Waiver and Prior Disclosure

On occasion, you may successfully argue that a document must be released despite a potential FOIA exemption because the information is already in the public domain. Under those circumstances, called the “waiver doctrine,” materials “normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record.”1

This doctrine does not appear in the text of the FOIA itself. Rather, a federal appellate court first recognized it under “the logic of FOIA,” which “mandates that where information requested ‘is truly public, then enforcement of an exemption cannot fulfill its purposes.’”2

1 Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999).

2 Id. (quoting Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999)).