The Freedom of Information Act (FOIA): A Legal Overview
Released: 2020-02-24T00:00:00

T he Freedom of Information Act (FOIA) confers on the public a right to access federal agency information. Before FOIA's enactment, the Administrative Procedure Act (APA) had required agencies to make certain government information available to the public. But the exceptions to disclosure in the APA's public information section had, in the estimation of FOIA's drafters, "become the major statutory excuse for withholding Government records from public view." The exceptions were broad, authorizing agencies, for example, to withhold information if doing so was "in the public interest" orâfor "matters of official record"âwhen information was "held co nfidential for good cause found." In addition, the APA's public information section lacked a provision authorizing a person to seek judicial review of an agency's decision to withhold information.

To rectify the APA's perceived failure to provide the public with adequate access to government information, Congress enacted FOIA in 1966 as an amendment to the APA. In FOIA, Congress sought to establish a statutory scheme that embodied "a broad philosophy of 'freedom of information'" and ensured "the availability of Government information necessary to an informed electorate." To effectuate Congress's desire for robust public access to agency information, FOIA establishes a three-part system of disclosure by which agencies must disclose a large swath of records and information. First, FOIA directs agencies to publish "substantive rules of general applicability," procedural rules, and specified other important government materials in the Federal Register. Second, on a proactive basis, agencies must electronically disclose a separate set of agency information including, among other things, final adjudicative opinions and certain "frequently requested" records. And third, FOIA's request-driven system of disclosure requires that, "[e]xcept with respect to the records made available under" the statute's proactive disclosure provisions, agencies disclose covered records to individuals, corporations, and others upon request. FOIA's tripartite system of disclosure aims to open up a vast array of federal agency information and records to private individuals, researchers, journalists, corporations, and other parties. In addition, disclosure under FOIA may bring information to Congress's attention that may inform its oversight of FOIA-covered agencies. As one court has remarked, "FOIA is the legislative embodiment of Justice Brandeis's famous adage" that "[s]unlight is . . . the best of disinfectants."

While FOIA's main purpose is to inform the public of the operations of the federal government, the act's drafters sought to protect certain private and governmental interests from the new law's disclosure obligations. FOIA thus contains nine exemptions from disclosure that authorize, but do not require, agencies to withhold information or records that are otherwise subject to release or availability under the statute. Most of FOIA's nine enumerated exemptions are designed to protect against fairly general harms that may arise from disclosure, while others concern very specific types of information, and one incorporates numerous exemptions contained in other federal statutes. And along with its nine exemptions, FOIA contains three records "exclusions" that cover certain "especially sensitive law enforcement records." If records protected by an exclusion are subject to a FOIA request, an agency may "treat the records as not subject to the requirements of" FOIA.

Lastly, the statute authorizes requesters to challenge in federal court an agency's decision to withhold requested records. Federal district courts may "enjoin [an] agency from withholdingÂ agencyÂ records"Â and "orderÂ the production of anyÂ agencyÂ recordsÂ improperly withheld."

This report provides an overview of FOIA. First, the report examines key terms that dictate the scope of agencies' disclosure obligations under FOIA. The report then provides an overview of FOIA's three disclosure requirements. Following that discussion, the report reviews each of FOIA's nine exemptions and, in a later section, its three records exclusions. After an overview of selected issues concerning judicial review of agency decisions to withhold information under FOIA, this report discusses two topics of potential interest to Congress: FOIA's "special access" provisionâwhich provides that FOIA does not authorize agencies "to withhold information from Congress" âand the status of congressional records under FOIA. Lastly, this report discusses three other laws that, like FOIA, govern the availability of specific types of government information and constitute significant elements of the federal government's open government and information legal regimes: the Federal Advisory Committee Act (FACA); Government in the Sunshine Act (Sunshine Act); and Privacy Act.

Key Terms

FOIA generally requires each federal "agency" to make "agency records" available to the public and specifically to "any person" who requests them. FOIA does not, however, require every federal entity to disclose government information to the public, nor must an agency disclose every piece of information that may be located within a covered entity. And not all persons have a right to receive records under the act. Three key statutory terms inform FOIA's general scope: (1)Â "agency"; (2) "agency records"; and (3) "any person." The meaning of each of these terms determines which entities must comply with FOIA, what materials must be disclosed under the act, and to whom FOIA grants the right to request and receive records.

"Agency"

FOIA requires "agencies" to disclose a broad array of information to the public. The APA's general definition section in 5 U.S.C. Â§ 551 defines "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency." FOIA embraces this general definition and provides that, for the act's purposes, the term "includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." While this definition includes a large swath of the federal government, it does not encompass the entire federal establishment. For example, FOIA does not apply to Congress, the federal courts, or territorial governments.

Although FOIA's definition of "agency" includes the Executive Office of the President (EOP), courts have determined that several entities within the EOP are nevertheless not subject to the act. In Kissinger v. Reporters Committee for Freedom of the Press , the Supreme Court held that transcripts of Henry Kissinger's telephone conversations from his time as Assistant to the President for National Security Affairs were not subject to disclosure under FOIA. The Court explained that the term "agency" as used in FOIA does not apply to "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President ." Courts have determined that several EOP entities are not FOIA "agencies" by virtue of their solely advisory or operational functions, including the Council of Economic Advisers, Office of Administration, and National Security Council. On the other hand, courts have held that entities within the EOP that "wield[] substantial authority independently of the President," such as the Office of Management and Budget, are agencies under FOIA.

"Agency Records"

Just as only "agencies" are subject to FOIA's disclosure requirements, only "agency records" need be disclosed under the act. FOIA, however, does not define "agency records." Without a statutory definition, the Supreme Court, in Department of Justice (DOJ) v. Tax Analysts , held that materials qualify as agency records if an agency (1) created or obtained the materials and (2) was "in control of the requested materials at the time the FOIA request [was] made." An agency comes in control of materials if, per Tax Analysts , "the materials have come into the agency's possession in the legitimate conduct of its official duties."

As the two-part test makes clear, a record may be subject to disclosure even when an agency did not create the record, as long as the agency obtained and controlled the record when it was requested. To determine whether an agency exercises "control" of a record, the D.C. Circuit developed the " Burka test," which considers

1. the intent of the document's creator to retain or relinquish control over the records; 2. the ability of the agency to use and dispose of the record as it sees fit; 3. the extent to which agency personnel have read or relied upon the document; and 4. the degree to which the document was integrated into the agency's record system or files.

That said, an agency's mere ability to obtain materials, if not exercised, does not establish that such materials are agency records. And FOIA does not require an agency to create agency records in response to a FOIA request, only to disclose records it has already received or created and that are already under its control.

Because FOIA only applies to "agency records," it does not obligate agencies to disclose publicly the "personal records" of agency employees. As the Supreme Court in Tax Analysts explained, "the term 'agency records' is not so broad as to include personal materials in an employee's possession, even though the materials may be physically located at the agency." The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has employed "a totality of the circumstances test" to assess whether material constitutes an "agency record" subject to FOIA or a "personal record" excluded from the statute's coverage. This "test focuses on a variety of factors surrounding the creation, possession, control, and use of the document by an agency." In applying the totality of the circumstances test in Consumer Federation of America v. Department of Agriculture (USDA) , the D.C. Circuit held that electronic calendars of several USDA officials qualified as "agency records" under FOIA. The calendars "were created by agency employees and were located within the [officials'] agency," updated and accessed daily, and maintained on the agency's computer system. The court determined, however, that the "creation, possession, and control" factors were "not dispositive in determining whether the calendars [were] 'agency records'" in the case. Instead, the court held that the officials' use of the calendars was the "decisive factor." Specifically, the court found it significant that the calendars were used to schedule agency operations and were distributed to other agency staff and top officials. But the court determined that the electronic calendar of a separate USDA official was not an agency record subject to disclosure under FOIA because the official only shared the calendar with his secretaries and, therefore, no one else within the agency depended on his calendar to conduct agency business.

