Understanding FOIA Exemptions is Key to a Healthy FOIA Program
February 21, 2023 / #Unstuck Government, #FOIA
FOIA Exemptions 101
Some people think agencies over-apply exemptions to the Freedom of Information Act (FOIA), while others think they aren’t applied enough. What we know is that the individuals in the FOIA offices and our FOIA User Community work hard every day to accurately apply the law so that citizens can have a better understanding of what their government is doing.
If you work in a FOIA office, you know that, by default, the goal of the U.S. government is to provide open information and access. However, there are times when that isn’t possible under the law because of exemptions, and understanding FOIA exemptions is critical to running a healthy FOIA program.
What are the 9 FOIA Exemptions?
In total, there are 9 FOIA exemption categories. According to the U.S. Department of Justice, the 9 FOIA exemptions are:
Exemption 1: Information that is classified to protect national security.
Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
Exemption 3: Information that is prohibited from disclosure by another federal law.
Exemption 4: Trade secrets or commercial or financial information that is confidential or privileged.
Exemption 5: Privileged communications within or between agencies, including those protected by the:
- Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested)
- Attorney-Work Product Privilege
- Attorney-Client Privilege
Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.
Exemption 7: Information compiled for law enforcement purposes that:
- Could reasonably be expected to interfere with enforcement proceedings
- Would deprive a person of a right to a fair trial or an impartial adjudication
- Could reasonably be expected to constitute an unwarranted invasion of personal privacy
- Could reasonably be expected to disclose the identity of a confidential source
- Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law
- Could reasonably be expected to endanger the life or physical safety of any individual
Exemption 8: Information that concerns the supervision of financial institutions.
Exemption 9: Geological information on wells.
How often are FOIA exemptions used?
The 9 FOIA exemptions all make an impact. According to a 2019 General Accounting Office (GAO) report, Update on Federal Agencies’ Use of Exemption Statutes, out of 878,000 FOIA requests in 2019, about 40 percent were at least partially denied, while just under 4 percent – or about 34,000 – were fully denied.
What is FOIA W 3? What is the most complicated FOIA Exemption?
Arguably, FOIA’s Exemption 3, or (b)(3) exemptions, can be the most difficult to apply correctly. It gets complicated, quickly. In 2019, 72,000 FOIA requests claimed Exemption 3, citing a total of 256 statutes. That is 256 different reasons Exemption 3 applied.
The exemption applies when another statute specifically exempts it. As GAO Director of Strategic Issues, Michelle Sager, explains in an interview on Federal News Network with Tom Temlin, “there are nine reasons [why records responsive to a FOIA request may be deleted] . . . one of those reasons is very specific . . . That’s the focus of this particular report.” Therefore, if a requester asks for information that is protected by federal law, the processing agency can deny the request so long as the law or statute leaves “no discretion on the issue,” establishes “criteria for withholding,” or refers to “types of matters to be withheld.” Additionally, to qualify as a new Exemption 3 statute enacted after 2009, its language must expressly refer to Exemption 3.
Among the statutes that necessitated withholding under Exemption 3, statute 8 U.S.C § 1202(f), “related to withholding records pertaining to the issuance or refusal of visas to enter the United States,” was most often referenced. This was followed by a statute related to tax return information, 26 U.S.C. § 6103. According to Sager, other statutes related to air transportation security, national security, and international affairs were among those most referenced for the use of Exemption 3. Most Exemption 3 statutes are utilized by just one or a few agencies.
But while Exemption 3 provides the most common basis for denying requests in full, all nine FOIA exemptions can come into play when redacting and withholding information in a document. The report found that overall, Exemption 3 accounted for just 7.4 percent of the total exemptions referenced in processed FOIA requests. Of the 970,000 uses of FOIA exemptions, various subparts of FOIA Exemption 7, or the prohibition of disclosure of records “compiled for law enforcement purposes,” accounted for more than half.
Why is understanding FOIA exemptions important?
Widespread knowledge of FOIA exemptions and how they work is not just useful for FOIA officers, but also for public requesters. Understanding why a request was fully or partially denied can help requesters determine their next course of action, whether it is to seek further information not protected by an exemption, abandon the FOIA request, or appeal the denial. With a greater public understanding of exemptions, the benefit for agencies is a reduction in unnecessary FOIA appeals.
When processing FOIA requests, a more detailed knowledge of the exemptions is useful, especially in cases when the application of an exemption is open to interpretation and must be decided by the court. While increasingly rare, questions can still arise for officers processing FOIA requests on whether to apply exemptions.
How can you ensure a healthy FOIA program?
At OPEXUS, we are driven by the principle that good enough for government isn’t good enough. As a FOIA official, we know you are driven to make government as open as possible and to follow the law. We partner to help U.S. government agencies understand FOIA exemptions, when best to apply them, and manage the entire FOIA process.
Our software, FOIAXpress, transforms open records compliance and reporting into an efficient, cradle-to-grave electronic process. But we are a full partner, not just a software company – we offer training on FOIA law at the request of our customers, and we provide expert staff to help you make decisions regarding FOIA exemptions.
Our partnership with you lets you spend less time on administrative tasks and significantly reduces the time and money it takes to fulfill requests. That leads to a more open government – one that is better than good enough.