply requested information.

FOIA was substantially amended in 1974 to address these problems and also in reaction to the abuses of the Watergate era. The 1974 amendments (Pub. L. No. 93-502) substantially narrowed the scope of FOIA’s law enforcement and national security exemptions, and broadened the procedural provisions relating to fees, time limits, segregability, and in camera inspection of withheld information by the courts. In 1976 Congress, by means of a rider to the Government in the Sunshine Act (Pub. L. No. 94-409), again limited the agencies’ ability to withhold information, this time by narrowing Exemption 3 relating to the incorporation of the nondisclosure provisions of other statutes.

In 1984, Congress eliminated the requirement that FOIA proceedings have precedence over all cases on federal court dockets (Pub. L. No. 98-620). In 1984 Congress also passed the CIA Information Act (Pub. L. No. 98-477), which amended the National Security Act of 1947 to exempt certain operational files of the Central Intelligence Agency (CIA) from FOIA’s search and review requirements. The CIA Information Act was intended to relieve the CIA of the administrative burden of searching and reviewing files that are almost always classified or otherwise not releasable under FOIA. See H.R. Rep. No. 726, pt. 1 (1984).

In 1986, Congress included FOIA amendments in the Anti-Drug Abuse Act of 1986 (Pub. L. No. 99-570). The FOIA amendments are in subtitle N, Freedom of Information Reform Act of 1986. These amendments broadened Exemption 7’s applicability to records compiled for law enforcement purposes, established new FOIA fee standards, and required each agency to adopt a schedule of fees that conforms to guidelines promulgated by the Director of OMB.

In 1996, Congress passed the Electronic Freedom of Information Act Amendments (Pub. L. No. 104-231). These amendments were the fruit of several years’ consideration on how to apply FOIA to electronic records. The legislation required that certain types of agency records be accessible and maintained via electronic formats. It also included several procedural requirements that sought to address agency backlog of FOIA requests and provided for the expedited processing of FOIA requests in certain situations.

In 2002, Congress included a FOIA amendment in the Intelligence Authorization Act (Pub. L. No. 107-306). This amendment precludes intelligence agencies from disclosing any records to foreign governments or their representatives.

In 2007, Congress enacted the Openness Promotes Effectiveness in our National Government Act of 2007, or the OPEN Government Act of 2007 (Pub. L. 110-175, which extensively amended FOIA. It made important changes to

  • the fee provisions, especially concerning requests from news media and in situations where the agency misses applicable deadlines;
  • the attorney-fee provisions;
  • the disciplinary proceedings by the Office of Special Counsel;
  • the 20-day time limit for processing and tracking requests; and
  • the annual agency reports to the Attorney General.

It extended coverage to records “maintained for an agency by an entity under Government contract, for the purposes of records management.” It established OGIS within NARA to review agency FOIA policies and procedures and compliance with FOIA, to recommend policy changes to Congress and the President to improve the administration of FOIA, and to offer mediation services to resolve disputes between requestors and agencies as a “non-exclusive alternative to litigation.”

In 2009, Congress included the OPEN FOIA Act of 2009 in the Department of Homeland Security Appropriations Act, 2010 (Pub. L. No. 111-83). This legislation amended exemption (b)(3) to further restrict what qualifies as a record exempted from disclosure by statute.

In 2016, Congress enacted the FOIA Improvement Act of 2016 (Public L. No. 114-185), which makes a number of significant changes to improve transparency and facilitate more efficient functioning of the FOIA system. For example, it codifies the “Rule of 3” by requiring agencies to make a record available for public inspection in an electronic format (i.e., on the Internet) if it has been requested three or more times. It requires OMB to create a single website from which persons may make a FOIA request to any agency, although agencies may retain their own websites for requests. The deliberative process exemption ((b)(5)) is restricted to records created within 25 years of the request. It codifies the Department of Justice’s foreseeable harm requirement by allowing withholding “only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” It creates various incentives for agencies to meet deadlines, such as forbidding the imposition of a fee for searching (or for copying for those who are exempt from search fees) if the agency exceeds the extended time for unusual circumstances. It increases the reporting requirements of agencies to the Attorney General and Director of OGIS, of the Attorney General to Congress, and of the Director of OGIS to Congress. It increases the duties of the Chief FOIA Officer in each agency and creates a Chief FOIA Officers Council which is directed to develop initiatives to increase transparency and compliance with the FOIA, to make recommendations for increased efficiencies, and to share best practices. It requires agencies to review their FOIA regulations and issue new regulations that implement aspects of FOIA and establishment of an online FOIA request portal that allows the public to submit requests to any agency from a single website.

Source Note

The Office of Information Policy in the Justice Department has a website that has links to various FOIA resources. Among these is the Department’s Guide to the FOIA, which contains a detailed discussion of FOIA’s exemptions and procedural requirements and is updated on a rolling basis. The Office’s website includes summaries of recent FOIA court decisions. Decisions between 2009 and 2012 can be found in the Office’s archives. A redline version of the FOIA, showing the changes made by the amendment, is also available.

OGIS created by the OPEN Government Act of 2007 has a website that contains extensive information about the cases it has handled in mediation, as well as other FOIA information.

The House Committee on Oversight and Government Reform periodically issues A Citizen’s Guide on Using the Freedom of Information and Privacy Act of 1974 to Request Government Records (2012).

Bibliography

Legislative History and Congressional Documents

Executive Orders and White House Documents

Department of Justice Documents

ACUS Recommendations

Other Sources

  • Access Reports, a biweekly newsletter published by Access Reports, Inc., Lynchburg, Va.
  • Litigation under the Federal Open Government Laws: 2010 (Elec. Privacy Info. Ctr., 2010).
  • James R. O’Reilly, Federal Information Disclosure 2014-1 ed. (Thomson Reuters 2014).

Books and Articles

Statutory Provisions

Freedom of Information Act

Title 5 U.S. Code

§ 552. Public information; agency rules, opinions, orders, records, and proceedings

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