Although FOIA does not require the disclosure of personal materials, issues may arise when agency personnel use nonofficial electronic accounts to communicate. In Competitive Enterprise Institute v. Office of Science & Technology Policy (OSTP) , the requester sought "all policy/OSTP-related email[s]" contained within the private email account of the director of OSTP. A private entity maintained an account that the director used for work-related purposes. OSTP denied the request, asserting that the private entity (the director's former employer) controlled the account and that the agency, therefore, could not search it. The district court dismissed the suit in favor of the agency. However, the D.C. Circuit reversed, explaining that "records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency." Instead, the court wrote, "[i]f the agency head controls what would otherwise be an agency record, then it is still an agency record and still must be searched or produced." The D.C. Circuit's decision in Competitive Enterprise Institute , therefore, stands for the proposition that agency records are subject to FOIA even if contained in nongovernmental electronic accounts.

"Any Person"

Lastly, FOIA directs agencies to disclose nonexempt agency records to "any person" upon request. A "person" is defined as "an individual, partnership, corporation, association, or public or private organization other than an agency." Courts have therefore held that, along with individuals, organizational entities such as corporations, as well as state and foreign governments, have access rights under FOIA. That said, federal agencies have no right to records under FOIA.

Access to records under FOIA does not hinge on whether an individual is an American citizen; noncitizens are also entitled to records under the act. Further, the Supreme Court has explained that the requester's identity generally does not factor into whether records are subject to disclosure, nor is a requester generally required to supply a reason to an agency for his or her request.

Access to Government Information under FOIA

FOIA sets forth a three-part system for disclosing government information. The first two disclosure schemes require agencies to affirmatively disclose specific categories of information to the public, either through publication in the Federal Register or electronic disclosure. The third disclosure provision requires that, "[e]xcept with respect to the records made available" pursuant to FOIA's affirmative disclosure requirements, agencies disclose covered records after receiving a request from "any person."

Affirmative Disclosure

While FOIA may be known predominately for its request-driven system of disclosure, the statute also contains affirmative disclosure provisions that require federal agencies to proactively disseminate to the public certain agency records. FOIA imposes two affirmative (also known as mandatory or proactive ) disclosure obligations. Under the first requirementâcodified in subsection (a)(1) of Â§Â 552âagencies must publish certain important government materialsâincluding "substantive rules of general applicability" and "rules of procedure"âin the Federal Register. The second affirmative disclosure requirementâcodified in subsection (a)(2) of Â§ 552ârequires agencies to provide electronic access to a separate set of agency materials that consists of, among other things, final agency adjudicative opinions and certain "frequently requested" records.

Publication in the Federal Register

Under Â§ 552(a)(1), agencies must publish certain information "in the Federal Register for the guidance of the public." The provision seeks "to enable the public 'readily to gain access to the information necessary to deal effectively and upon equal footing with the Federal agencies.'" It instructs agencies to publish the following:

1. descriptions of agency organization and information regarding how, where, and from whom "the public may obtain information, make submittals or requests, or obtain decisions"; 2. information on how agency "functions are channeled and determined, including the nature and requirements of all formal and informal procedures available"; 3. (3) procedural rules, descriptions of available agency forms "or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations"; 4. (4) "substantive rules of general applicability adopted as authorized by law," as well as agency "statements of general policy or interpretations of general applicability"; and 5. (5) every "amendment, revision, or repeal of the foregoing."

FOIA imposes a penalty for an agency's failure to publish the above information, providing that no person shall "in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published." In other words, an agency may not enforce any material against an affected party that the agency did not publish in the Federal Register as required under subsection (a)(1), unless the affected party received "actual and timely notice of the terms thereof."

Courts have held that FOIA authorizes judicial review of an agency's withholding of (a)(1) materials. However, available remedies in such cases may be limited. In Kennecott Utah Copper Corporation v. Department of the Interior (DOI) , the D.C. Circuit held that FOIA does not authorize reviewing courts, as a remedy, to order an agency to publish materials in the Federal Register. The court explained that FOIA's judicial review provision "allows district courts to order 'the production of any agency records improperly withheld from the complainant ,' not agency records withheld from the public ." Whereas, as explained by the court, "[p]roviding documents to the individual fully relieves whatever informational injury may have been suffered by that particular complainant," requiring "publication goes well beyond that need." The court explained that the penalty in subsection (a)(1), which provides that materials required to be published in the Federal Register that an agency has not so published generally are unenforceable, is "an alternative means for encouraging agencies to fulfill their obligation to publish materials in the Federal Register" and "gives agencies a powerful incentive to publish any [(a)(1) materials] they expect to enforce."

Electronic Disclosure

FOIA's second affirmative disclosure provision does not require disclosure in a particular publication, as does subsection (a)(1). Instead, subsection (a)(2) of Â§ 552 (often referred to as the "reading-room provision") directs agencies to "make available for public inspection in an electronic format" certain information, unless the information is "promptly published and copies [are] offered for sale." The following information must be electronically disclosed under FOIA's second affirmative disclosure provision:

1. (1) "final opinions . . ., as well as orders, made in the adjudication of cases"; 2. (2) policy statements and interpretations not appearing in the Federal Register; 3. (3) "administrative staff manuals and instructions to staff that affect a member of the public"; 4. (4) copies of records that had been released in response to a FOIA request and that (a) "the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records" due to the nature of the records' subject or (b) "have been requested 3 or more times"; and 5. (5) indexes of such previously released records.

The 1966 House report underlying FOIA explained that this provision was intended to open up to the public the "thousands of orders, opinions, statements, and instructions issued by hundreds of agencies," information that the report described as constituting "the bureaucracy['s] . . . own form of case law." In that vein, the Supreme Court has explained that FOIA's second affirmative disclosure provision "represents a strong congressional aversion to 'secret [agency] law.'" Materials subject to subsection (a)(2) are now generally made accessible on agency websites.

In addition to public dissemination of the above materials, subsection (a)(2) requires that agencies "maintain and make available for public inspection in an electronic format" indexes of (a)(2) material. And an agency may not rely on, use, or cite as precedent a "final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public" unless the agency has (1) indexed the material and published or made it available, or (2) given the affected party "actual and timely notice of the terms" of such material.

As with (a)(1) materials, FOIA authorizes judicial review of challenges to the availability of materials subject to disclosure under subsection (a)(2). Courts do not appear to agree, however, whether they have authority under FOIA to order agencies to make (a)(2) records available in agency reading rooms, or whether their authority under the statute is limited to ordering the production of records to individual complainants.

Request-Driven Disclosure

Under the two affirmative disclosure provisions discussed above, agencies must proactively disclose specific types of information. By contrast, under FOIA's third system of disclosure, agencies disclose covered records not "made available under" the affirmative disclosure provisions on a case-by-case basis after receiving a request. As discussed below, FOIA imposes certain procedural requirements on requesters and agencies in making and responding to requests for records. And, also as discussed below, the act allows requesters to internally appeal agency decisions to withhold records, a process requesters generally must take advantage of prior to seeking review in federal court.

Section 552(a)(3)(A) of title 5 of the U.S. Code governs the production of records requested under FOIA. Under that section, "each agency . . . shall make . . . records promptly available to any person" after receiving a FOIA request. An agency must respond to a request that satisfies two requirements. First, a request must "reasonably describe[]" the records sought. The House committee report underlying the 1974 amendments to FOIA states that a "'description' of a requested document would be sufficient if it enabled a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort." Second, a FOIA request must comply with the agency's "published rules stating the time, place, fees (if any), and procedures to be followed."

