The Freedom of Information Act (FOIA): A Legal Overview

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The Freedom of Information Act (FOIA): A
Legal Overview
~~August 24, 2020~~
~~Daniel J. Sheffner~~June 27, 2024 Benjamin M. Barczewski
Originally enacted in 1966, the Freedom of Information Act (FOIA) establishes a three-part Originally enacted in 1966, the Freedom of Information Act (FOIA) establishes a three-part
Legislative Attorney Legislative Attorney
system that requires federal agencies to disclose a large swath of government information to the system that requires federal agencies to disclose a large swath of government information to the

public. First, FOIA directs agencies to publish substantive and procedural rules, along with public. First, FOIA directs agencies to publish substantive and procedural rules, along with
certain other important government materials, in the Federal Register. Second, on a proactive certain other important government materials, in the Federal Register. Second, on a proactive

basis, agencies must electronically disclose a separate set of information that consists of, among basis, agencies must electronically disclose a separate set of information that consists of, among
other things, final adjudicative opinions and certain “frequently requested” records. other things, final adjudicative opinions and certain “frequently requested” records. ~~And lastly~~Lastly, FOIA requires agencies to , FOIA requires agencies to
disclose all covered records not made available pursuant to the aforementioned affirmative disclosure provisions to disclose all covered records not made available pursuant to the aforementioned affirmative disclosure provisions to
individuals, corporations, and others upon request. individuals, corporations, and others upon request.
~~While FOIA’s main purpose is to inform the public of the operations of the federal government, the act’s drafters also sought~~
~~to protect certain private and governmental interests from the law’s disclosure obligations. FOIA, therefore,~~FOIA contains nine contains nine
enumerated exemptions from disclosure that permit—but enumerated exemptions from disclosure that permit—but ~~they~~ do not require—agencies to withhold do not require—agencies to withhold ~~a range of~~ certain information, information,
including including ~~certain~~ classified national security matters, confidential financial information, law enforcement records, and a classified national security matters, confidential financial information, law enforcement records, and a
variety of materials and types of information exempted by other statutes. variety of materials and types of information exempted by other statutes. ~~And FOIA~~FOIA also contains three “exclusions” that contains three “exclusions” that
authorize agencies to treat certain law enforcement records as if they do not fall within FOIA’s coverage. authorize agencies to treat certain law enforcement records as if they do not fall within FOIA’s coverage.
Although FOIA’s main purpose is to inform the public of the operations of the federal government, the act’s drafters also sought to protect certain private and governmental interests from the law’s disclosure obligations through FOIA’s exemptions and exclusions. FOIA ~~FOIA also~~ authorizes requesters to seek judicial review of an agency’s decision to withhold records. Federal district courts authorizes requesters to seek judicial review of an agency’s decision to withhold records. Federal district courts
may “enjoin [an] agency from withholding agency records” and “order the production of any agency records improperly may “enjoin [an] agency from withholding agency records” and “order the production of any agency records improperly
withheld.” Judicial decisions—including Supreme Court decisions—have often informed or provided the impetus for withheld.” Judicial decisions—including Supreme Court decisions—have often informed or provided the impetus for
congressional amendments to FOIA. congressional amendments to FOIA.
~~Although Congress is not subject to FOIA, the act may inform~~Congress is not subject to FOIA because it is not a covered “agency” as defined by FOIA. As a result, records that are deemed to be “congressional records,” even if held by executive branch agencies, are not subject to FOIA in certain circumstances. Nonetheless, the act addresses communications between the legislative branch and FOIA- communications between the legislative branch and FOIA-
covered entities. Under 5 U.S.C. § 552(d), an agency may not “withhold information from Congress” on the basis that such covered entities. Under 5 U.S.C. § 552(d), an agency may not “withhold information from Congress” on the basis that such
information is covered by a FOIA exemption (although the provision does not dictate whether another source of law, such as information is covered by a FOIA exemption (although the provision does not dictate whether another source of law, such as
executive privilege, may shield information from disclosure). The executive branch has interpreted this provision to apply to executive privilege, may shield information from disclosure). The executive branch has interpreted this provision to apply to
each house of Congress and congressional committeeseach house of Congress and congressional committees, but generally not to individual Members but generally not to individual Members~~, whose~~. Individual Members’ requests for requests for
information are generally treated as subject to the same FOIA rules as requests from the public. This interpretation is not information are generally treated as subject to the same FOIA rules as requests from the public. This interpretation is not
uniformly shared, with at least one federal appellate court interpreting uniformly shared, with at least one federal appellate court interpreting §Section 552(d) as applying to individual Members acting in 552(d) as applying to individual Members acting in
their official capacities. In addition, although Congress is under no obligation to disclose its materials pursuant to FOIA, their official capacities. In addition, although Congress is under no obligation to disclose its materials pursuant to FOIA,
whether a congressional document possessed by an whether a congressional document possessed by an agency is subject to FOIA depends on whether Congress clearly is subject to FOIA depends on whether Congress clearly
expressed its intention to retain control over the specific document. expressed its intention to retain control over the specific document.
~~Lastly, although FOIA is the primary statutory mechanism by which the public may gain access to federal government~~
~~records and information, other laws—specifically the Federal Advisory Committee Act, Government in the Sunshine Act,~~
~~and Privacy Act—also set forth rights and limitations on the public’s access to government information or activities.~~

