FOIA/PA Overviews, Exemptions, and Terms
Overview of the Freedom of Information Act (FOIA)
The Freedom of Information Act is found in Title 5, United States Code (USC), §552.
- The law was enacted in 1966 and has been amended several times since.
- The Act creates a statutory right—enforceable in court—of access to federal agency records within the executive branch, allowing any person (see “Who May Make a Request” below) to seek information about an event, an organization, a company, a group, or another person either living or deceased.
- FOIA applies to records created by federal agencies and does not cover records held by Congress, the courts, or state and local government agencies. Each state has its own public access laws that should be consulted for access to state and local records.
- The main purpose of the law is to ensure an informed citizenry and provide a check against corruption by holding the government accountable (and the U. S. Supreme Court has emphasized that FOIA applies to official information shedding light on an agency’s performance of statutory duties).
- Records must be disclosed unless they are specifically excluded from the Act or unless they fall under one of the Act’s nine exemptions, which generally provide a means for non-disclosure and are usually discretionary, not mandatory.
Who May Make a Request Under the Law
“Any person” or any attorney or other representative on behalf of any person may make a FOIA request, as follows:
- “Any person” means any private individual, including a foreign citizen, partnership, corporation, association, state or state agency, or foreign government (except its intelligence agencies).
- “Any person” excludes a fugitive from justice or anyone acting on behalf of the fugitive—including a foreign government or international organization—whether or not this person is working directly or through a representative (including the FBI or another U.S. intelligence agency).
The Freedom of Information Act [5 USC 552], or FOIA, generally provides that any person has a right—enforceable in court—of access to federal agency records, except to the extent that such records (or portions thereof) are protected from disclosure by one of nine exemptions. When a portion of a record is withheld from public release, the subsection of the FOIA law describing that exemption or exemptions may be found listed in the margin next to the space where the withheld text would have been found. The list below describes the type of material withheld under each subsection of the FOIA.
(b)(1) (A) Specifically authorized under criteria by an executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified to such Executive Order #12958 (3/25/03).
(b)(2) Related solely to the internal personnel rules and practices of an agency.
(b)(3) Specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on issue or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
(b)(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential.
(b)(5) Inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.
(b)(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
(b)(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:
A. Could reasonably be expected to interfere with enforcement proceedings;
B. Would deprive a person of a right to a fair trial or an impartial adjudication;
C. Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
D. Could reasonably be expected to disclose the identity of confidential source, including a state, local, or foreign agency or authority or any private institution that furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
E. Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or;
F. Could reasonably be expected to endanger the life or physical safety or any individual.
(b)(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.
(b)(9) Geological and geophysical information and data, including maps concerning wells.
Overview of the Privacy Act (PA)
The Privacy Act of 1974 (Title 5, U.S. Code, Section 552) establishes a code of fair information practices that governs the collection, maintenance, use, and dissemination of personally identifiable information about individuals. The purpose of the law is to balance the government’s need to maintain information about individuals with the rights of individuals to be protected against unwarranted invasions of their privacy from the collection and disclosure of these records by federal agencies. Unlike the Freedom of Information Act, the Privacy Act is not a disclosure Act.
The Privacy Act allows individuals—a citizen of the U.S. or an alien lawfully admitted to the U.S. for permanent residence—to request records that are retrievable by name and/or personal identifiers. It also allows individuals to use a representative to make a request on their behalf and/or to request records on the behalf of a minor child or someone who is mentally incompetent if they are that person’s legal guardian or are acting in their best interest.
The focus of the Act is on four basic policy objectives:
- To restrict disclosures of personally identifiable records maintained by agencies;
- To grant individuals increased rights of access to agency records maintained on themselves;
- To grant individuals the right to see amendment of agency records maintained on themselves upon a showing that the records are not accurate, relevant, timely, or complete; and
- To establish a code of “fair information practices” that requires agencies to comply with statutory norms for collection, maintenance, and dissemination of records.
The Act applies only to federal agencies in the executive branch of the federal government (including the Executive Office of the President) such as the Department of Justice (DOJ) and as part of the DOJ, the FBI. Generally, the Act does not apply to state and local governments or to private companies, unless such entities are involved in a computer matching program with the federal government or are under contract to maintain an agency-approved system of records for an agency. A system of records is a group of records in the agency’s control from which information is retrieved by a unique identifier—such as a name, date of birth, home address, Social Security number, or some other identifying number or symbol. Only U. S. citizens and aliens lawfully admitted for permanent residence may request access to, copies of, or correction of their personal information being maintained by the federal government that is not timely, accurate, relevant, or complete. The Privacy Act requires that agencies give the public notice of their systems of records by publication in the Federal Register.
Records kept on individuals that are not retrieved by a unique identifier are not subject to the Act. The Act provides that agencies may not maintain information on individuals about how they exercise their First Amendment rights, unless maintenance of that information is specifically authorized by statute or relates to a law enforcement activity.
The Act requires each agency to maintain only such information about an individual that is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President and to collect information to the greatest extent practicable directly from the individual.
Privacy Act Exemptions
The Privacy Act (5 USC 552a) generally provides that any person has a right—enforceable in court—of access to federal agency records in which that person is a subject, except to the extent that such records (or portions thereof) are protected from disclosure by one of nine exemptions. When a portion of a record is withheld from public release, the subsection of the Privacy Act law describing that exemption or exemptions may be found listed in the margin next to the space where the withheld text would have been found. The list below describes the type of material withheld under each subsection of the Privacy Act. Exemptions
(d)(5) Information compiled in reasonable anticipation of a civil action proceeding.
