FOIA Exemptions

Not all records can be released under the Freedom of Information Act (FOIA).  Congress established certain categories of information that are not required to be released in response to a FOIA request because release would be harmful to governmental or private interests.   These categories are called "exemptions" from disclosures.  Still, even if an exemption applies, agencies may use their discretion to release information when there is no foreseeable harm in doing so and disclosure is not otherwise prohibited by law.  There are nine categories of exempt information and each is described below.  

  • Exemption 1: Information that is classified to protect national security.  The material must be properly classified under an Executive Order.
  • Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
  • Exemption 3: Information that is prohibited from disclosure by another federal law. Additional resources on the use of Exemption 3 can be found on the Department of Justice FOIA Resources page.
  • Exemption 4: Information that concerns business trade secrets or other confidential commercial or financial information.
  • Exemption 5: Information that concerns communications within or between agencies which are protected by legal privileges, that include but are not limited to:
    • Attorney-Work Product Privilege
    • Attorney-Client Privilege
    • Deliberative Process Privilege
    • Presidential Communications Privilege
  • Exemption 6: Information that, if disclosed, would invade another individual's personal privacy.
  • Exemption 7: Information compiled for law enforcement purposes if one of the following harms would occur.  Law enforcement information is exempt if it: 
    • 7(A). Could reasonably be expected to interfere with enforcement proceedings
    • 7(B). Would deprive a person of a right to a fair trial or an impartial adjudication
    • 7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy
    • 7(D). Could reasonably be expected to disclose the identity of a confidential source
    • 7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions
    • 7(F). Could reasonably be expected to endanger the life or physical safety of any individual
  • Exemption 8: Information that concerns the supervision of financial institutions.
  • Exemption 9: Geological information on wells.

Privacy Act Exemption

Criminal Law Enforcement Exemption (5 U.S.C. § 552(j)(2)) – records may be withheld from disclosure provided they are maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws and which consists of the following:

information compiled for the purpose of identifying individual criminal offenders and alleged offenders;
information compiled for the purpose of a criminal investigation; or
reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws.

Investigatory Material Exemption (5 U.S.C. § 552(k)(2)) – information compiled for law enforcement purposes, other than for the purpose of a criminal investigation, including material which, if released, would reveal the identity of a source who furnished information to the government under an express or implied promise of confidentiality.


Access To Records

In accordance with § 552a(d)(2) of the Privacy ActEach agency that maintains a system of records shall—permit the individual to request amendment of a record pertaining to him and:

  • not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request, acknowledge in writing such receipt; and
  • promptly, either
    • make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or
    • inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official;

 

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