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Asked and Answered — FOIA exemption waivers

Q: Can the government withhold information under a FOIA exemption if the same information has already been released? A: In…

Q: Can the government withhold information under a FOIA exemption if the same information has already been released?

A: In general, the federal government can withhold any information that falls within one of the nine exemptions to FOIA. However, there are certain situations in which even if an exemption could apply, the government must release the information pursuant to a FOIA request. This type of waiver arises when "the information has officially entered the public domain."

The key word there is officially. The government does not waive its exemption options under FOIA if information becomes public through an unauthorized leak or other illegal disclosure. An "authoritative government official" must have allowed the information to be made public.

In order for the government to have waived exemptions, the scope of the information sought must match the information publicly released. This means that the government doesn't waive its right to withhold material that gets into more specifics than publicly available information does.

Waiver comes up most often in the contexts of information that would fall into a confidential information category, including national security concerns, trade secrets, or documents detailing the deliberative process.

Finally, it is important to note that the requester has the burden of proving the government has waived its exemptions. Practically speaking, that means often the government will claim an exemption, and in the process of a FOIA appeal or lawsuit, the requester must demonstrate that the information had already been made public officially and that its prior release meets three criteria:

(1) That it is as specific as the information previously released;

(2) That it matches the information previously released; and

(3) That the previous disclosure was official and documented.