If a requester submits a valid request, an agency must execute an "adequate" or "reasonable" search. This standard requires that an agency conduct a search that is "reasonably calculated to uncover all relevant documents." The D.C. Circuit has explained that "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." FOIA also states that agencies must "make reasonable efforts to search for . . . records in electronic form or format," unless doing so "would significantly interfere with the operation of the agency's automated information system." DOJ guidance provides that this latter requirement "promotes electronic database searches and encourages agencies to expend new efforts in order to comply with the electronic search requirements of particular FOIA requests."

To facilitate its disclosure mandate, FOIA requires agencies to respond within certain timeframes and authorizes administrative review of unfavorable agency decisions. Once it receives a valid FOIA request, an agency has twenty business days to "determine . . . whether to comply with [the] request" and "shall immediately notify the" requester of its "determination and the reasons therefor," as well as of the requester's right to appeal an "adverse determination" within the agency. In "unusual circumstances"âas defined by the statuteâan agency may extend the twenty-day period by ten additional days. In Citizens for Responsibility & Ethics in Washington v. Federal Election Commission , the D.C. Circuit, in an opinion authored by then-Judge Brett Kavanaugh, held that to make a proper "determination," an "agency must at least indicate within the relevant time period the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents." The court explained that an agency need not produce requested records when it makes its initial determination, determining that it may fulfill its responsibility under Â§ 552(a)(3)(A) to "make . . . records promptly available" after it indicates the scope of the records it will disclose and the exemptions it will invoke.

A requester who receives an adverse determination may appeal the determination within the agency. Upon receiving an administrative appeal, an agency has twenty business days to make a determination, although, as in the context of initial determinations, it may extend this timeline by ten days for unusual circumstances. If the agencyâin whole or in partâupholds its adverse determination, it must inform the requester of FOIA's provisions governing judicial review of agency withholding decisions. Judicial review can proceed if the requester remains dissatisfied.

Before challenging an agency's nondisclosure decision in federal court, a requester typically must exhaust any remedies that an agency affords the requester. Plaintiffs will fail to exhaust administrative remedies if they did not submit a valid FOIA request to the agency or did not internally appeal the agency's adverse decision. However, if the agency does not adhere to the response timeframes FOIA imposes on agencies, a requester "shall be deemed to have exhausted his administrative remedies." If this occurs, the requester is viewed as having constructively exhausted administrative remedies and may seek review in federal court. However, if an agency belatedly responds to a request before the requester files suit, the requester must still internally appeal the agency's adverse determination before seeking recourse in the federal courts.

Exemptions

As explained above, FOIA establishes a statutory right of public access to a wide array of government information. However, FOIA's drafters also desired to protect certain private and governmental interests from the law's broad disclosure mandate. FOIA reflects this desire by exempting a variety of records and information from mandatory disclosure pursuant to nine enumerated exemptions. Information protected by FOIA's exemptions ranges from certain classified national security information to geological information pertaining to wells. Together, the statute's policy of otherwise maximum disclosure and its exemptions seek to strike a "balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy."

FOIA's exemptions are codified at 5 U.S.C. Â§ 552(b). Table 1 lists each exemption. All nine exemptions are explained more fully below.

Despite the scope afforded to agencies to withhold certain records by FOIA's exemptions, the statute is fundamentally a disclosure statute. In that vein, the Supreme Court has directed that FOIA's exemptions should "be narrowly construed." The statute reflects FOIA's presumption in favor of disclosure by explicitly requiring that agencies "take reasonable steps necessary to segregate and release nonexempt information" and disclose "[a]ny reasonably segregable portion of a record" that has been requested "after deletion of the portions which are exempt." More fundamentally, FOIA's exemptions do not impose mandatory withholding obligations on agencies, and pursuant to the 2016 amendments to FOIA, an agency may not withhold government information protected by an exemption unless it "reasonably foresees that disclosure would harm an interest protected by an exemption," or if disclosing the information is legally prohibited. Such limitations on the potential breadth of FOIA's exemptions may aid in the implementation of the statute's prodisclosure mandate.

The Supreme Court has instructed that, due to the "exclusivity" of FOIA's exemptions, the act does not authorize an agency to withhold a covered record or information that is not protected by an applicable exemption. And in American Immigration Lawyers Association v. Executive Office for Immigration Review , the D.C. Circuit held that, when disclosing a record under FOIA, an agency may not redact information from that record on the basis that the information is "non-responsive," but instead is limited by FOIA's nine exemptions in the types of information it may redact. The court explained that, although an agency may apply a FOIA exemption to withhold matter from a record, "once an agency identifies a record it deems responsive to a FOIA request, the statute compels disclosure of the responsive record . . . as a unit." Thus, per the court, although "the focus of the FOIA is information, not documents" when the agency is deciding whether to exempt matter from a record, "outside of that context, FOIA calls for disclosure of a responsive record, not disclosure of responsive information within a record."

An agency may be prohibited by another source of law from disclosing material that is exempt under FOIA. For example, under FOIA's Exemption 3, certain statutes that prohibit or place limits on agencies' disclosure of information may serve as bases under FOIA for withholding covered information. An agency's disclosure of information protected by an Exemption 3 withholding statute, therefore, could, depending on the statute's terms, violate that particular statute. As another example, although FOIA's Exemption 4 authorizes an agency to withhold certain confidential "commercial or financial information" and trade secrets, the Trade Secrets Act (TSA) imposes criminal penalties for disclosing certain confidential materials if disclosure is not "authorized by law." Thus, while Exemption 4 grants agencies discretion to withhold information covered by both the exemption and the TSA, the TSA would prohibit the unauthorized disclosure of the information. Ultimately, however, if records within FOIA's coverage are not exempt under FOIA or prohibited from being disclosed by another law, an agency must disclose such records upon request.

Under certain circumstances, an agency may be held to have waived its ability to apply an exemption to a requested record due to its prior disclosure of information. For example, the D.C. Circuit has "held . . . that the government cannot rely on an otherwise valid exemption claim to justify withholding information that has been 'officially acknowledged' or is in the 'public domain.'" Courts often have held that an agency's prior disclosure of information to Congress has not foreclosed application of an exemption in response to a subsequent FOIA request. However, whether an agency has waived an exemption is necessarily dependent on "the specific nature and circumstances of the prior disclosure."

Exemption 1: National Defense or Foreign Policy

The first FOIA exemption authorizes agencies to withhold certain matters that pertain to "national defense or foreign policy." Specifically, Exemption 1 allows an agency to withhold information that is "(A) specifically authorized under criteria established by an ExecutiveÂ orderÂ to be kept secret in the interest of national defense or foreign policy and (B) [which is] in fact properly classified pursuant to such ExecutiveÂ order." This exemption reflects Congress's interest in maintaining the confidentiality of information implicating national defense and security. However, as the text makes clear, not all national-security-related information may be withheld under Exemption 1. Instead, only those national defense or foreign policy matters that have been properly classified through an applicable executive order are covered.

At present, Executive Order 13526 primarily governs the classification of national security information by the executive branch. The executive order prescribes the procedures for classifying national security information and lists the categories of information to which the order applies, which include "military plans, weapons systems, or operations"; "scientific, technological, or economic matters relating to the national security"; and "United States Government programs for safeguarding nuclear materials or facilities." Information that an agency seeks to withhold from disclosure under Exemption 1 must satisfy the substantive and procedural requirements contained in Executive Order 13526.

Exemption 2: Internal Personnel Rules and Practices

FOIA's second exemption applies to records that are comparatively more "routine" and generally prone to less public interest than the national-security-related matters agencies may withhold under Exemption 1. Exemption 2 authorizes agencies to exempt from disclosure information that is "related solely to the internal personnel rules and practices of an agency." The Supreme Court has held that "personnel rules and practices" under Exemption 2 are those that address "employee relations or human resources." This exemption covers rules and practices pertaining to "hiring and firing, work rules and discipline, [and] compensation and benefits." To fall under Exemption 2, information must pertain "exclusively or only" to personnel rules and practices, and, as the Supreme Court has explained, an "agency must typically keep [such] records to itself for its own use."