~~Congressional Research Service~~

The Freedom of Information Act (FOIA): A Legal Overview

he Freedom of Information Act (FOIA)1 confers on the public a right to access federal he Freedom of Information Act (FOIA)1 confers on the public a right to access federal
agency information.2 agency information.2 FOIA’s tripartite system of disclosure aims to open up a vast array of T federal agency information and records to private individuals, researchers, journalists, corporations, and other parties. In addition, disclosure under FOIA may bring information to Congress’s attention that may inform its oversight of FOIA-covered agencies.3 As one court has remarked, “FOIA is the legislative embodiment of Justice Brandeis’s famous adage, ‘Sunlight is ... the best of disinfectants.’”4 Although FOIA’s main purpose is to inform the public of the operations of the federal government,5 the act’s drafters sought to protect certain private and governmental interests from the new law’s disclosure obligations.6 FOIA thus contains nine exemptions from disclosure that authorize, but do not require, agencies to withhold information or records that are otherwise subject to release or availability under the statute.7 Along with its nine exemptions, FOIA contains three records “exclusions” that cover certain “especially sensitive law enforcement records.”8 If records are protected by an exclusion, an agency may “treat the records as not subject to the requirements of” FOIA.9 Before FOIA’s enactment, the Administrative Procedure Act (APA)10~~Before FOIA’s enactment, the Administrative Procedure Act (APA)3~~
T had required agencies to make certain government information available to the public. had required agencies to make certain government information available to the public. ~~But~~
The exceptions in the APA were broad. As a result, the exceptions to disclosure in the APA’s public information section had, in the estimation of the exceptions to disclosure in the APA’s public information section had, in the estimation of
FOIA’s drafters, “become the major statutory excuse for withholding Government records from FOIA’s drafters, “become the major statutory excuse for withholding Government records from
public view.”public view.”~~4 The exceptions were broad.~~11 For example, agencies could withhold information if For example, agencies could withhold information if
doing so was “in the public interest”doing so was “in the public interest”512 or—for “matters of official record”—when information was or—for “matters of official record”—when information was
“held confidential for good cause found.”“held confidential for good cause found.”613 In addition, the APA’s public information section In addition, the APA’s public information section
~~lacked a provision authorizing a person to seek judicial review of an agency’s decision to~~
~~withhold information.7~~
~~To rectify the APA’s perceived failure to provide the public with adequate access to government~~
~~information, Congress enacted FOIA in 1966 as an amendment to the APA. In FOIA, Congress~~
~~sought to establish a statutory scheme that embodied “a broad philosophy of ‘freedom of~~
~~information’” and ensured “the availability of Government information necessary to an informed~~
~~electorate.”8 To effectuate Congress’s desire for robust public access to agency information, FOIA~~
~~establishes a three-part system of disclosure by which agencies must disclose a large swath of~~
~~records and information.9 First, FOIA directs agencies to publish “substantive rules of general~~
~~applicability,” procedural rules, and specified other important government materials in the~~
~~Federal Register.10 Second, on a proactive basis, agencies must electronically disclose a separate~~
~~set of agency information including, among other things, final adjudicative opinions and certain~~
~~“frequently requested” records.11 And third, FOIA’s request-driven system of disclosure requires~~
~~that, “[e]xcept with respect to the records made available under” the statute’s proactive disclosure~~
~~provisions, agencies disclose covered records to individuals, corporations, and others upon~~
~~request.12~~
~~FOIA’s tripartite system of disclosure aims to open up a vast array of federal agency information~~
~~and records to private individuals, researchers, journalists, corporations, and other parties. In~~
~~addition, disclosure under FOIA may bring information to Congress’s attention that may inform~~
~~its oversight of FOIA-covered agencies.13 As one court has remarked, “FOIA is the legislative~~

~~1 5 U.S.C. § 552.~~
~~2 See Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982) (“[FOIA] was enacted by Congress . . . in order to provide a~~
~~statutory right of public access to documents and records held by agencies of the federal government.”).~~
~~3 5 U.S.C. §§ 551-59, 701-06.~~
4lacked a 1 5 U.S.C. § 552. 2 See Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982) (“[FOIA] was enacted by Congress ... in order to provide a statutory right of public access to documents and records held by agencies of the federal government.”). 3 See, e.g., Letter to Donald J. Trump, President, from Representative Don Beyer, et al., at 2 (Apr. 6, 2018), https://beyer.house.gov/uploadedfiles/signed_fire_pruitt_letter_4.6.18.pdf (describing information revealed by a FOIA request about the activities of an Environmental Protection Agency (EPA) task force in letter urging the President to request the EPA Administrator’s resignation). 4 N.H. Right to Life v. HHS, 778 F.3d 43, 48–49 (1st Cir. 2015) (alteration in original) (quoting LOUIS D. BRANDEIS, OTHER PEOPLE’S MONEY AND HOW THE BANKERS USE IT 92 (Frederick A. Stokes Co. ed. 1914)). 5 DOD v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994) (explaining that “the ‘core purpose of FOIA’ ... is ‘contributing significantly to public understanding of the operations or activities of the government’” (emphasis omitted) (quoting DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 777 (1989)). 6 S. REP. NO. 813, at 3 (1965); FBI v. Abramson, 456 U.S. 615, 621 (1982). 7 5 U.S.C. § 552(b)(1)–(9). 8 Id. § 552(c); Edwin Meese III, Att’y Gen., Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act 2 (Dec. 1987) [hereinafter Meese Memorandum], https://www.justice.gov/archive/oip/86agmemo.htm. 9 5 U.S.C. § 552(c)(1)–(3). 10 Id. §§ 551–559, 701–706. 11 H.R. REP. NO. 1497, at 3 (1966); H.R. REP. NO. 1497, at 3 (1966); see also S. REP. NO. 813, at 5 (1965) (explaining that the APA’s public information S. REP. NO. 813, at 5 (1965) (explaining that the APA’s public information
section allowed agencies to “withhold almost anything from any citizen under [its] vague standards”). section allowed agencies to “withhold almost anything from any citizen under [its] vague standards”).
512 5 U.S.C. § 1002 (amended by 5 U.S.C. § 1002 (amended by Administrative Procedure Act Amendments of 1966, Pub. L. No. 89-487, 80 Stat. 150 (1966)). Pub. L. No. 89-487, 80 Stat. 150 (1966)).
6 13 Id. § 1002(c); § 1002(c); see also, e.g., , id. (limiting the availability of matters of official record “to persons properly and directly (limiting the availability of matters of official record “to persons properly and directly
concerned”). concerned”). See H.R. REP. NO. 1497, at 5 H.R. REP. NO. 1497, at 5-–6 (1966) (discussing agencies’ abuse of the APA’s public information 6 (1966) (discussing agencies’ abuse of the APA’s public information
section). section).
~~7 S. REP. NO. 813, at 5 (1965).~~
~~8 Id. at 3; H.R. REP. NO. 1497, at 12 (1966).~~
~~9 See Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979).~~
~~10 5 U.S.C. § 552(a)(1); id. § 552(a)(1)(C), (D).~~
~~11 Id. § 552(a)(2); id. § 552(a)(2)(A), (D).~~
~~12 Id. § 552(a)(3); see id. § 552(a)(4)(B) (providing that federal district courts have “jurisdiction to enjoin [agencies]~~
~~from withholding agency records and to order the production of any agency records improperly withheld”).~~
~~13 See, e.g., Letter to Donald J. Trump, President, from Representative Don Beyer, et al., at 2 (Apr. 6, 2018),~~
~~https://beyer.house.gov/news/documentsingle.aspx?DocumentID=815 (describing information revealed by a FOIA~~
~~request about the activities of an Environmental Protection Agency (EPA) task force in letter urging the President to~~
~~Congressional Research Service~~
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~~link to page 6~~ ~~The Freedom of Information Act (FOIA): A Legal Overview~~

