Understanding Exemptions is Key to a Healthy FOIA Program

Earlier this year, the U.S. Government Accountability Office (GAO) released a report, Update on Federal Agencies’ Use of Exemption Statutes. In the report, GAO identified FOIA requests that were partially or fully denied by U.S. federal agencies based on FOIA exemptions. Of the over 800,000 FOIA requests processed between 2012 and 2019, about 40 percent were at least partially denied, while just under four percent—or about 34,000—were fully denied.

In an interview with Federal News Network’s Tom Temlin, GAO Director of Strategic Issues Michelle Sager explains, “there are nine reasons [why records responsive to a FOIA request may be deleted] . . . one of those reasons is very specific . . . That’s the focus of this particular report.” Sager is referring to Exemption 3 or the (b)(3) exemption, which “allows the withholding of information prohibited from disclosure by another federal statute.” Therefore, if a requester asks for information that is protected by federal law, the processing agency can deny the request so long as the law or statute leaves “no discretion on the issue,” establishes “criteria for withholding,” or refers to “types of matters to be withheld.” Additionally, in order to qualify as a new Exemption 3 statute enacted after 2009, its language must expressly refer to Exemption 3.

Among the statutes that necessitated withholding under Exemption 3, the statute 8 U.S.C § 1202(f), “related to withholding records pertaining to the issuance or refusal of visas to enter the United States,” was most often referenced. This was followed by a statute related to tax return information, 26 U.S.C. § 6103. According to Sager, other statutes related to air transportation security, national security, and international affairs were among those most referenced for the use of Exemption 3. Most Exemption 3 statutes are utilized by just one or a few agencies.

But while Exemption 3 provides the most common basis for denying requests in full, all nine FOIA exemptions can come into play when redacting and withholding information in a document. The report found that overall, Exemption 3 accounted for just 7.4 percent of the total exemptions referenced in processed FOIA requests. Of the 970,000 uses of FOIA exemptions, various subparts of FOIA Exemption 7, or the prohibition of disclosure of records “compiled for law enforcement purposes,” accounted for more than half.

Sager notes that despite the widespread use of FOIA exemptions to withhold information and partially or fully deny requests, the goal of U.S. government agencies is to provide open information and access “by default.” The relatively low number of fully-denied requests is a reflection of a “broader push toward open government.” In the continual push for transparency, GAO provided the report to give the public “a sense of the many reasons why you may not be able to obtain government information,” by plainly explaining the statutes and their part in the FOIA request process.

Widespread knowledge of FOIA exemptions and how they work is not just useful for FOIA officers, but also for public requesters. Understanding why a request was fully or partially denied can help requesters determine their next course of action, whether it is to seek further information not protected by an exemption, abandon the FOIA request, or appeal the denial. With a greater public understanding of exemptions, the benefit for agencies is a reduction in superfluous or unnecessary FOIA appeals.

When processing FOIA requests, a more detailed knowledge of the exemptions is useful, especially in cases when the application of an exemption is open to interpretation and must be decided by the court. While increasingly more rare, questions can still arise for officers processing FOIA requests on whether to apply exemptions. AINS can provide the services to help U.S. government agencies understand FOIA exemptions and when best to apply them. We offer training on FOIA law at the request of our customers, and we provide the expert staff to help make decisions regarding FOIA exemptions.

In addition to training and consulting, AINS can provide a number of FOIA services to our customers including administrative tasks, processing, quality assurance, staffing, and more. To learn more about our full range of services please visit our website or email us at info@ains.com.