Freedom of Information Act - National Security Counselors

Freedom of Information
Exemption Overview
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 5200.1-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);
“Infrastructures” --§ 1.4(g);
“Weapons of Mass Destruction”--§ 1.4(h)
Presumption for classification of “Foreign
Government Information”--§ 1.1( c)
Freedom of Information Act
U.S.C. § 552(b)(2): Protects records that
are “related solely to the internal personnel
rules and practices of an agency.”
Two parts:
• High: 1. operating rules; guidelines; manuals for
investigators, auditors or examiners
2. examination questions and answers used
for training, employment or promotion
3. computer software, if disclosure would
allow circumvention and meets agency record test
Exemption 2
Predominantly internal
Release would cause agency harm
(Homeland security information)
Public interest in disclosure is irrelevant
Courts willing to go further to protect law
enforcement material/information
Exemption 2
Low 2: Covers trivial information of no
public interest
Predominantly internal
No genuine public interest
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
Awards, travel expenses, file numbers, data
processing notations (Senate intent)
(b)(2) High
 Vulnerability
Schreibman v. U.S. Department of Commerce
 Examples:
Pentagon AC Ducts
Lock mechanism manuals
Exemption 2
FOIA disclosure should not “benefit those
attempting to violate the law and avoid
 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 incorporates other federal
nondisclosure statutes into the FOIA
 See WORD document listing (b)(3)
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
U.S.C. § 552(b)(5): Protects “interagency 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?
Exemption 5
Exemption 5 threshold issues:
• Inter-agency (between) or intra-agency (within):
Klamath Water Users case (Functional test)
• Memorandum or letters
Covers anything in your file
• “Not available by law” refers to iformation normally
privileged in civil discovery
Exemption 5
 Three
main privileges:
Deliberative Process Privilege
Attorney Work Product Privilege
Attorney Client Privilege
Deliberative Process Privilege
• Designed to facilitate agencies’ decision making
Deliberative Process Privilege
 Three
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 decisionmaking 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:
• “Antecedent to the adoption of an agency policy”
• Not final agency decisions or statements of agency
• Not post-decisional statements that explain
• Predecisional documents can lose their protection
as such
Deliberative Process Privilege
2. The information must be deliberative:
• Analysis, evaluations, comments, advice,
• 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
 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
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.”
Non-law enforcement personal privacy
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
Personal Privacy Exemptions
 4-Step
Which exemption applies?
Is there an identifiable privacy interest?
Is there a legitimate public interest?
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
“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.
• Focus on agency’s conduct, not personal conduct
of individuals
• Information about private citizens will rarely show
the operations and activities of the government.
• Duty to segregate non-exempt information
Exemption 7
Protects information compiled for law
enforcement purposes, including criminal,
civil, administrative and regulatory
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
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