Freedom of Information Act Exemption Overview UNCLASSIFIEDINFORMATION

FOIA Exemptions  The FOIA is found in Title 5 United States Code Section 552 (5 U.S.C. § 552)  There are 9 FOIA exemptions  This briefing will cover Exemptions 1, 2, 3, 4, 5, 6, and 7 Exemption 1: 5 U.S.C. § 552(b)(1)  Applies to information which is currently and properly classified in the interest of national defense or foreign policy, as specifically authorized under the criteria established by Executive Order and implemented by regulation (such as DoD R).

Exemption 1  Executive Order 12958, as amended  May classify after receipt of FOIA request- -§ 1.7(c) (procedures to follow)  Compilation/Mosaic approach  Properly marked documents  Glomar response

Exemption 1  New additions to classification categories: “Transnational Terrorism”--§ 1.4(e) & (g); “Transnational Terrorism”--§ 1.4(e) & (g); “Infrastructures” --§ 1.4(g); “Infrastructures” --§ 1.4(g); “Weapons of Mass Destruction”--§ 1.4(h) “Weapons of Mass Destruction”--§ 1.4(h) Presumption for classification of “Foreign Government Information”--§ 1.1( c)

Freedom of Information Act  5 U.S.C. § 552(b)(2): Protects records that are “related solely to the internal personnel rules and practices of an agency.” Two parts: Two parts: High: 1. operating rules; guidelines; manuals for investigators, auditors or examinersHigh: 1. operating rules; guidelines; manuals for investigators, auditors or examiners 2. examination questions and answers used for training, employment or promotion 2. examination questions and answers used for training, employment or promotion 3. computer software, if disclosure would allow circumvention and meets agency record test 3. computer software, if disclosure would allow circumvention and meets agency record test

Exemption 2 Predominantly internal Predominantly internal Release would cause agency harm (Homeland security information) Release would cause agency harm (Homeland security information) Public interest in disclosure is irrelevant Public interest in disclosure is irrelevant Courts willing to go further to protect law enforcement material/information Courts willing to go further to protect law enforcement material/information

Exemption 2 Low 2: Covers trivial information of no public interest Predominantly internal Predominantly internal No genuine public interest No genuine public interest Does information “shed significant light” on personnel rules and practices (routine matters/performance stds vs. public interest/honor code proceedings)? Does information “shed significant light” on personnel rules and practices (routine matters/performance stds vs. public interest/honor code proceedings)?

FOIA Exemptions  Exemption 2 (cont’d) Low: trivial information parking facility rules; lunch hour rules; sick leave policy; mail routing stamps; initials Low: trivial information parking facility rules; lunch hour rules; sick leave policy; mail routing stamps; initials Awards, travel expenses, file numbers, data processing notations (Senate intent) Awards, travel expenses, file numbers, data processing notations (Senate intent)

(b)(2) High  Vulnerability studies Schreibman v. U.S. Department of Commerce Schreibman v. U.S. Department of Commerce  Examples: Pentagon AC Ducts Pentagon AC Ducts Lock mechanism manuals Lock mechanism manuals

Exemption 2  FOIA disclosure should not “benefit those attempting to violate the law and avoid detection.”  Must make determination of reasonably expected harm  Used with Exemption (b)(7)(E) to protect law enforcement techniques and manuals  Remember that information must be internal to be protected under Exemption 2

EXEMPTION 3  Exemption 3 incorporates other federal nondisclosure statutes into the FOIA  See WORD document listing (b)(3) exemptions

EXEMPTION 4  Exemption 4 protects trade secrets and commercial or financial information that is privileged or confidential  FOIA Process must comply with EO 12600, requiring “submitters notice”, i.e., review of contract by its submitter, for information that would infringe on a commercial advantage of proprietary information  Action office with the contract requests contractor review with 1-month suspense  Can protect the Government’s proprietary interest  Bottom line: the Contractor makes the call

Exemption 5  5 U.S.C. § 552(b)(5): Protects “inter- agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” What does “inter- or intra-agency memorandum or letter” mean? What does “inter- or intra-agency memorandum or letter” mean?