For years, many courts interpreted this provision to cover not only the employee relations and humans resources information described above, but also records that were predominantly internal and whose release would "significantly risk[] circumvention of agency regulations or statutes." But in Milner v. Department of the Navy , the Supreme Court held that this broad view of Exemption 2 contravened the ordinary meaning of "personnel rules and practices"âwhich the Court read as applying only to employee relations and human resources records âand impermissibly incorporated an extrastatutory "circumvention requirement" into the exemption. After Milner , agencies wishing to withhold information that would have previously qualified as High 2 information must locate possible alternatives to Exemption 2 in other FOIA exemptions.

Exemption 3: Matters Exempted by Other Statutes

With the exceptions of Exemptions 8 and 9, exemptions for information on a particularly specific subject or issue tend to be governed by FOIA's third exemption. Exemption 3 generally allows agencies to withhold information if it is "specifically exempted from disclosure by" a non-FOIA statute. In other words, disclosure under Exemption 3 is determined not by the category of information at issue, but rather by the information's protection by another statute. Congress has enacted a variety of statutes that prohibit or place limitations on the disclosure of information by the government. These statutory confidentiality requirements cover a wide range of information, including such diverse categories as information pertaining to visa determinations, drug pricing data, patent applications, and tax returns, to name but a few.

Congress, however, did not intend for Exemption 3 to apply to every statute that authorizes or requires the withholding of information. Congress limited the exemption's coverage to two particular categories of statutes "to assure," as the D.C. Circuit has written, "that basic policy decisions on governmental secrecy be made by the Legislative rather than the Executive branch." The first category of laws that Exemption 3 covers are statutes that direct agencies to withhold information "from the public in such a manner as to leave no discretion on the issue." The second embraces statutes that "establish[] particular criteria for withholding or refer[] to particular types of matters to be withheld." In American Jewish Congress v. Kreps , the D.C. Circuit explained that the first category "embraces only those statutes incorporating a congressional mandate of confidentiality that, however general, is absolute and without exception." The second category, however, "does leave room for administrative discretion"; statutes embraced by that category cabin or direct an agency's discretion by specific standards or criteria. A record must fall within the terms of a statute embraced by either category to fall under Exemption 3.

Exemption 3 limits the universe of statutes subject to its coverage in one additional way. Any statute enacted after the date of the OPEN FOIA Act of 2009 must "specifically cite[] to" the exemption to qualify as an Exemption 3 withholding statute. Courts, accordingly, have held that statutes enacted after October 28, 2009, that fail to cite to Exemption 3 do not qualify as an exemption statute under FOIA, even if they would otherwise fall within the first two categories described above.

Exemption 4: Trade Secrets and Commercial or Financial Information

Third parties regularly submit an enormous amount of sensitive proprietary information to the federal government, including in such varied situations as military and other government contracts; settlement negotiations with agencies; and applications for drug approvals by the Food and Drug Administration. FOIA's Exemption 4 authorizes agencies to exempt from disclosure many types of sensitive information that individuals and entities from outside the federal government transmit to the government. Specifically, the exemption protects (1) "trade secrets" and (2) "commercial or financial information obtained from aÂ personÂ . . . [that is] privileged or confidential."

The D.C. Circuit defines a "trade secret" for purposes of Exemption 4 as any

secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort.

Courts have interpreted the exemption to embrace a broad range of information, allowing, for example, agencies to exempt as trade secrets "documents contain[ing] information consisting of drug product manufacturing information, including manufacturing processes or drug chemical composition and specifications," as well as "information regarding the quantities of menthol contained in cigarettes by brand and by quantity in each brand and subbrand."

Most Exemption 4 litigation, however, does not concern trade secrets, but rather information potentially exempt under the "commercial or financial information" prong of Exemption 4. Under that prong, materials may be withheld under FOIA if they (1) constitute "commercial or financial information," (2) have been supplied to an agency by a "person," and (3) are "privileged or confidential." While each element of the prong must be satisfied for information other than a trade secret to qualify as exempt, a particularly significant question courts face in Exemption 4 litigation is whether commercial or financial information is "confidential" within the meaning of Exemption 4.

Prior to 2019, the leading test for determining the meaning of "confidential" under the exemption was developed by the D.C. Circuit in National Parks & Conservation Association v. Morton . Under the National Parks test, commercial or financial information was deemed confidential "if disclosure of the information [was] likely . . . (1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained." Under National Parks , therefore, the courts looked to the effect of disclosing commercial or financial information on the federal government or submitter of information.

But in Food Marketing Institute (FMI) v. Argus Leader Media , the Supreme Court rejected the D.C. Circuit's test and instead held that "[a]t least where commercial or financial information is both [1] customarily and actually treated as private by its owner and [2] provided to the government under an assurance of privacy, the information is 'confidential' within the meaning of Exemption 4." This definition is broader than the National Parks test and permits agencies to withhold a larger category of information from FOIA's disclosure mandate. But the Supreme Court did not define the precise boundaries of its new test in FMI ; although the Court determined that "[a]t least the first condition" must be present for information to qualify as confidential, it did not decide whether the government must always provide assurances that information will be kept private in order for information to fall within Exemption 4's coverage.

Exemption 5: Inter- or Intra-Agency Memoranda or Letters

Exemption 5 applies to "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." The 1966 House report accompanying the FOIA legislation indicates that the exemption was drafted with the intention of ensuring the "full and frank exchange of opinions" within the executive branch and based on the proposition that requiring an agency to release information prior to finalizing an action or decision will hinder its ability to effectively function. To fall within Exemption 5's coverage, a document must both (1) qualify as an "inter-agency or intra-agency" document and (2) "fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it."

Material is "inter-agency or intra agency" if it originates from an "agency," as that term is defined by FOIA. Some courts have also recognized what is known as the "consultant corollary," under which Exemption 5 protects certain materials that have been supplied to an agency by external consultants. Nonetheless, Exemption 5 does not protect all such communications. In DOI v. Klamath Water Users Protective Association , for example, the Supreme Court held that information submitted to DOI by certain American Indian tribes concerning the allocation of water rights did not constitute "intra-agency" records because the tribes had "communicate[d] with the [agency] with their own, albeit entirely legitimate, interests in mind" and sought "a Government benefit at the expense of other applicants."

An inter- or -intra-agency document will only qualify as exempt if, in the context of pretrial discovery, it would not "be routinely or normally disclosed upon a showing of relevance" in litigation against the agency. Accordingly, agency materials that would be routinely or normally disclosed in such contexts are not covered by the exemption. That a record must be disclosed in discovery upon a sufficient showing of need does not remove the record from Exemption 5's protection, as records subject to disclosure in such circumstances "are . . . not 'routinely' or 'normally' available to parties in litigation."

The Court has explained that Exemption 5 "incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context." The exemption has been construed to embrace privileges mentioned in FOIA's legislative history, but privileges not mentioned may also be incorporated. However, a privilege not expressly listed in the legislative history and considered "novel" or having "less than universal acceptance" would be less likely to fall within Exemption 5's scope.

Both the Supreme Court and lower federal courts have identified several privileges that Exemption 5 embraces and that may, therefore, serve as bases for withholding agency documents, including the privileges discussed below.

