Freedom of Information Act

The public has a right to information concerning the activities of its government. The Freedom of Information Act (FOIA) requires all Federal Agencies to conduct their activities in an open manner and to have a system for providing the public with the maximum amount of accurate and timely information allowed by law. Agencies commonly have a FOIA office for processing public requests for information.

The FOIA allows nine exemptions from this mandatory release policy. The purpose of the exemptions is to preclude the unauthorized disclosure of information that requires protection. These exemption categories reflect laws, executive orders, regulations, or court decisions that either require or permit protection of certain classes of information. The exemption categories, in turn, also help define information that may be protected. For example, Department of Defense Regulation 5200.1-R defines For Official Use Only information as "unclassified information that may be exempt from mandatory release to the public under the Freedom of Information Act (FOIA)."

DoD Regulation 5200.1-R, Appendix C, describes the nine FOIA exemptions as written below. The wording reflects the history of court decisions interpreting the Freedom of Information Act and, therefore, differs from the language of the act itself. To be exempt from mandatory release, information must fit into one of the following categories and there must be a legitimate government purpose served by withholding it.

1. Information which is currently and properly classified.

2. Information that pertains solely to the internal rules and practices of the agency. (This exemption has two profiles, "high" and "low." The "high" profile permits withholding of a document that, if released, would allow circumvention of an agency rule, policy, or statute, thereby impeding the agency in the conduct of its mission. The "low" profile permits withholding if there is no public interest in the document, and it would be an administrative burden to process the request.)

3. Information specifically exempted by statute establishing particular criteria for withholding. The language of the statute must clearly state that the information will not be disclosed.

4. Information such as trade secrets and commercial or financial information obtained from a company on a privileged or confidential basis that, if released, would result in competitive harm to the company, impair the government's ability to obtain like information in the future or to protect the government's interest in compliance with program effectiveness.

5. Inter-agency memoranda that are deliberative in nature; this exemption is appropriate for internal documents that are part of the decision making process and contain subjective evaluations, opinions and recommendations.

6. Information the release of which could reasonably be expected to constitute a clearly unwarranted invasion of the personal privacy of individuals.

7. Records or information compiled for law enforcement purposes that (a) could reasonably be expected to interfere with law enforcement proceedings; (b) would deprive a person of a right to a fair trial or impartial adjudication; (c) could reasonably be expected to constitute an unwarranted invasion of the personal privacy of others, (d) disclose the identify of a confidential source; (e) disclose investigative techniques or procedures; or (f) could reasonably be expected to endanger the life or physical safety of any individual

8. Certain records of agencies responsible for supervision of financial institutions.

9. Geological and geophysical information concerning wells.

Statutory/Regulatory Responsibilities & Obligations

FOIA requires agencies to promulgate policies to implement the requirements of the act and to publish these policies in the Federal Register. Each agency is responsible for establishing an appropriate administrative system to manage the FOIA.

The act has no requirements for protection of information. It only permits withholding information from disclosure, when appropriate.

When a FOIA request seeks public release of information held under exemption 4 (commercial information provided to the government on a confidential basis), the responsible government agency must determine whether the public's right to know outweighs the company's right to protection of proprietary information. If the agency determines that the information should be released under FOIA, Executive Order 12600 requires that the company be advised and be given an opportunity to present its arguments for continued protection before the information is released.

Any person who believes the federal government is withholding information from the public improperly may bring legal action against the responsible agency. District Courts of the United States have jurisdiction to enforce the requirements of this law by declaratory judgment, injunctive relief, or other relief as may be appropriate.

Legal & Regulatory Authorities
Title 5 USC 552 – Public Information; Agency Rules, Opinions, Orders, Records, Land Proceedings.
Executive Order 12600 – Predisclosure Notification Procedures for Confidential Commercial Information.
Presidential Memorandum on Administration of Freedom of Information Act, Oct. 4, 1993.
Attorney General memorandum for heads of Department and Agencies, Freedom of Information Act, Oct 4, 1993.

 

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