Arguing for Discretionary Disclosure

While the federal Freedom of Information Act contains nine exemptions that allow agencies to withhold records from the public, the government is often not required to withhold a record simply because it has a legal basis to do so under an exemption. As the U.S. Supreme Court has noted, “Congress did not design the FOIA exemptions to be mandatory bars to disclosure.”1 “[I]nformation exempted by FOIA from mandatory disclosure may nevertheless remain open to discretionary revelation by an agency.”2

In addition to making a case that the record you seek is not properly covered by an exemption, you can always add a fallback argument to an appeal letter that the agency has a ripe opportunity to make a discretionary records release regardless of whether it can withhold. In situations where the government rightfully asserts that an exemption applies to a requested record, arguing for a discretionary release may be the only option.

As discussed in the following sections, certain exemptions are better suited for consideration for discretionary release than others. In fact, in some circumstances, an agency is legally required to withhold a record and cannot exercise discretion.

1 Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979).

2 Nat’l Org. for Women, Wash., D.C. Chapter v. Soc. Sec. Admin of Dep’t of Health & Human Servs., 736 F.2d 727, 732 (D.C. Cir. 1984).