D eliberative P rocess P rivilege . The deliberative process privilege is recognized as a component of the more general "executive privilege." The Supreme Court has explained that the deliberative process privilege applies to agency "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policiesÂ are formulated." The privilege protects agency records that are "predecisional" (i.e., they predate an agency decision) and "deliberative" (i.e., they reflect "the give-and-take of the consultative process"). Factual material is generally not protected by the exemption. Notably, the FOIA Improvement Act of 2016 amended Exemption 5 to exclude application of the privilege to documents that were "created 25 years or more before the date on which [they] were requested."

P residential C ommunications P rivilege . The presidential communications privilege is also a component of executive privilege and has been recognized as applicable in the Exemption 5 context. The Supreme Court has held that the privilege protects from mandatory disclosure "communications in performance of [a President's] responsibilities, of his office, and made in the process of shaping policies and making decisions." The D.C. Circuit has held that the privilege also protects "communications authored or received in response to . . . solicitation[s] by" senior White House advisers "in the course of gathering information and preparing recommendations on official matters for presentation to the President," as well as records "authored or solicited and receivedÂ by . . . members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given to the President on a particular matter." Unlike the deliberative process privilege, the presidential communications privilege "applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones."

A ttorney- C lient P rivilege . Exemption 5 also incorporates the attorney-client privilege. The attorney-client privilege generally protects "communication[s] made between privileged persons in confidence for the purpose of obtaining or providing legal assistance for the client." Exemption 5 incorporates the privilege as it exists for government attorneys, where, as explained by the D.C. Circuit, "the 'client' may be the agency and the attorney may be an agency lawyer." The privilege does not cover information "adopted as, or incorporated by reference into, an agency's policy."

A ttorney W ork - P roduct P rivilege . In the context of Exemption 5, the attorney work-product privilege embraces "materials prepared in anticipation of litigation" by an agency. The privilege serves to protect and maintain an effective adversarial litigation system. While records must have been prepared in anticipation of litigation to be protected by the exemption, in Federal Trade Commission v. Grolier , the Supreme Court held that materials may be withheld under Exemption 5 even if the litigation for which the materials were prepared has since ended. The Court's decision was based on its interpretation of Rule 26 of the Federal Rules of Civil Procedure, which is the source of the work-product doctrine for pretrial discovery in federal civil litigation. It was also based on the fact that, generally, federal judicial decisions regarding "Rule 26[] had determined that work-product materials retained their immunity from discovery after termination of the litigation for which the documents were prepared, without regard to whether other related litigation is pending or is contemplated." The court explained that, because "Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context," materials protected by the work-product privilege were not "'routinely' available in subsequent litigation."

Other Privilege s . The Supreme Court and lower courts have determined that other privileges are embraced by Exemption 5. For example, in United States v. Weber Aircraft Corp. , the Supreme Court held that the privilege protecting "[c]onfidential statements made to air crash safety inspectors," known as the Machin privilege, was incorporated by the exemption. The Court has also held that Exemption 5 applies to "confidential commercial information, at least to the extent that this information is generated by the Government itself in the process leading up to awarding a contract."

Exemption 6: Personnel, Medical, and Similar Files

Exemption 6 exempts from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Federal agencies maintain a large amount of information about individuals, such as health and medical records, criminal records, home addresses, social security numbers, and a variety of other types of personal information. Exemption 6 helps shield "individuals from the injury and embarrassment" that may stem from the disclosure of personal information maintained by the government. The exemption applies to citizens and noncitizens alike, but courts have not extended its protections to corporations.

As an initial manner, an agency may only withhold information for impermissibly invading an individual's privacy if it is a personnel, medical, or "similar" file. FOIA does not contain a definition of these terms, but, as some courts have explained, personnel and medical files "generally contain a variety of information about a person, such as place of birth, date of birth, date of marriage, employment history, and comparable data." And the Supreme Court has held that the term "similar files" broadly embraces any "information which applies to a particular individual." Courts have identified a variety of information types that qualify as "files" under Exemption 6, including, for example, the names and addresses of federal annuitants; individuals' citizenship information; information associated with asylum requests; and "information regarding marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, [and] reputation."

Information is not exempt from disclosure under FOIA, however, merely because it qualifies as a personnel, medical, or similar file. Such files must still be disclosed upon request unless release "would constitute a clearly unwarranted invasion of personal privacy." To determine whether disclosure would rise to such a level, agencies and courts balance the privacy interest associated with the requested information against "the public interest in disclosure." Courts typically require that an agency assert a privacy interest that is "substantial" (or more than " de minimis ") to justify withholding the information. And the Supreme Court has held that "the only relevant public interest in disclosure . . . is the extent to which disclosure would serve the core purpose of FOIA, which is contributing significantly to public understanding of the operations or activities of the government." If the asserted privacy interest outweighs the public interest in disclosure, the information is exempt.

Exemption 7: Law Enforcement Records or Information

FOIA's seventh exemption applies to "records or information compiled for law enforcement purposes," but only where disclosure of such agency records "would" or "could reasonably be expected to" result in certain harms specified by the exemption (and discussed below). As the Supreme Court has explained, Exemption 7 stemmed from Congress's belief "that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their cases."

To qualify as exempt under Exemption 7, a record must have been "compiled" for law enforcement purposes. This criterion may be satisfied even if the record was not originally compiled for law enforcement purposes, as the Supreme Court has held that this exemption also applies if material was subsequently gathered for law enforcement purposes, prior to the agency's response to the FOIA request. Further, the Court has held that material that was originally compiled "for law enforcement purposes continues to meet the threshold requirements of Exemption 7 where [it] is reproduced or summarized in a new document prepared for a non-law-enforcement purpose." As explained by the D.C. Circuit, "the term 'compiled' in Exemption 7 requires that a document be created, gathered, or used by an agency for law enforcement purposes at some time before the agency invokes the exemption."

Courts have applied Exemption 7 to records compiled for criminal, civil, and administrative enforcement, as well as to materials associated with agencies' national and homeland security functions. Further, the exemption not only applies to agencies that primarily engage in law enforcement, but also to agencies that possess both administrative and law enforcement responsibilities ("mixed-function agencies"). Although, on judicial review, an agency must establish that materials withheld under Exemption 7 are compiled for purposes of law enforcement to properly invoke the exemption, agencies whose primary function is criminal law enforcement are often subject to comparatively relaxed standards of proof on this question than are mixed-function agencies.

Exemption 7 only applies to certain statutorily specified types of law enforcement records. Therefore, establishing that material has been compiled for law enforcement purposes is insufficient to exempt it from disclosure under FOIA; even if a withheld record was compiled for such purposes, it may only be exempted from disclosure if disclosure may or will lead to one of the harms identified in subexemptions (A) through (F).

Exemption 7(A) authorizes the withholding of law enforcement records where disclosure "could reasonably be expected to interfere with enforcement proceedings." Courts have held that Exemption 7(A) applies in the context of a "pending or prospective" enforcement proceeding and where disclosure "could reasonably be expected to cause some articulable harm" to those proceedings, such as by obstructing an agency's investigation or placing an agency "at a disadvantage when it came time to present [its] case[]." However, courts have established limits to Exemption 7(A)'s application. For example, many courts have held that agencies must satisfy a high burden in proving that harm will occur from "the release of information that the targets of the investigation already possess . "

Exemption 7(B) applies where disclosure "would deprive a person of a right to a fair trial or an impartial adjudication." The D.C. Circuit has explained "that a trial or adjudication [must be] pending or truly imminent" in order to trigger Exemption 7(B), and "that it [must be] more probable than not that disclosure . . . would seriously interfere with the fairness of those proceedings." And the D.C. Circuit has held that, as to disclosure's effect on the fairness of proceedings, courts must examine "the significance of any alleged unfairness in light of its effect . . . on the proceedings as a whole," and not simply whether disclosure would bestow "a slight advantage . . . on a party in a single phase of a case."

