Exemption 9

Under Exemption 9, an agency may withhold from disclosure “geological and geophysical information and data, including maps, concerning wells.”1 According to its legislative history, the exemption was enacted to address concerns that geological maps generated during private oil companies’ explorations were not covered by Exemption 4, and that their release would give speculators an advantage over the companies that paid for the exploration.2

The least invoked of the FOIA exemptions (and consequently the exemption that has been interpreted the least by federal courts), Exemption 9 often overlaps with Exemption 4, which protects from disclosure trade secrets and confidential, commercial and financial information. [See chapter on Exemption 4]. Consequently, parties opposing release of information under Exemption 9 often also invoke Exemption 4 with respect to the same information.3

In opposing an Exemption 9 withholding, you may argue that the information at issue does not fall within the scope of the exemption. One of the few courts interpreting the exemption has held that it applies only to “information of a technical or scientific nature” that relates to “scientific or exploratory findings concerning well drillings.”4 The court held that the exemption did not apply to “the number, locations, and depths of . . . proposed exploration drill-holes” for uranium, stating — without much elaboration — that such “information falls short of the technical and scientific information envisioned by Congress.”5Similarly, if possible, you should argue that the records you seek are not of a “technical” or “scientific” nature.

In contrast, a court upheld the Environmental Protection Agency’s withholding of maps that showed the locations of water wells, holding that Exemption 9 applied to information about both privately- and publicly-owned wells.6 Another court held that information about “ground water inventories, well yield in gallons per minute, and the thickness of the decomposed granite aquifer” contained in a draft environmental assessment was “the type of well water related information” that could be withheld under Exemption 9.7

1 5 U.S.C. § 552(b)(9).

2 H.R. REP. NO. 89-1497, at 11 (1966).

3 See, e.g., Pennzoil Co. v. Fed. Power Comm’n, 534 F.2d 627, 629-30 (5th Cir. 1976);Black Hills Alliance v. U.S. Forest Serv., 603 F.Supp. 117, 119 (D.S.D. 1984); Starkey v. U.S. Dep’t of Interior, 238 F.Supp.2d 1188, 1194-96 (S.D. Cal. 2002).

4 Black Hills Alliance, 603 F.Supp. at 122.

5 Id.

6 Nat’l Res. Def. Council v. U.S. Dep’t of Def., 388 F.Supp.2d 1086, 1107-08 (C.D. Cal. 2005).

7 Starkey, 238 F.Supp.2d at 1196.