Freedom of Information Act (FOIA) - Exemptions
All agency records must be made available to the public under the Freedom of Information Act (FOIA), except for records that are:
- Properly classified as secret in the interest of national defense or foreign policy.
- Related solely to internal personnel rules and practices.
- Specifically exempted by other statutes.
- Concerning trade secrets and commercial or financial information obtained from a person that is privileged or confidential.
- Privileged interagency or intra-agency memoranda or letters, except under certain circumstances.
- Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
- Investigatory records compiled for law enforcement purposes.
- Contained in or related to certain examination, operating, or condition reports concerning financial institutions.
- Geological and geophysical information and data, including maps, concerning wells.
The three statutory exclusions:
- Protects against the disclosure of a pending criminal law enforcement investigation where there is reason to believe that the target is unaware of the investigation and disclosure of its existence could reasonably be expected to interfere with law enforcement proceedings.
- Protects against disclosure of unacknowledged, confidential informants (applies only to records maintained by criminal law enforcement agencies).
- Protects against disclosure of foreign intelligence or counterintelligence, or international terrorism records, when the existence of those records are classified (applies only to the FBI).
To use the statutory exclusions, an agency must:
- Consult with the DOJ's Office of Information Policy prior to using an exclusion to ensure that the exclusion is warranted and that exclusion is consistently applied;
- Publicly report each year, as part of their Chief FOIA Officer Report, on the number of times, if any, that an exclusion was used;
- Include on their FOIA websites a brief description of the three exclusions; and
- For those agencies that could possibly invoke an exclusion, include individual notification about the existence of exclusions in their response letters.
These exclusions are limited to criminal law enforcement records or certain national security-related records maintained by the FBI, all agency components that maintain these records should include the following notification language in responses to all their requests:
"For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c) (2006 & Supp. IV 2010). This response is limited to those records that are subject to the requirements of the FOIA. This a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exists."
The "Justice Department Guide to the Freedom of Information Act" provides more detail on these exemptions as well as FOIA law enforcement record exclusions and certain procedures.