~~embodiment of Justice Brandeis’s famous adage” that “[s]unlight is . . . the best of~~
~~disinfectants.”14~~
~~While FOIA’s main purpose is to inform the public of the operations of the federal government,15~~
~~the act’s drafters sought to protect certain private and governmental interests from the new law’s~~
~~disclosure obligations.16 FOIA thus contains nine exemptions from disclosure that authorize, but~~
~~do not require, agencies to withhold information or records that are otherwise subject to release or~~
~~availability under the statute.17 Most of FOIA’s nine enumerated exemptions are designed to~~
~~protect against fairly general harms that may arise from disclosure,18 while others concern very~~
~~specific types of information,19 and one incorporates numerous exemptions contained in other~~
~~federal statutes.20And along with its nine exemptions, FOIA contains three records “exclusions”~~
~~that cover certain “especially sensitive law enforcement records.”21 If records protected by an~~
~~exclusion are subject to a FOIA request, an agency may “treat the records as not subject to the~~
~~requirements of” FOIA.22~~
~~Lastly, the statute authorizes requesters to challenge in federal court an agency’s decision to~~
~~withhold requested records.23~~Congressional Research Service 1 link to page 7 link to page 14 link to page 22 link to page 48 link to page 50 link to page 55 The Freedom of Information Act (FOIA): A Legal Overview provision authorizing a person to seek judicial review of an agency’s decision to withhold information.14 To rectify the APA’s perceived failure to provide the public with adequate access to government information, Congress enacted FOIA in 1966 as an amendment to the APA. In FOIA, Congress sought to establish a statutory scheme that embodied “a broad philosophy of ‘freedom of information’” and ensured “the availability of Government information necessary to an informed electorate.”15 To effectuate Congress’s desire for robust public access to agency information, FOIA establishes a three-part system of disclosure by which agencies must disclose a large swath of records and information.16 First, FOIA directs agencies to publish “substantive rules of general applicability,” procedural rules, and specified other important government materials in the Federal Register.17 Second, on a proactive basis, agencies must electronically disclose a separate set of agency information including, among other things, final adjudicative opinions and certain “frequently requested” records.18 Third, “[e]xcept with respect to the records made available under” the statute’s proactive disclosure provisions, FOIA requires that agencies disclose covered records to individuals, corporations, and others upon request.19 Lastly, the statute authorizes requesters to challenge in federal court an agency’s decision to withhold requested records.20 Federal district courts may “enjoin [an] agency from Federal district courts may “enjoin [an] agency from
withholding agency records” and “order the production of any agency records improperly withholding agency records” and “order the production of any agency records improperly
withheld.”withheld.”2421
This report provides an overview of FOIA. This report provides an overview of FOIA.2522 First, the report examines key terms that dictate the First, the report examines key terms that dictate the
scope of agencies’ disclosure obligations under FOIA.scope of agencies’ disclosure obligations under FOIA.2623 The report then provides an overview of FOIA’s three disclosure requirements.24 Following that discussion, the report reviews each of FOIA’s nine exemptions25 and its three records exclusions.26 After an overview of selected issues concerning judicial review of agency decisions to withhold information under FOIA,27 this report discusses two topics of potential interest to Congress: FOIA’s “special access” provision—which provides that FOIA does not authorize agencies “to withhold information from Congress”28—and the status of congressional records under FOIA.29 Lastly, this report discusses three other laws 14 S. REP. NO. 813, at 5 (1965). 15 Id. at 3; H.R. REP. NO. 1497, at 12 (1966). 16 See Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979). 17 5 U.S.C. § 552(a)(1). 18 Id. § 552(a)(2). 19 Id. § 552(a)(3), (a)(4)(B) (providing that federal district courts have “jurisdiction to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld”). 20 Id. § 552(a)(4)(B). 21 Id. 22 ~~The report then provides an overview of~~

