Duty to Release Non-Exempt Information

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

For example, in one case a requester sought letters sent from taxpayers to Congress about taxpayer related issues.2 The U.S. Court of Appeals for the District of Columbia Circuit ordered the IRS to disclose information that could reasonably be segregated from tax return information that should be withheld from release under a federal law.3 The court found that the IRS should have redacted information that identified taxpayers — such as names and addresses — and released the non-identifiable information.4

The duty to segregate also ensures that agencies are not allowed to issue “sweeping, generalized claims of exemption for documents.”5 Instead, agencies must describe which passages in a document have been withheld, and under which exemption.6 In addition, where an agency claims that it is unable to segregate documents, the agency must “describe what proportion of the information in a [withheld] document is non-exempt and how that material is dispersed throughout the document.”7

On appeal, you should remind the agency of its duty to segregate, especially if entire documents or large sections have been withheld without an explanation that meets this descriptive requirement.8

For example, you can argue that because materials are described as exempt in very broad terms, portions of it are likely to be segregable.9 You may also attempt to argue that based on an agency’s description of the exempt material, more information should have been released. The U.S. Court of Appeals for the District of Columbia Circuit has held that the use of the qualifying term “primarily” in describing what information was contained in a document an agency sought to withhold suggested that other portions of the withheld documents were likely to be releasable.10

However, special situations exist where an agency is not required to segregate. For instance, an agency generally may withhold entire documents “if exempt and nonexempt information are ‘inextricably intertwined,’ such that the excision of exempt information would impose significant costs on the agency and produce an edited document with little informational value.”11 For example, in a case where requesters sought factual portions of reports submitted to OSHA that were used in deciding a lead safety standard, the U.S. Court of Appeals for the Second Circuit found that the factual information in a report was “inextricably intertwined” with the agency’s deliberative process.12

The court held that “[d]isclosing factual segments from the . . . summaries would reveal the deliberative process of summarization itself by demonstrating which facts in the massive rule-making record were considered significant by the decisionmaker and those assisting her.”13 As a result, the court ruled that the factual information had properly been withheld under Exemption 5.14

In another case, a law firm sought information about an amino acid collected under a federal surveillance program. The requester sought the computer software used to analyze the data.15 The court held that this computer software, which was tailored to the specific data sets it was used to analyze, was “inextricably intertwined” with the deliberative process of agency scientists and properly withheld under Exemption 5.16

Despite a finding that requested information is “inextricably intertwined” with exempt information, you may still attempt to argue that the information is likely to be segregable using the arguments described above. In addition, where a small number of documents are concerned, you may argue that the agency has inappropriately raised the “inextricably intertwined” argument, because providing redacted information will not impose significant costs on the agency.

For instance, in a case where only 36 pages of responsive documents were withheld by the Bureau of Alcohol, Tobacco, and Firearms, the U.S. Court of Appeals for the First Circuit rejected the “inextricably intertwined” argument, because it found that in that situation, even “line-by-line analysis” did not appear unreasonable.17

Additional exceptions to the duty to segregate exist. The U.S. Court of Appeals for the District of Columbia has held that when an agency claims a document is non-disclosable under FOIA Exemption 5 under the attorney work product privilege, it is not required to segregate material within the document.18 As you may have difficulty asserting that an agency has not met its duty to segregate where this privilege is invoked, you should instead argue that some or all of the documents simply do not meet requirements of that particular exemption.19

Another exception to the duty to segregate exists under Exemption 1 regarding records related to national security. Courts may accept that unclassified information can be withheld entirely if releasable information, when assembled with other sensitive records, would warrant classification.20 The “compilation theory,” as it is known, essentially asks whether “information harmless in itself might be harmful when disclosed in context.”21 It may be difficult for you to appeal an agency’s failure to segregate where this theory is invoked as courts routinely give great deference to an agency in FOIA national security situations.22

1 5 U.S.C. § 552 (b).

2 Neufeld v. Internal Revenue Serv., 646 F.2d 661, 662-663 (D.C. Cir. 1981).

3 Id. at 665-666.

4 Id.

5 Mead Data Cent., Inc., v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)

6 Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992), abrogated on other grounds by Milner v. Dep’t of Navy, 131 S.Ct. 1259 (2011).

7 Mead Data Cent., Inc., 566 F.2d at 261.

8 See, e.g., Schiller, 964 F.2d at 1209-10.

9 Krikorian v. Dep’t of State, 984 F.2d 461, 467 (D.C. Cir. 1993).

10 Id.

11 Neufeld, 646 F.2d at 666.

12 Lead Indus. Ass’n, Inc., v. Occupational Safety & Health Admin., 610 F.2d 70, 83-5 (2d Cir. 1979).

13 Id.

14 Id.

15 Cleary, Gottlieb, Steen & Hamilton v. Dep’t of Health & Human Servs., 844 F. Supp. 770, 774-775 (D.D.C. 1993).

16 Id. at 782-83.

17 Wightman, Jr. v. Bureau of Alcohol, Tobacco & Firearms, 755 F.2d 979, 983 (D.C. Cir. 1985).

18 Judicial Watch, Inc. v. Dep’t of Justice, 432 F.3d 366, 369-71 (D.C. Cir. 2005).

19 See id. at 370.

20 Am. Friends Serv. Comm. v. Dep’t of Def., 831 F.2d 441, 445 (3d Cir. 1987).

21 Id.

22 See Halperin v. Nat’l Sec. Council, 452 F. Supp. 47, 52 (D.D.C. 1978); Armstrong v. Exec. Office of the Pres., 97 F.3d 575, 580 (D.C. Cir. 1996) (explaining that deference to an agency affidavit on segregability is especially warranted in the national security context).