Exemptions

Type:

ESSAY

The federal Freedom of Information Act and every state open records law generally say that agency records are open for inspection and copying by the public. However, these rights are limited by several exemptions. At the federal level, there are nine exemptions to FOIA. The states have varying numbers of exemptions that tend to be relatively similar to the federal exemptions.

Exemptions are to be narrowly construed and there is a presumption toward openness. The narrow construction of the exemptions to FOIA was recently reiterated by the U.S. Supreme Court when it examined the scope of Exemption 2 in Milner v. Department of the Navy, finding that the exemptions were "explicitly made exclusive" and "must be 'narrowly construed.'" If you feel the document has been excessively redacted or wrongfully denied access to an entire document, you may appeal.

Exemption 1 is for national security documents classified by executive order.
Exemption 2 is for documents “related solely to the internal personnel rules and practices of an agency.” In March 2011, the U.S. Supreme Court in Milner overturned the nearly 30 year practice of recognizing a “High 2” interpretation that allowed agencies to withhold documents under this exemption that were predominantly internal and, the agency determined, their release would risk circumvention of the law. The Court held that there is only one interpretation of Exemption 2 and that is for purely internal, personnel documents.
Exemption 3 is for specific, statutorily created exemptions. There are more than 250 statutes that have been cited to withhold documents under Exemption 3.
Exemption 4 applies to trade secrets within documents that have been provided to agencies from corporations. Trade secrets are considered to be information that is commercially valuable and not generally known.
Exemption 5 is for documents considered "work product" or are "deliberative" in nature. These are records that are created during the decision-making process.
Exemption 6 allows the withholding of “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Personal privacy is for individuals only.
Exemption 7 applies to law enforcement records. Most focus recently has been in Exemption 7(C) which applies to records that would constitute an "unwarranted invasion of personal privacy." The U.S. Supreme Court held in March 2011 in Federal Communications Commission v. AT&T that Exemption 7(C) applies to individuals only and cannot be applied to corporations. Exemption 7(F), which is likely to get more attention in the wake of the Milner decision, allows the withholding of documents that “could reasonably be expected to endanger the life or physical safety of any individual.”
Exemption 8 applies to records about the regulation or supervision of financial institutions. Financial institutions are recognized to be banks, trust companies and investment firms and associations.
Exemption 9 prevents the disclosure of oil and gas well data, covering “geological and geophysical information and data, including maps, concerning wells.” This exemption is rarely used.

Under the federal law, just because an exemption applies to some information within a record does not mean that the entire document can be withheld. Only the information to which an exemption applies may be withheld. You are still entitled to the rest of the document, which should be provided with appropriate redactions.

Each state also has exemptions to the records law. Exemptions on a state level vary, but tend to cover similar subjects, including homeland security measures, adoption records, tax returns, voter registration, banking information, and domestic abuse reports. [Check out our State Open Government Guide to see what the law is in [your state] in regards to exemptions to the records law.]

Some commonly requested documents may be subject in whole or in part to exemptions. School records may be subject to privacy exemptions, therefore names and identifying information may be redacted. In particular, the Family Educational Rights and Privacy Act applies to education records and protects the privacy of students. Environmental and local land records may also be redacted under federal or state open records exemptions due to privacy or security concerns.

A big issue for journalists is getting access to the birthdates of public employees in order to verify a subject's identity. These records are often withheld due to privacy concerns. For example, the Supreme Court of Arizona upheld the decision to withhold the birthdates of public school teachers in Scottsdale Unified School Dist. No. 48 of Maricopa County v. KPNX Broadcasting because it held the teachers had an expectation of privacy in the information and there was only a minimal public interest in its disclosure.

Another example of commonly requested records that are not always released is mug shots. While commonly available to reporters on the state level, they are generally not released by federal authorities. In March, the U.S. Court of Appeals in Atlanta (11th Cir.) held that the privacy concerns for a federal inmate far outweighed the minimal public interest in disclosure in Karantsalis v. Department of Justice. The decision upholds the general practice of the U.S. Marshal Service. However, withholding mug shots is not uniform across the country, as the U.S. Court of Appeals in Cincinnati (6th Cir.) previously held in 1996 that mug shots are subject to disclsure under FOIA. Because of that decision, filing a records request for a mug shot from within the Sixth Circuit will result in disclosure, anywhere else the request will be denied.

Recent news articles from our website:

May 11, 2011 Justice Department issues guidance on FOIA Exemption 2

April 28, 2011 Demise of FOIA “High 2” exemption debated

April 19, 2011 Advisory committee recommendations can be withheld

April 15, 2011 Pa. State Police must release moonlighting records

April 11, 2011 Illinois bill would exempt gun permit records from FOIA

March 29, 2011 Army will release records in court-martial transcript case

March 22, 2011 Bailout records not yet disclosed despite high court denial

March 14, 2011 Federal appeals court holds mugshots exempt from FOIA

March 10, 2011 SEC OKs requests for contractor porn-viewing data

March 7, 2011 U.S. Supreme Court rejects FOIA “High 2” exemption

March 1, 2011 U.S. Supreme Court: Corporations have no personal privacy