~~request the EPA Administrator’s resignation).~~
~~14 N.H. Right to Life v. HHS, 778 F.3d 43, 48-49 (1st Cir. 2015) (internal quotation marks omitted) (alteration in~~
~~original) (quoting LOUIS D. BRANDEIS, OTHER PEOPLE’S MONEY AND HOW THE BANKERS USE IT 92 (Frederick A. Stokes~~
~~Co. ed. 1914)).~~
~~15 DOD v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994) (explaining that “the core purpose of FOIA . . . is~~
~~contributing significantly to public understanding of the operations or activities of the government” (emphasis and~~
~~internal quotation marks omitted) (quoting DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 777~~
~~(1989))).~~
~~16 S. REP. NO. 813, at 3 (1965); FBI v. Abramson, 456 U.S. 615, 621 (1982).~~
~~17 5 U.S.C. § 552(b)(1)-(9).~~
~~18 See, e.g., id. § 552(b)(1) (appropriately classified national security matters); (b)(4) (trade secrets or certain~~
~~commercial or financial information submitted to the government by a third party); (b)(7) (certain law enforcement~~
~~records).~~
~~19 See id. § 552(b)(8) (certain financial institution reports), (b)(9) (geological and geophysical information concerning~~
~~wells).~~
~~20 Id. § 552(b)(3).~~
~~21 Id. § 552(c); Edwin Meese III, Attorney General’s Memorandum on the 1986 Amendments to the Freedom of~~
~~Information Act, at 2 (Dec. 1987) [hereinafter Meese Memorandum],~~
~~https://www.justice.gov/archive/oip/86agmemo.htm.~~
~~22 5 U.S.C. § 552(c)(1)-(3).~~
~~23 Id. § 552(a)(4)(B).~~
~~24 Id.~~
25 This report is not intended to provide an exhaustive account of all topics related to FOIA. Sources that analyze FOIA This report is not intended to provide an exhaustive account of all topics related to FOIA. Sources that analyze FOIA
in greater detail include JAMES T. O’REILLY, FEDERAL INFORMATION DISCLOSURE (2019 ed.) and DOJ, OFFICE OF INFO. in greater detail include JAMES T. O’REILLY, FEDERAL INFORMATION DISCLOSURE (2019 ed.) and DOJ, OFFICE OF INFO.
POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT (last updated Aug. 4, 2020POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT (last updated Aug. 4, 2020.), https://www.justice.gov/oip/doj-), https://www.justice.gov/oip/doj-
guide-freedom-information-act-0.guide-freedom-information-act-0. ~~An examination of agencies’ administration of FOIA can be found in CRS Report~~
~~R41933, The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues, by Meghan M. Stuessy.~~
~~26 See infra “Key Terms.”~~ 23 See infra Key Terms. 24 See infra Access to Government Information Under FOIA. 25 See infra Exemptions. 26 See infra Exclusions. 27 See infra FOIA-Related Litigation: Selected Issues. 28 5 U.S.C. § 552(d). 29 See infra Selected Issues of Potential Interest for Congress.
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link to page link to page ~~14 link to page 21 link to page 45 link to page 47 link to page 52 link to page 58~~63 link to page link to page 5863 The Freedom of Information Act (FOIA): A Legal Overview ~~The Freedom of Information Act (FOIA): A Legal Overview~~

~~FOIA’s three disclosure requirements.27 Following that discussion, the report reviews each of~~
~~FOIA’s nine exemptions28 and, in a later section, its three records exclusions.29 After an overview~~
~~of selected issues concerning judicial review of agency decisions to withhold information under~~
~~FOIA,30 this report discusses two topics of potential interest to Congress: FOIA’s “special access”~~
~~provision—which provides that FOIA does not authorize agencies “to withhold information from~~
~~Congress”31—and the status of congressional records under FOIA.32 Lastly, this report discusses~~
~~three other laws~~ that, like FOIA, govern the availability of specific types of government that, like FOIA, govern the availability of specific types of government
information and constitute significant elements of the federal government’s open government and information and constitute significant elements of the federal government’s open government and
information legal regimes: the Federal Advisory Committee Act (FACA)information legal regimes: the Federal Advisory Committee Act (FACA)~~;33~~,30 the Government in the Government in the
Sunshine Act (Sunshine Act)Sunshine Act (Sunshine Act)~~;34~~,31 and and the Privacy ActPrivacy Act~~.35~~ of 1974.32
Key Terms
FOIA generally requires each federal “agency” to make “agency records” available to the public FOIA generally requires each federal “agency” to make “agency records” available to the public
and specifically to “any person” who requests them.and specifically to “any person” who requests them.3633 FOIA does not, however, require FOIA does not, however, require every
federal entity to disclose government information to the public, nor must a covered entity disclose federal entity to disclose government information to the public, nor must a covered entity disclose
every piece of information it possesses. piece of information it possesses. ~~And not~~Not all persons have a right to receive records under all persons have a right to receive records under
the act. Three key statutory terms inform FOIA’s general scope: (1) “agencythe act. Three key statutory terms inform FOIA’s general scope: (1) “agency~~”;37~~,”34 (2) “agency (2) “agency
recordsrecords~~”;38~~,”35 and (3) “any person.” and (3) “any person.”3936 The meaning of each of these terms determines which entities The meaning of each of these terms determines which entities
must comply with FOIA, what materials must be disclosed under the act, and to whom FOIA must comply with FOIA, what materials must be disclosed under the act, and to whom FOIA
grants the right to request and receive records. grants the right to request and receive records.
“Agency”
~~FOIA requires “agencies” to disclose a broad array of information to the public. The~~Only an “agency” as defined by FOIA is subject to FOIA’s requirements. FOIA adopts wholesale the APA’s APA’s
general definition general definition ~~section in 5 U.S.C. § 551~~of “agency.” The APA defines “agency” as “each authority of the defines “agency” as “each authority of the
Government of the United States, whether or not it is within or subject to review by another Government of the United States, whether or not it is within or subject to review by another
agency.”agency.”~~40 FOIA embraces this general definition and provides~~37 FOIA further specifies that, for the act’s purposes, the that, for the act’s purposes, the
term “includes any executive department, military department, Government corporation, term “includes any executive department, military department, Government corporation,
Government controlled corporation, or Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.”38 While this definition includes a large swath of the federal government, it does not encompass the entire federal establishment. For 30 Federal Advisory Committee Act (FACA), Pub. L. No. 92-463, 86 Stat. 770 (1972); 5 U.S.C. §§ 1001–1014. 31 Government in the Sunshine Act (Sunshine Act), Pub. L. No. 94-409, 90 Stat. 1241 (1976); 5 U.S.C. § 552b. 32 Privacy Act, Pub. L. No. 93-579, 88 Stat. 1896 (1974); 5 U.S.C.~~other establishment in the executive branch of the~~

