Under the Freedom of Information Act, 5 U.S.C. § 552, any person has a right to obtain access to federal agency records unless those records are exempted from public disclosure or excluded from the Act’s coverage. Under FOIA, there are nine (9) exemptions to disclosure and three (3) exclusions to protect law enforcement and national security records. If no exemption applies, the federal agency must undertake a search that is reasonably calculated to uncover relevant documents based on the requester’s description of the records sought. Federal agencies are not obligated to answer questions or to create records that do not exist.
Under 5 U.S.C. § 552(b), individuals are not entitled to records under FOIA if the records at issue fall into one of the following nine exemptions:
- National defense or foreign policy information or documents specifically and properly classified pursuant to an executive order.
- Related solely to the internal personnel rules and practices of an agency.
- Specifically exempted from disclosure by statute.
- Trade secrets and commercial or financial information obtained from a person that are privileged or confidential.
- Inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than the government in civil litigation with the government (e.g. privileged).
- Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
- Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:
- 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, including a state, local, or foreign agency or authority or any private institution that furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by 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.
- Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.
- Geological and geophysical information and data, including maps, concerning wells.
Each federal agency has its own process and procedures for responding to FOIA requests. However, if an agency denies a FOIA request, the requestor can appeal through an internal appellate process. If an individual has appealed a FOIA determination and is still dissatisfied with the agency’s response, they can seek judicial review in federal court.