Exemption 5 Exemption 5 threshold issues: Exemption 5 threshold issues: Inter-agency (between) or intra-agency (within):Inter-agency (between) or intra-agency (within): Klamath Water Users case (Functional test) Klamath Water Users case (Functional test) Memorandum or lettersMemorandum or letters Covers anything in your file Covers anything in your file “Not available by law” refers to iformation normally privileged in civil discovery“Not available by law” refers to iformation normally privileged in civil discovery

Exemption 5  Three main privileges: Deliberative Process Privilege Deliberative Process Privilege Attorney Work Product Privilege Attorney Work Product Privilege Attorney Client Privilege Attorney Client Privilege Deliberative Process Privilege Deliberative Process Privilege Designed to facilitate agencies’ decision making processDesigned to facilitate agencies’ decision making process

Deliberative Process Privilege  Three rationales: 1. Protect candor of the decision makers 2. Protect against premature disclosure of proposed policies 3. Prevent confusion of the public

Deliberative Process Privilege How to determine if a document is deliberative:  Look at who has decision-making authority (chain of command)  Look at direction document flows along decision- making chain (employee to supervisor)  Is substance of document analysis, evaluations, advice, recommendations?  Cannot protect the facts—must segregate facts from deliberative material

Deliberative Process Privilege  Two parts to this privilege: 1. The information must be predecisional: 1. The information must be predecisional: “Antecedent to the adoption of an agency policy”“Antecedent to the adoption of an agency policy” Not final agency decisions or statements of agency policyNot final agency decisions or statements of agency policy Not post-decisional statements that explain decisionsNot post-decisional statements that explain decisions Predecisional documents can lose their protection as suchPredecisional documents can lose their protection as such

Deliberative Process Privilege 2. The information must be deliberative: 2. The information must be deliberative: Analysis, evaluations, comments, advice, recommendationsAnalysis, evaluations, comments, advice, recommendations Drafts:Drafts: If a document is a draft, you can protect it all including the facts, even if the draft is identical to the final version. Stamping a document a “Draft” will not on its own provide protection from disclosure

Attorney Work Product Privilege  Protects adversarial trial process by insulating attorney’s preparation from scrutiny  Protects documents prepared by an attorney or at his or her direction in reasonable anticipation of litigation—can be used to cover work done by law enforcement agents/investigators

Attorney Client Privilege  Protects confidential communications between an attorney and client regarding a legal matter for which client seeks professional advice.  Protects facts divulged by client to attorney AND opinions given by attorney based on those facts  Confidential communications within the government

Exemptions 6 & 7(C)  The Personal Privacy Exemptions: Exemption (b)(6) permits the government to withhold all information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” Exemption (b)(6) permits the government to withhold all information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” Non-law enforcement personal privacy exemption Non-law enforcement personal privacy exemption

Personal Privacy Exemptions  Exemption (b)(7)(C) permits the government to withhold information compiled for law enforcement purposes the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”  Both Exemption 6 and 7( C) require a balancing of the privacy interest with any public interest in disclosure

Personal Privacy Exemptions  4-Step Analysis: 1. Which exemption applies? 1. Which exemption applies? 2. Is there an identifiable privacy interest? 2. Is there an identifiable privacy interest? 3. Is there a legitimate public interest? 3. Is there a legitimate public interest? 4. Balance the two interests 4. Balance the two interests

Personal Privacy Exemptions  Examples of Privacy Interests: Age; marital status; home address; medical conditions; performance appraisals; criminal convictions; information about unsuccessful job applicants; information that, although perhaps once public, has become “practically obscure.” Age; marital status; home address; medical conditions; performance appraisals; criminal convictions; information about unsuccessful job applicants; information that, although perhaps once public, has become “practically obscure.” “Practically obscure”—rap sheets “Practically obscure”—rap sheets

Personal Privacy Exemptions Examples where there is no Privacy Interest:  Deceased individuals generally have no privacy interests; however, courts do recognize “survivor privacy interests”  Corporations  Federal employees, except for some federal agencies (DoD names policy)  Identities of FOIA requesters

Personal Privacy Exemptions  Public Interest under the FOIA That which sheds light on the operations and activities of the federal government — Reporters Committee case. That which sheds light on the operations and activities of the federal government — Reporters Committee case. Focus on agency’s conduct, not personal conduct of individualsFocus on agency’s conduct, not personal conduct of individuals Information about private citizens will rarely show the operations and activities of the government.Information about private citizens will rarely show the operations and activities of the government. Duty to segregate non-exempt informationDuty to segregate non-exempt information

Exemption 7 Protects information compiled for law enforcement purposes, including criminal, civil, administrative and regulatory proceedings; 6 Subparts allow for the withholding of information compiled for law enforcement purposes on the basis of the potential harm resulting from release

Exemption 7 Subparts  (A) could interfere with pending or prospective enforcement proceeding;  (B) would deprive an individual of the right to a fair trial;  (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy;

Exemption 7 Subparts  (D) could reasonably be expected to disclose identity of confidential source... or information provided by source;  (E) would reveal techniques or procedures for law enforcement investigations or guidelines if could risk circumvention;  (F) could reasonably be expected to endanger life or physical safety of individual