~~27 See infra “Access to Government Information Under FOIA.”~~
~~28 See infra “Exemptions.”~~
~~29 See infra “Exclusions.”~~
~~30 See infra “FOIA-Related Litigation: Selected Issues.”~~
~~31 5 U.S.C. § 552(d).~~
~~32 See infra “Selected Issues of Potential Interest for Congress.”~~
~~33 5 U.S.C. app. 2.~~
~~34 Id. § 552b.~~
35 Id. § 552a; see infra “ § 552a; see infra Related Open Government and Information Laws: FACA, the Sunshine Act, and the Privacy
Act.”
3633 5 U.S.C. § 552(a)(3)(A), (4)(B). 5 U.S.C. § 552(a)(3)(A), (4)(B).
3734 See id. §§ 551(1), 552(f)(2); §§ 551(1), 552(f)(2); see also id. § 552(a)(3)(A) (requiring that “each agency .§ 552(a)(3)(A) (requiring that “each agency . . .. make [requested] records . make [requested] records
promptly available” upon receiving a proper request). promptly available” upon receiving a proper request).
3835 See id. § 552(a)(4)(B). § 552(a)(4)(B).
3936 See id. § 552(a)(3)(A). § 552(a)(3)(A).
4037 Id. § 551(1). Several entities § 551(1). Several entities, such as Congress and the federal courts, are explicitly excepted from this definition. are explicitly excepted from this definition. ~~See, e.g., id.~~ Id. § 551(1)(A)§ 551(1)(A) ~~(Congress), (B)~~
~~(federal courts~~, (B). 38 Id. § 552(f)(1). ).
Congressional Research Service Congressional Research Service
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The Freedom of Information Act (FOIA): A Legal Overview

~~Government (including the Executive Office of the President), or any independent regulatory~~
~~agency.”41 While this definition includes a large swath of the federal government, it does not~~
~~encompass the entire federal establishment. For example, FOIA does not apply to Congress, the~~
~~federal courts, or territorial governments.42~~
example, FOIA does not apply to Congress, the federal courts, or territorial governments.39 FOIA has also been held not to apply to state or local governments.40 Although FOIA’s definition of “agency” includes the Executive Office of the President (EOP), Although FOIA’s definition of “agency” includes the Executive Office of the President (EOP),4341
courts have determined that several entities within the EOP are nevertheless not subject to the act. courts have determined that several entities within the EOP are nevertheless not subject to the act.
In In Kissinger v. Reporters Committee for Freedom of the Press, the Supreme Court held that , the Supreme Court held that
transcripts of Henry Kissinger’s telephone conversations from his time as Assistant to the transcripts of Henry Kissinger’s telephone conversations from his time as Assistant to the
President for National Security Affairs were not subject to disclosure under FOIA.President for National Security Affairs were not subject to disclosure under FOIA.~~44 The Court~~