(j)(2) Material reporting investigative efforts pertaining to the enforcement of criminal law, including efforts to prevent, control, or reduce crime or to apprehend criminals.
(k)(1) Information that is currently and properly classified pursuant to an executive order in the interest of the national defense or foreign policy—for example, information involving intelligence sources or methods.
(k)(2) Investigative material compiled for law enforcement purposes, other than criminal, which did not result in the loss of a right, benefit, or privilege under federal programs or which would identify a source who furnished information pursuant to a promise that his/her identity would be held in confidence.
(k)(3) Material maintained in connection with providing protective services to the U.S. President or any other individual pursuant to the authority of Title 18, U. S. Code, Section 3056.
(k)(4) Required by statute to be maintained and used solely as statistical records.
(k)(5) Investigative material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment or for access to classified information, the disclosure of which would reveal the identity of the person who furnished information pursuant to a promise that his/her identity would be held in confidence.
(k)(6) Testing or examination material used to determine individual qualifications for appointment or promotion in federal government service—the release of which would compromise the testing or examination process.
(k)(7) Material used to determine the potential for promotion in the armed services, the disclosure of which would reveal the identity of the person who furnished the material pursuant to a promise that his/her identity would be held in confidence.
Below is a list of terms used by the FBI in its Freedom of Information Act/Privacy Act program.
Agency Record: Documents created or obtained by an agency or under the control of an agency at the time a FOIA request is made
Appeal: A request to a federal agency asking that it review at a higher administrative level a full or partial denial of access to records under the FOI/PA or any other FOI/PA determination such as a matter pertaining to fees
Denial: An agency’s decision not to release any part of a record or records in response to a FOIA request because all the information in the requested records is determined by the agency to be exempt under one or more of the FOIA’s exemptions or for some procedural reason
Disclosure: The release of relevant information under FOIA/PA
DOJ: Department of Justice
Electronic FOIA Library: Records made available via the Internet for public viewing at no charge
Expedited Processing: An agency will process a FOIA request on an expedited basis when a requester has shown a compelling need or urgency for the records that warrants prioritization of his or her request over other earlier requests. The criteria and procedure for making such a request may be found in the U.S. Department of Justice FOIA Reference Guide.
Exemptions: Exemptions are categories of information created by Congress and the courts that are applied to documents for review and dissemination under FOIA/PA. These categories justify to the requester why information was withheld from the public. The FOI/PA generally provides that any person has a right of access to federal agency records, except to the extent that such records (or potions thereof) are protected from disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. There are three types of exemptions:
- FOIA Exemptions
- Privacy Exemptions
- Statutory Authority
Fee Waiver: The act of reducing or relinquishing payment for furnishing FOI/PA information. The criteria and procedure for making such a request may be found in the U.S. Department of Justice FOIA Resource Guide.
Field Office: There are 56 FBI field offices located across the country. The bulk of FBI investigative work is conducted in the FBI’s field offices. They are led by either a special agent in charge or an assistant director in charge who answers to the FBI Director. Field offices are not considered FBI Headquarters entities.
FOIA or FOIPA: Freedom of Information Act or Freedom of Information/Privacy Acts
FOIA Library: The FOIA Library makes available previously released, high-profile records that have been subject to a large volume requests. These records are available for public review at FBI Headquarters by appointment.
Full Denial: The refusal to release records that satisfy any part of a request
IMD: Information Management Division. The larger part of the FBI under which the RIDS operates. IMD is responsible for managing the life cycle of all FBI records.
In Camera: A document is in camera if it contains information that can only be viewed by a judge.
Interim Release: In responding to a large request, a partial release of pertinent records made to the user while the rest of the request is being processed
LAS: Legal Administrative Specialist. People who hold this position review FBI records for release under the provisions of the FOI/PA.
Not an Agency Record: The requested information was not a record within the meaning of the FOIA.
NR – No Record: The subject of the file is not the same as the subject in the request. This notation is sometimes found on search slips found in FBI files. It may also indicate that the Records Information Dissemination Section found no FBI records identical to the subject of a request.
OIP: Office of Information Policy, U.S. Department of Justice. This office oversees all the FOIA responses of all Department of Justice components.
Partial Denial: The FBI has withheld some records that are identical to a requester’s subject because they fall under the FOI/PA exemptions. Other parts of the same set of records, though, have been released.
Perfected Request: A FOIA request for records that adequately describes the records sought, which has been received by the FOIA office of the agency or agency component in possession of the records
Perfected Backlog Case: When the request folder has been completed and is ready to assign to the next available FOI/PA LAS for review of electronic documents for release
Privacy Act (PA): The Privacy Act of 1974 (PA), 5 USC 552a. This act protects personal information in Federal Executive Branch systems of records.
Redaction: The act of withholding information from requesters in accordance with the FOI/PA exemptions
Requester: Someone who requests information for public release
Response Portion: The part of a request folder containing the processed files that become the release package
Review: The process of examining documents located in response to a FOI/PA request to determine whether one or more of the statutory exemptions permit withholding
RIDS: Record/Information Dissemination Section. This is the part of the FBI that receives and processes FOI/PA requests.
Scoping: To review records that might fill a request and remove those portions that do not pertain to the request
Search: A search includes all of the time spent by FBI personnel looking, both manually and electronically, for requested material. Search also includes a page-by-page or line-by-line identification of material in the record to determine if it, or portion of it, are responsive to the request; this is also known as scoping.