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
The Department of Justice has interpreted the exclusions to mean that “a requester can properly be advised in such a situation that ‘there exist no records responsive to your FOIA request.’”3 This is different from a “Glomar” response, where an agency will state that it cannot confirm or deny the existence of records responsive to your FOIA request.
An agency invoking an exclusion will not reveal the fact it is relying on an exclusion in its response to a FOIA request, so unless you know or have reason to believe otherwise, it will not necessarily be clear that the agency has relied on an exclusion. However, you can appeal an agency’s “no records” response on the basis that it is an “adverse determination,”4 and provide arguments in your appeal letter contesting any exclusions you suspect the agency may have inappropriately applied. (In such a letter, you should also challenge whether the agency has adequately searched for the records).
The possible application of an exclusion can be appealed both administratively and in court. U.S. Attorney General memorandum instructs that “agencies should be prepared to handle administrative appeals and even court challenges which seek review of thepossibility that an exclusion was employed in a given case,” as such challenges are “legitimate.”5
1 Memphis Pub’g Co. v. Fed. Bureau of Investigation, No. 10-1878 (ABJ), 2012 WL 269900 at *5 (D.D.C. Jan. 31, 2012) (quoting Tanks v. Huff, No. Civ. A. 95-568 (GK), 1996 WL 293531 at *5 (D.D.C. May 28, 1996) (internal quotation marks omitted)).
2 5 U.S.C. § 552(c).
3 U.S. Dep’t of Justice, Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act (1987).
5 Attorney General’s Memorandum, supra (emphasis in original).