~~41 Id. § 552(f)(1).~~
4242 The Court explained that the term “agency” as used in FOIA does not apply to “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.”43 Courts have determined that several EOP entities are not FOIA “agencies” by virtue of their solely advisory or operational functions, including the Council of Economic Advisers,44 Office of Administration,45 and National Security Council.46 On the other hand, courts have held 39 Id. § 551(1) (providing that the definition of “agency” in the APA does not apply to, § 551(1) (providing that the definition of “agency” in the APA does not apply to, inter alia, “(A) the Congress; , “(A) the Congress;
(B) the courts of the United States; [or] (C) the governments of the territories or possessions of the United States”). (B) the courts of the United States; [or] (C) the governments of the territories or possessions of the United States”).
Courts have clarified that FOIA does not apply to Courts have clarified that FOIA does not apply to ~~the entirety~~any part of the legislative and judicial branches, including their of the legislative and judicial branches, including their
subcomponents. subcomponents. See, e.g., Mayo v. GPO, 9 F.3d 1450, 1451 (9th Cir. 1993) (recognizing that the Government ., Mayo v. GPO, 9 F.3d 1450, 1451 (9th Cir. 1993) (recognizing that the Government
Publishing Office, as a legislative branch entity, Publishing Office, as a legislative branch entity, ~~was~~is not covered by FOIA); Andrade v. U.S. Sentencing Comm’n, 989 not covered by FOIA); Andrade v. U.S. Sentencing Comm’n, 989
F.2d 308, 309F.2d 308, 309-–10 (9th Cir. 1993) (ruling that FOIA does not apply to the Sentencing Commission as it is a judicial 10 (9th Cir. 1993) (ruling that FOIA does not apply to the Sentencing Commission as it is a judicial
branch entity)branch entity). ~~See~~; see also Mayo, 9 F.3d at , 9 F.3d at ~~451~~1451 (explaining that “[j]ust as [FOIA] in excluding ‘the courts of the United (explaining that “[j]ust as [FOIA] in excluding ‘the courts of the United
States,’ 5 U.S.C. § 551(1)(B), excludes not only the courts themselves but the entire judicial branch, so the entire States,’ 5 U.S.C. § 551(1)(B), excludes not only the courts themselves but the entire judicial branch, so the entire
legislative branch has been exempted from [FOIA]”); Cause of Action v. Nat’l Archives & Records Admin., 753 F.3d legislative branch has been exempted from [FOIA]”); Cause of Action v. Nat’l Archives & Records Admin., 753 F.3d
210, 212 (D.C. Cir. 2014) (explaining that “FOIA 210, 212 (D.C. Cir. 2014) (explaining that “FOIA ‘does not cover congressional documents,does not cover congressional documents,’ or documents of legislative or documents of legislative
branch agencies”) (branch agencies”) (~~internal quotation marks and~~ citations omitted). However, many entities that are not subject to FOIA citations omitted). However, many entities that are not subject to FOIA
nonetheless authorize public access to many of their records. nonetheless authorize public access to many of their records. See, e.g., 4 C.F.R. pt. 81 (, 4 C.F.R. pt. 81 (authorizing public access to Government Accountability Government Accountability
~~Office). And some~~Office records). Some entities that fall outside FOIA’s coverage are nonetheless required to provide access to records entities that fall outside FOIA’s coverage are nonetheless required to provide access to records
under non-FOIA statutes. under non-FOIA statutes. See, e.g., 2 U.S.C. § 603 (, 2 U.S.C. § 603 (~~Congressional Budget Office).~~
~~Further, FOIA’s disclosure obligations do not apply to state and local government entities.~~ requiring public access to Congressional Budget Office budget data). 40 See, e.g., Grand Cent. , Grand Cent.
~~Partnership~~P’ship, Inc. v. Cuomo, 166 F.3d 473, 484 (2d Cir. 1999); Foley v. Vill. of Weston, No. 06-C-350-C, 2006 WL , Inc. v. Cuomo, 166 F.3d 473, 484 (2d Cir. 1999); Foley v. Vill. of Weston, No. 06-C-350-C, 2006 WL
~~3449414, at *5 (W.D. Wis. Nov. 28, 2006). States have enacted their own public records laws. See Daniel J. Solove,~~
Access and Aggregation: Public Records, Privacy and the Constitution, 86 MINN. L. REV. 1137, 1161 (2002).
~~Relatedly, in Forsham v Harris, 445 U.S. 169 (1980), the Supreme Court held that FOIA does not apply to private~~
~~recipients of federal grants that are not subject to “extensive, detailed, and virtually day-to-day supervision” by a~~
~~covered agency, id. at 178-80. See Ky. Emples. Ret. Sys. v. Seven Counties Servs., 901 F.3d 718, 728-29 (6th Cir.~~
~~2018) (explaining that Forsham held that federal grants do not “serve to convert the acts of the recipient from private~~
~~acts to governmental acts absent extensive, detailed, and virtually day-to-day supervision—even if . . . some measure of~~
federal agency supervision is a condition of the grant renewals”) (internal citations and quotations omitted); accord
~~Mo. ex rel. Garstang v. DOI, 297 F.3d 745, 750 (8th Cir 2001) (“To convert a private organization . . . into a federal~~
~~government agency, the government must engage in ‘extensive, detailed, and virtually day-to-day supervision.’”~~
~~(quoting Forsham, 445 U.S. at 180)).~~
~~Notably, in a rider to the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. No.~~
~~105-277, 112 Stat. 2681 (Oct. 21, 1998), Congress directed the Office of Management and Budget (OMB) to amend~~
~~OMB Circular A–110,~~ ~~Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal~~
~~Awards, to mandate that “Federal awarding agencies . . . ensure that all data produced under an award will be made~~
~~available to the public through the procedures established under” FOIA. Pub. L. No. 105-277, 112 Stat. at 2681-495.~~
~~The circular now provides that a recipient of a federal award must provide to its awarding agency, upon request,~~
~~“research data relating to published research findings produced under a Federal award that were used by the Federal~~
~~Government in developing an agency action that has the force and effect of law,” if such data has been requested under~~
~~FOIA, “so that [such data] can be made available to the public through the procedures established under the FOIA.” 2~~
~~C.F.R. § 200.315(e)(1). The awarding agency is required to request the data from the funding recipient upon receiving~~
~~a request therefor. Id. “Research data” does not include, among other things, “preliminary analyses, drafts of scientific~~
~~papers, plans for future research, peer reviews, or communications with colleagues.” Id. § 200.315(e)(3). Research~~
~~findings are “published” when they appear “in a peer-reviewed scientific or technical journal” or when an “agency~~
~~publicly and officially cites the research findings in support of an agency action that has the force and effect of law.”~~
Id. § 200.315(e)(2).
~~43 See 5 U.S.C. § 552(f)(2).~~
~~44 445 U.S. 136, 156 (1980).~~
~~Congressional Research Service~~
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~~explained that the term “agency” as used in FOIA does not apply to “the President’s immediate~~
~~personal staff or units in the Executive Office whose sole function is to advise and assist the~~
~~President.”45 Courts have determined that several EOP entities are not FOIA “agencies” by virtue~~
~~of their solely advisory or operational functions, including the Council of Economic Advisers,46~~
~~Office of Administration,47 and National Security Council.48 On the other hand, courts have held~~

