Freedom of Information

In challenging the adequacy of an agency search, it is not enough to bring “purely speculative claims about the existence and discoverability of other documents”⁸ For example, in a FOIA lawsuit where a requester sought images related to the May 2011 raid on Osama bin Laden’s Abottabad, Pakistan, compound, the requester argued that the Secretary of Defense was likely to possess responsive images in his office — and his office should therefore have been searched — because he had advised President Obama

When an agency claims it has found no responsive records, you have a right to challenge the adequacy of the search.¹ An agency “must show that it made a good faith effort to conduct a search . . .

The third exclusion applies to requests for “access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism” where “the existence of the records is classified information” under Exemption 1.³⁸ These terms are defined in Executive Order 12333 or in the Foreign Intelligence Surveillance Act as follows:

The second exclusion applies to “informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier” where such records “are requested by a third party according to the informant's name or personal identifier.”¹⁵

The first exclusion applies to requests for records that would properly fall under Exemption 7(A), and a) “the investigation or proceeding involves a possible violation of criminal law,” and b) “there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.”

In three narrow situations, law enforcement agencies may treat certain records as if they were not subject to FOIA, and in such cases, the agency “will respond to the request as if the excluded records did not exist.”¹ These three situations are generally referred to as “exclusions.”²

Under the federal FOIA, agencies cannot withhold non-exempt information found in a record merely because the record also contains exempt information. Agencies have a “duty to segregate” and provide releasable information. The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.”¹

The federal Copyright Act provides that “any work of the United States Government” cannot be copyrighted, so the government cannot withhold its own software on that basis, assuming it otherwise qualifies as an “agency record.”²⁵ FOIA does not specifically exempt copyrighted materials, and the Copyright Act does not qualify as an Exemption 3 statute.²⁶

After demonstrating that the software is an agency record, you should also be prepared to challenge arguments that exemptions to the FOIA apply to the software.

The exemption most likely to apply will be Exemption 4, which protects trade secrets and confidential commercial or financial information. (For more information, see section on Exemption 4).

In addition to demonstrating that the agency possessed and controlled the record at the time of your FOIA request, you must also explain how releasing it would “provide information about the government’s operation, structure, or decision-making processes.”¹⁶ As recognized in the DOJ’s report, “in the case of ‘electronic’ media, a record's format and ultimate compatibility with a particular data-proce