Exemption 7(C) authorizes the withholding of records where disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Like Exemption 6, Exemption 7(C) was designed to protect personal privacy interests. However, as the Supreme Court has explained, the latter exemption provides more protection for materials under its coverage than does the former. Exemption 6 only applies to disclosures that " would constitute a clearly unwarranted invasion of personal privacy." Exemption 7(C), however, is more encompassing: it does not include the word "clearly," and it protects against disclosures that merely "could reasonably be expected to" effect an unwarranted intrusion into personal privacy. Despite these differences, however, both exemptions are guided by many of the same privacy principles discussed above in relation to Exemption 6. For example, courts determining the availability of Exemption 7(C) often engage in the same type of case-by-case balancing of the private interests at stake and the public interest in disclosure as they do in the Exemption 6 context.

Exemption 7(D) applies to disclosures which "could reasonably be expected to disclose the identity of a confidential source," as well as to "information furnished by a confidential source" where "records or information [were] compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation." A source is "confidential" if the government expressly pledges to keep information supplied by the source in confidence or if "such an assurance could be reasonably inferred" from the circumstances. According to the Supreme Court's decision in DOJ v. Landano , "[a] source should be deemed confidential if the source furnished information with the understanding that the [agency] would not divulge the communication except to the extent [it] thought necessary for law enforcement purposes." While the Court in Landano rejected the government's argument that confidentiality is generally presumed simply because a source has worked with the FBI during a criminal investigation, it did hold that such a presumption may exist where "circumstances such as the nature of the crime investigated and the witness' relation to it support an inference of confidentiality."

Exemption 7(E) provides that records may be withheld where disclosure "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." As can be seen from the text, this subexemption applies to two different types of investigation and prosecution materials: "techniques and procedures" and "guidelines." Courts are split as to whether the exemption applies to the disclosure of both types of materials or only to the "guidelines" described in the subexemption's second clause.

Exemption 7(F) authorizes withholding where disclosure "could reasonably be expected to endanger the life or physical safety of any individual." Prior to 1986, this subexemption only protected against disclosures that could endanger law enforcement personnel. However, the 1986 amendments to FOIA expanded Exemption 7(F)'s coverage by substituting "any individual" for "law enforcement personnel."

Exemption 8: Financial Institution Reports

Exemption 8 protects matters "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." The Senate report underlying the original law explains that, by limiting the availability of the covered financial reports to the agencies tasked with overseeing financial institutions, the exemption was intended to protect such institutions' security. Courts have also opined that Exemption 8 was intended "to safeguard the relationship between the banks and their supervising agencies."

Exemption 9: Geological and Geophysical Information and Data Concerning Wells

Exemption 9 exempts from disclosure "geological and geophysical information and data, including maps, concerning wells." Courts have not had many opportunities to interpret this exemption, as agencies do not often invoke it.

Exclusions

In addition to its nine exemptions, FOIA also contains three records exclusions. FOIA's exclusions allow an agency, in response to a request for certain law enforcement records, to "treat the records as not subject to the requirements of" FOIA. As the Attorney General ' s Memorandum on the 1 9 86 Amendments to the Freedom of Information Act explains, when an agency receives a request for records that fall within the coverage of an exclusion, the agency is authorized to withhold the records and "respond to the request as if the excluded records d[o] not exist." FOIA's exclusions, in other words, allow agencies to "withhold documents without comment." Conversely, when an agency invokes a FOIA exemption in response to a request for records, it is required to "reveal the fact of and grounds for any withholdings" to the requester. FOIA's exclusions, therefore, are designed to allow agencies to better avoid disclosure of the narrow categories of records to which they apply. Each of FOIA's three exclusions is codified at 5 U.S.C. Â§ 552(c).

Exclusion (c)(1). The first exclusion covers records protected by Exemption 7(A) (i.e., records whose disclosure "could reasonably be expected to interfere with enforcement proceedings"), but only if

the relevant law enforcement proceeding or investigation concerns a "possible" criminal violation; and the agency has "reason to believe" both that the pendency of the proceeding or investigation is unknown to the subject of the proceeding or investigation, and revealing the records' existence "could reasonably be expected to interfere with enforcement proceedings."

The exclusion was intended to prevent an agency from "tipping off" an individual about the existence of an investigation of which he or she is a subject by stating, in response to a FOIA request, that requested records are exempt from disclosure under Exemption 7(A). While agencies can rely on this exclusion to prevent such an outcome, by its terms, Exclusion (c)(1) is only available to an agency while the conditions described in its text continue. Accordingly, once the investigation becomes public, this exclusion no longer applies.

Exclusion (c)(2). The second exclusion applies to records that are "maintained by a criminal law enforcement agency under an informant's name or personal identifier." When a third party requests such records "according to the informant's name or personal identifier," Exclusion (c)(2)Â authorizes the agency to "treat the records as not subject to the requirements of" FOIA. The Attorney General's memorandum on the 1986 amendments to FOIA describes FOIA's second exclusion as contemplating "the situation in which a sophisticated requester could try to ferret out an informant in his organization by forcing a law enforcement agency" to invoke FOIA's exemption for records relating to a confidential source (Exemption 7(D)), an action that would likely corroborate the requester's suspicion that the individual subject to the request is a confidential informant. The memorandum cites as an example the situation in which a criminal organization that suspects one of its members is a criminal informant either requires that the suspected informant request law enforcement records about himself or herself, or else compels the individual to submit a privacy waiver to allow a member of the organization to make such a request. Exclusion (c)(2) authorizes law enforcement agencies to protect against the disclosure of the identities of their confidential informants in such situations. However, like Exclusion (c)(1), an agency's ability to use the second exclusion is subject to an important limitation: an agency may not use the second exclusion if "the informant's status as an informant has been officially confirmed."

Exclusion (c)(3). FOIA's third exclusion protects a subset of FBI records concerning "foreign intelligence," "counterintelligence," or "international terrorism." The FBI may treat such records as excluded from FOIA if "the existence of the records is classified information as provided in" Exemption 1. Exclusion (c)(3) seeks to prevent the harm that may occur from an agency's publicly claiming the protection of Exemption 1 in response to a request and, therefore, admitting that such sensitive records do indeed exist. Like the other exclusions, however, the third exclusion's protective ambit is limitedâan agency may only use Exclusion (c)(3) for such time "as the existence of [such] records remains classified information."

FOIA-Related Litigation: Selected Issues

FOIA not only established a statutory right of access to agency records, but also provided a means for requesters to enforce that right through judicial review of agency decisions to withhold records. Conversely, parties may initiate legal actions to prevent agencies from disclosing information requested under FOIA in certain situations. These aspects of FOIA and FOIA-related litigationâjudicial review of agencies' withholding decisions and so-called reverse-FOIA litigationâare discussed below.

Judicial Review of Agency Withholding Decisions

Under 5 U.S.C. Â§ 552(a)(4)(B), federal district courts have "jurisdiction to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." The Supreme Court, accordingly, has explained that a court has jurisdiction under Â§ 552(a)(4)(B) if it can be shown "that an agency has (1) improperly; (2)Â withheld; (3) agency records." In DOJ v. Tax Analysts , the Court held that, because FOIA's exemptions are "exclusive," agency records are "improperly" withheld when an agency refuses to disclose requested records that are not protected by an applicable exemption. Yet the Court has also held that an agency's decision to withhold a record is not "improper" if a court order prohibits the agency from disclosing the record. Further, in Kissinger v. Reporters Committee for Freedom of the Press , the Court held that records are not "withheld" under Â§Â 552(a)(4)(B) if, before a request was filed, the records were "removedÂ from the possession of the agency." The Court did not answer whether an agency "withholds" a record when it "purposefully route[s] a document out of agency possession in order to circumvent a FOIA request." However, as one court has explained, "an agency's FOIA obligations might extend to documents that are not in the agency's immediate custody or control . . . when there is evidence to suggest that the requested records are outside of the agency's control precisely because the agency has attempted to shield its records from search or disclosure under the FOIA."