45 Id. ~~(internal quotation marks omitted)~~3449414, at *5 (W.D. Wis. Nov. 28, 2006). States have enacted their own public records laws. See Daniel J. Solove et al., Modern Studies in Privacy Law: Notice, Autonomy and Enforcement of Data Privacy Legislation: Access and Aggregation: Public Records, Privacy and The Constitution, 86 MINN. L. REV. 1137, 1161 (2002). 41 See 5 U.S.C. § 552(f)(2). 42 445 U.S. 136, 156 (1980). 43 Id. (quoting H.R. REP. NO. 1380, at 15 (1974) (Conf. Rep.)). The standard set (quoting H.R. REP. NO. 1380, at 15 (1974) (Conf. Rep.)). The standard set
forth by the Court in forth by the Court in Kissinger, 445 U.S. at 136, was quoted from the conference report was quoted from the conference report ~~underlying~~accompanying the 1974 amendments to FOIA. the 1974 amendments to FOIA. Id.
That report states that “[t]he term [“Executive Office of the President”] is not to be interpreted as including the That report states that “[t]he term [“Executive Office of the President”] is not to be interpreted as including the
President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the
President.” H.R. REP. NO. 1380, at 15 (1974) (Conf. Rep.). Immediately before announcing this standard, the report President.” H.R. REP. NO. 1380, at 15 (1974) (Conf. Rep.). Immediately before announcing this standard, the report
~~provides~~provided that “[w]ith respect to the meaning of the term ‘Executive Office of the President’ the conferees intend the that “[w]ith respect to the meaning of the term ‘Executive Office of the President’ the conferees intend the
result reached in result reached in Soucie v.v. David, 448 F.2d 1067 (C.A.D.C. 1971).” In , 448 F.2d 1067 (C.A.D.C. 1971).” In Soucie, the U.S. Court of Appeals for the , the U.S. Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) held that the Office of Science and Technology (OST) was an agency under District of Columbia Circuit (D.C. Circuit) held that the Office of Science and Technology (OST) was an agency under
FOIA. FOIA. Id. at 1075. The court arrived at that result after concluding that “the APA apparently confers agency status on at 1075. The court arrived at that result after concluding that “the APA apparently confers agency status on
any administrative unit with substantial independent authority in the exercise of specific functions.” any administrative unit with substantial independent authority in the exercise of specific functions.” Id. at 1073. at 1073. ~~While~~
Although the court observed that OST exercised substantial independent authority, it acknowledged that if the office’s “sole the court observed that OST exercised substantial independent authority, it acknowledged that if the office’s “sole
function were to advise and assist the President, that might be taken as an indication that [it] is part of the President’s function were to advise and assist the President, that might be taken as an indication that [it] is part of the President’s
staff and not a separate agency.” staff and not a separate agency.” Id. at 1075. The at 1075. The Soucie decision and the conference report’s adoption thereof suggest decision and the conference report’s adoption thereof suggest
that the D.C Circuit and Congress “wished to avoid the serious separation-of-powers questions that too expansive a that the D.C Circuit and Congress “wished to avoid the serious separation-of-powers questions that too expansive a
reading of FOIA would engender.” Judicial Watch, Inc. v. U.S. Secret Service, 726 F.3d 208, 227 (D.C. Cir. 2013). reading of FOIA would engender.” Judicial Watch, Inc. v. U.S. Secret Service, 726 F.3d 208, 227 (D.C. Cir. 2013).
4644 Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1042 Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1042-–43 (D.C. Cir. 1985). 43 (D.C. Cir. 1985).
4745 Citizens for Responsibility & Ethics in Wash. (CREW) v. Office of Admin., 566 F.3d 219, 226 (D.C. Cir. 2009). Citizens for Responsibility & Ethics in Wash. (CREW) v. Office of Admin., 566 F.3d 219, 226 (D.C. Cir. 2009).
4846 Main St. Legal Servs. v. Nat’l Sec. Council, 811 F.3d 542, 566 (2d Cir. 2016); Armstrong v. Exec. Office of the Main St. Legal Servs. v. Nat’l Sec. Council, 811 F.3d 542, 566 (2d Cir. 2016); Armstrong v. Exec. Office of the
President, 90 F.3d 553, 565 (D.C. Cir. 1996).President, 90 F.3d 553, 565 (D.C. Cir. 1996). Cf. Sweetland v. Walters, 60 F.3d 852, Sweetland v. Walters, 60 F.3d 852, ~~854~~855 (D.C. Cir. 1995) (per curiam) (continued...) Congressional Research Service 4 link to page 8 The Freedom of Information Act (FOIA): A Legal Overview that entities within the EOP that “wield[] substantial authority independently of the President,”47 such as the Office of Management and Budget,48 are agencies under FOIA. FOIA also does not apply to private recipients of federal grants that are not subject to “extensive, detailed, and virtually day-to-day supervision” by a covered agency.49 Data produced as a result of a federal grant or award, however, is subject to FOIA.50 ( ~~(D.C. Cir. 1995) (per curiam)~~
(holding “that the staff of the Executive Residence is not an agency as defined in FOIA”). The 1974 House committee holding “that the staff of the Executive Residence is not an agency as defined in FOIA”). The 1974 House committee
report, which preceded the conference report relied on by the Supreme Court in report, which preceded the conference report relied on by the Supreme Court in Kissinger, stated that the “Executive , stated that the “Executive
Office of the President” term included the National Security Council (NSC). H.R. REP. NO. 876 (1974),Office of the President” term included the National Security Council (NSC). H.R. REP. NO. 876 (1974), reprinted in