An improper withholding is not limited to those situations in which an agency explicitly rejects a FOIA request or fails to respond to a request. For example, an inadequate search for responsive records is also an improper withholding. (The requirement that an agency conduct an adequate search is discussed above. )

FOIA instructs courts to review appeals from agency withholding decisions "de novo." Under this standard of review, a court accords no deference to the agency's decision below. That said, courts will sometimes defer to an agency's judgment in some aspects of FOIA litigation. For example, courts in FOIA disputes generally accord "some measure of deference to the executive in cases implicating national security." The scope and standard of review in FOIA cases may differ in other instances, as well. For instance, while judicial review of an agency's decision regarding fee waivers is de novo, FOIA states that review "shall be limited to the record before the agency."

The agency has the burden of proving that it properly withheld information under a FOIA exemption. Agencies defending withholding decisions in federal court often supply what is known as a " Vaughn Index" to aid in justifying their decisions. In FOIA lawsuits, the plaintiff generally does not know with any specificity the contents of the requested records, which the D.C. Circuit has declared can "seriously distort[] the traditional adversary nature of our legal system's form of dispute resolution." A Vaughn Index, which is akin to a privilege log, is a response to this informational asymmetry. The D.C. Circuit has held that a proper Vaughn Index "provide[s] a relatively detailed justification [for withholdings], specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Agencies can also justify nondisclosure decisions through the submission of affidavits of agency officials that, per the D.C. Circuit, "describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith."

FOIA also authorizes courts to review records in camera (i.e., privately and outside of the plaintiffs' view) to determine whether the records have been appropriately withheld. Courts often conduct in camera inspection of withheld information when an agency has not "provide[d] a sufficiently detailed explanation to enable the . . . court to make a de novo determination of the agency's claims of exemption." Courts retain discretion whether to conduct in camera review, but generally only do so in "exceptional" cases. In certain situations, courts may authorize agencies to submit in camera agency affidavits; however, as opposed to in camera inspection of withheld records, "use of in camera affidavits has generally been disfavored."

Reverse-FOIA Litigation

While requesters may seek judicial review of an agency's decision to withhold information under FOIA, in some circumstances parties may pursue judicial action to prevent an agency's disclosure of information in response to a FOIA request. These actions are often called reverse-FOIA lawsuits. An entity ordinarily institutes a reverse-FOIA action to prevent an agency from disclosing sensitive information, often concerning commercial or financial matters, that the entity had previously submitted to the agency. In Chrysler Corporation v. Brown , the Supreme Court held that neither the FOIA statute nor the TSA authorizes a private right of action to enjoin an agency from disclosing information in violation of the TSA. However, the Court held that judicial review of such actions is available under the APA. In reverse-FOIA suits, courts generally review an agency's decision to disclose information under Â§ 706(2)(A) of the APA, which provides that courts are to "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The burden of proof in a reverse-FOIA action is on the plaintiff.

Under Executive Order 12600, an agency is required, in certain circumstances, to provide notice to those who submitted "records containing confidential commercial information" if the agency has concluded that the records may need to be disclosed in response to a FOIA request. Agency procedures generally must allow applicable submitters to object to disclosure and provide that the agency, in the event it disagrees with the submitter's objection, supply the submitter with the reasons for its disagreement. The executive order defines "confidential commercial information" as information submitted to an agency "that arguably contain[s] material exempt from release under Exemption 4 . . . because disclosure could reasonably be expected to cause substantial competitive harm." Notably, the Supreme Court abrogated the "substantial competitive harm" test for Exemption 4 in FMI v. Argus Leader Media . In response, DOJ has advised agencies to use the broader definition of "confidential" declared in FMI in their predisclosure notification procedures.

Selected Issues of Potential Interest for Congress

While Congress is not subject to FOIA, the act raises questions of particular relevance to the legislative branch. For example, per the act, an agency may not "withhold information from Congress" on the basis that such information is exempt under FOIA. There are different views, however, about what "Congress" means in this instanceâin particular, whether this withholding prohibition applies to requests from individual Members of Congress, or whether the provision is limited to access requests from each house of Congress or congressional committees. In addition, although Congress is under no obligation to disclose its own materials under FOIA, whether a congressional document possessed by an agency is subject to FOIA depends on whether or not Congress clearly expressed its determination to retain control over the document.

Although this section only discusses the two topics just mentioned, FOIA implicates congressional interests in many other ways. For example, Congress has often expressed its interest in the frequency with which agencies use exemptions to withhold information from requesters, as well as the general backlog of FOIA requests. Further, FOIA evidences Congress's general interest in executive branch transparency, and Congress has amended FOIA several times since its 1965 enactment, often due or in response to judicial interpretations of the act or agencies' administration thereof.

Congressional Access to Agency Information: FOIA's "Special Access" Provision

FOIA's "special access" provisionâcodified at 5 U.S.C. Â§ 552(d)âstates that FOIA "is not authority to withhold information from Congress." The Senate report underlying the original act explained that this provision is intended to clarify "that, because [FOIA] only refers to the public's right to know, it cannot . . . be backhandedly construed as authorizing the withholding of information from the Congress, the collective representative of the public." While this provision undoubtedly prohibits agencies from withholding information from Congress based on a FOIA exemption, there is some dispute over whether subsection (d) affords individual Members of Congress access to otherwise exempt records under FOIA, or, on the other hand, whether the provision is limited to access requests from the broader arms of Congress (i.e., either house of Congress and congressional committees).

The Department of Justice has long maintained that the special access provision does not generally apply to records requests from individual Members of Congress, meaning that agencies generally can invoke relevant exemptions to withhold materials in response to individual Member requests. DOJ distinguishes between requests for information from (1) "a House of Congress as a whole (including through its committee structure)" and (2) individual Members. In DOJ's view, requests from the former benefit from subsection (d)'s withholding prohibition; however, requests from the latter generally do not, no matterâas DOJ has explainedâif the individual Member is "clearly acting in a completely official capacity" in making the request. Under DOJ's interpretation, a request by an individual Member in his or her official capacity is only covered by the special access provision if the request is from the chair of a committee or subcommittee or authorized by a committee or subcommittee. That said, individual Members of Congress can submit FOIA requests to the same extent as other persons.

But DOJ's interpretation of the special access provision has been criticized by some as too narrow. This criticism finds support in language from the D.C. Circuit's decision in Murphy v. Department of the Army , which interpreted the special access provision as applying to individual Members acting in their official capacities . The court held that the Army had not waived Exemption 5 protection for an internal agency memorandum by sharing it with an individual Member of Congress. The court based its holding on an interpretation of the special access provision, concluding that agencies will not waive the exemption in such circumstances "to the extent that Congress has reserved to itself in section 552([d]) the right to receive information not available to the general public." In responding to the requester's argument that the special access provision was limited to Congress as a whole (and not its component partsâincluding individual Members), the court wrote

All Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information. It would be an inappropriate intrusion into the legislative sphere for the courts to decide without congressional direction that, for example, only the chairman of a committee shall be regarded as the official voice of the Congress for purposes of receiving such information, as distinguished from its ranking minority member, other committee members, or other members of the Congress. Each of them participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.

Instead, the court opined that the special access rule applies when a Member's request is made in his or her officialâas opposed to "purely private or personal"âcapacity. Members of Congress from both major political parties have cited Murphy in support of individual Members' right to access information from the executive branch.

DOJ's more narrow interpretation, discussed above, was a reaction to Murphy 's reading of FOIA's application to Members, which it views as being inconsistent with the act's text and legislative history. DOJ has argued, for example, that interpreting "Congress" to include individual Members conflicts with Article I, Â§ 1 of the Constitution, which provides that Congress "consist[s] of a Senate and a House of Representatives," but does not mention the individuals who serve in those chambers. DOJ also asserts its position finds support in the 1966 House report for FOIA. In discussing the special access provision, the report states that "Members of Congress have all of the rights of access guaranteed to ' any person ' by [FOIA], and the Congress has additional rights of access to all Government information which it deems necessary to carry out its functions." DOJ has also maintained that the D.C. Circuit's discussion of FOIA's application to individual Members "was not indispensable to the [ Murphy ] decision" and therefore does not constitute a binding rule. But while the D.C. Circuit has not had opportunity to revisit Murphy on the question of FOIA's application to agency communications with individual Members, later appellate panel and lower court decisions within the circuit have appeared to treat Murphy 's interpretation as controlling.

Congressional Records

As discussed above, FOIA requires federal agencies to disclose "agency records" after receiving a valid request. But Congress is not an "agency" under FOIA. Congress, accordingly, is not obligated to respond to FOIA requests for documents in its possession. But Congress's exemption from FOIA extends beyond requests directed specifically at it. Crucially, the D.C. Circuit has held that a document that an agency obtains from Congress or creates in response to a congressional request qualifies as a congressional record exempt from FOIA if "Congress manifested a clear intent to control the document."

Congress is not required to provide "contemporaneous instructions when forwarding" documents to agencies to manifest its intent to control a document. In American Civil Liberties Union v. Central Intelligence Agency (CIA) , the D.C. Circuit determined that a confidential report authored by the Senate Select Committee on Intelligence was a congressional record and, therefore, not subject to FOIA. The case concerned the committee's evaluation of a CIA program on detention and interrogation. In 2014, the committee completed a final report based on its review. Although the committee did not publicly release the final report, it distributed copies to the President and other executive branch officials. In 2009, before beginning its review, the committee's chair and vice chair sent a letter to the CIA memorializing an agreement concerning the committee's examination of CIA documents at a secure electronic CIA reading room. The letter provided the following conditions:

Any documents generated on the network drive referenced in paragraph 5, as well as any other notes, documents, draft and final recommendations, reports or other materials generated by Committee staff or Members, are the property of the Committee and will be kept at the Reading Room solely for secure safekeeping and ease of reference. These documents remain congressional records in their entirety and disposition and control over these records, even after the completion of the Committee's review, lies exclusively with the Committee. As such, these records are not CIA records under [FOIA] or any other law . . . . If the CIA receives any request or demand for access to these records from outside the CIA under [FOIA] or any other authority, the CIA will immediately notify the Committee and will respond to the request or demand based upon the understanding that these are congressional, not CIA, records.

The D.C. Circuit reasoned that these conditions made "it plain that the Senate Committee intended to control any and all of its work product, including the [resulting 2014 final report], emanating from its oversight investigation of the CIA." The committee's subsequent transmission of the report to executive branch officials, with the instruction to the CIA and other agencies to use the report "as broadly as appropriate" both to ensure that the practices the report criticized were never repeated and to help in the development of CIA programs and executive branch guidelines, did not erase "the Senate Committee's clear intent to maintain control of the" final report.

Whether Congress's manifestation of intent to control extends to a particular record depends on the language used in Congress's directive to the agency. In United We Stand America v. Internal Revenue Service (IRS) , the D.C. Circuit held that a letter sent from the chief of staff of the Joint Committee on Taxation to the IRS requesting information in connection with a committee investigation did not fully protect the IRS's response. The request stated

This document is a Congressional record and is entrusted to the [IRS] for your use only. This document may not be disclosed without the prior approval of the Joint Committee.

The IRS transmitted documents in response to the committee's request (of which the agency retained a copy). In litigation arising from a FOIA request for the committee's request and the agency's response thereto, the court held that, although the language from the committee's request quoted aboveâwhich referred to "[t]his document"âconveyed a sufficient manifestation of intent to control the committee's request, that manifestation of intent did not extend to the IRS's response, save for "those portions of the IRS response that would effectively disclose th[e] [committee's] request." As the court explained, "[if] the Joint Committee intended to keep confidential not just 'this document' but also the IRS response, it could have done so by referring to 'this document and all IRS documents created in response to it.'" Accordingly, the court of appeals remanded the case to the district court to conclude whether information in the response that would reveal the committee's request could be redacted and to direct the agency to "release any segregable portions that are not otherwise protected by one of FOIA's nine exemptions."

The D.C. Circuit has articulated other principles helpful for determining whether Congress has manifested sufficient intent to control a particular record. For example, courts have found that "post-hoc objections" to disclosure raised by Congress "long after the . . . record[s'] creation" and "in response to the FOIA litigation" do not convey sufficient manifestations of intent to control. Nor are proper manifestations of intent contained in expressions that are "too general and sweeping." In Paisley v. CIA , for example, the court acknowledged that letters sent by the Senate Select Committee on Intelligence to the CIA "indicate[d] the Committee's desire to prevent release without its approval of any documents generated by the Committee or by an intelligence agency in response to a Committee inquiry." However, the court held that the letters did not alone manifest sufficient congressional intent to control the documents at issue because "there [was] no discussion of any particular documents or of any particular criteria by which to evaluate and limit the breadth of [the Committee's] interdiction."

Whether Congress has sufficiently manifested intent to control a document ultimately depends on the circumstances underlying each case. For example, in United We Stand (discussed above), the D.C. Circuit specifically underscored that the manifestation of intent to control at issue in that case was contained "in a letter written by the Joint Committee's chief of staff as part of an investigation authorized by the chairman, vice-chairman, and ranking members of the Joint Committee," as well as that an IRS document that the committee relied on "expressly recognize[d] the confidentiality of Joint Committee requests." On the other hand, in American Oversight, Inc. v. Department of Health & Human Services , the U.S. District Court for the District of Columbia did not explicitly emphasize the level of formality of the congressional manifestation of assent in reaching its decision that the materials at issue were not agency records subject to disclosure under FOIA. Instead, the court relied on its reading of language contained in email messages between staff of the House Committee on Ways and Means and executive branch personnel addressing "health care reform" to find that Congress had manifested its intent to retain control over the messages.

Related Open Government and Information Laws: FACA, the Sunshine Act, and the Privacy Act

FOIA is the primary statutory mechanism by which the public may gain access to federal government records and information. But other lawsâspecifically FACA, the Sunshine Act, and the Privacy Actâalso set forth rights and limitations on the public's access to government information or activities. FACA governs the establishment and operation of certain advisory committees created to supply advice and recommendations to federal agencies or the President. Among other things, the statute generally mandates the public availability of an advisory committee's "records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents," and members of the public are authorized under FACA to attend and participate in advisory committee meetings. The availability of an advisory committee's papers is subject to FOIA's exemptions.

Another general open government statute, the Sunshine Act, imposes transparency obligations on the meetings of certain multimember boards and commissions. The statute requires that covered agencies allow the public to attend their meetings and have access to relevant information. Meetings and information required to be disclosed under the act are subject to ten exemptions that resemble FOIA's.

Lastly, the Privacy Act governs the "collection, maintenance, use and dissemination" of agency records that contain individually identifiable information about U.S. citizens and lawful permanent residents. The act forbids the disclosure of covered records without the written consent or request of the individual identified by the record, subject to twelve exceptions. One Privacy Act exception covers records for which disclosure is "required" by FOIA. Under this exception, an agency record subject to the Privacy Act that is not protected by any of FOIA's exemptionsâand which therefore must be disclosed under FOIA upon requestâis not prohibited from being disclosed by the Privacy Act. The Privacy Act also permits individuals to request access to records that pertain to them and to seek the amendment of such records, subject to exemptions.