FREEDOM OF INFORMATION ACT AND AMENDMENTS OF 1974FREEDOM OF INFORMATION ACT AND AMENDMENTS OF 1974 ~~(P.L. 93-502~~, Pub. L. No. 93-502, 88 Stat. 1561 (1974), SOURCE BOOK: LEGISLATIVE HISTORY, ), SOURCE BOOK: LEGISLATIVE HISTORY,
TEXTS, AND OTHER DOCUMENTS, at 121, 128 (Joint Comm. Print 1975). TEXTS, AND OTHER DOCUMENTS, at 121, 128 (Joint Comm. Print 1975). ~~And the~~The Court in Court in Kissinger, in response to the , in response to the
argument that some of the requested notes from Kissinger’s time as presidential adviser may have been NSC records, argument that some of the requested notes from Kissinger’s time as presidential adviser may have been NSC records,
referred to the committee report’s conclusion that NSC records were subject to FOIA. referred to the committee report’s conclusion that NSC records were subject to FOIA. See Kissinger, 445 U.S. at 445 U.S. at ~~136~~156 (writing that (writing that
the committee report “indicat[es] that the [NSC] is an executive agency to which the FOIA applies”). the committee report “indicat[es] that the [NSC] is an executive agency to which the FOIA applies”). ~~But the~~The U.S. U.S.
Court of Appeals for the Second Circuit in Court of Appeals for the Second Circuit in Main ~~Street~~St. Legal ~~Services~~Servs., Inc. v. Nat'l Sec. Council, 811 F.3d 542 (2d Cir. 2016), explained that the explained that the Kissinger Court’s Court’s
“assumption that the NSC was an agency was made only “assumption that the NSC was an agency was made only arguendo in concluding . in concluding . . .. that the plaintiffs in that case had . that the plaintiffs in that case had
failed properly to make a FOIA request for any NSC records” and that “[s]uch an assumption is not even failed properly to make a FOIA request for any NSC records” and that “[s]uch an assumption is not even dictum.” .” ~~811~~
~~F.3d at 552;~~ ~~see~~See Rushforth, 762 F.2d at 1040, 762 F.2d at 1040–41 (“Where . (“Where . ~~. .~~ .. the specific mention of the [Council of Economic Advisers] the specific mention of the [Council of Economic Advisers]
in the House Report was dropped and a specific, judicially formulated test was adopted by the Conference Committee in the House Report was dropped and a specific, judicially formulated test was adopted by the Conference Committee
for determining the FOIA status of such entities, the House Report is entitled to little weight in this respect. Manifestly, for determining the FOIA status of such entities, the House Report is entitled to little weight in this respect. Manifestly,
the Conference elected to embrace a test to be substituted for a listing of the entities to be included; the outcome of the the Conference elected to embrace a test to be substituted for a listing of the entities to be included; the outcome of the
case before us should, accordingly, turn on an examination of case before us should, accordingly, turn on an examination of Soucie and the sole-function test enunciated in that and the sole-function test enunciated in that
~~case.”).~~
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~~that entities within the EOP that “wield[] substantial authority independently of the President,”49~~
~~such as the Office of Management and Budget,50 are agencies under FOIA.51~~
~~“Agency Records”~~
~~Just as only “agencies” are subject to FOIA’s disclosure requirements, only “agency records”~~
~~need be disclosed under the act.52 FOIA, however, does not define “agency records.”53 Without a~~
~~statutory definition, the Supreme Court, in Department of Justice (DOJ) v. Tax Analysts,54 held~~
~~that materials qualify as agency records if an agency (1) created or obtained the materials and (2)~~
~~was “in control of the requested materials at the time the FOIA request [was] made.”55 An agency~~
~~comes in control of materials if, per Tax Analysts, “the materials have come into the agency’s~~
~~possession in the legitimate conduct of its official duties.”56~~
~~As the two-part test makes clear, a record may be subject to disclosure even when an agency did~~
~~not create the record, as long as the agency obtained and controlled the record when it was~~
~~requested.57 To determine whether an agency exercises “control” of a record, the U.S. Court of~~
~~Appeals for the District of Columbia Circuit (D.C. Circuit) developed the “Burka test,” which~~
~~considers~~
~~(1) the intent of the document’s creator to retain or relinquish control over the~~
~~records;~~
~~(2) the ability of the agency to use and dispose of the record as it sees fit;~~

~~49 CREW, 566 F.3d at 222-23 (internal quotation marks omitted) (quoting Sweetland, 60 F.3d at 854). This test is~~
~~derived from Soucie decision, discussed supra note 45. In CREW v. Office of Administration, the D.C. Circuit~~
~~explained that it has articulated several tests for analyzing whether FOIA applies to an entity within the EOP, and that~~
~~“[t]hese tests have asked, variously, ‘whether the entity exercises substantial independent authority,’ ‘whether . . . the~~
~~entity’s sole function is to advise and assist the President,’ and in an effort to harmonize these tests, ‘how close~~
~~operationally the group is to the President,’ ‘whether it has a self-contained structure,’ and ‘the nature of its~~
~~delegat[ed]’ authority.” 566 F.3d at 222 (citations omitted) (ellipses and second alteration in original). But, the court~~
~~explained, “common to every case in which we have held that an EOP unit is subject to FOIA has been a finding that~~
~~the entity in question ‘wielded substantial authority independently of the President.’” Id. at 222-23 (quoting Sweetland,~~
~~60 F.3d at 854).~~
~~50 CREW, 566 F.3d at 223 (citing Sierra Club v. Andrus, 581 F.2d 895, 901-02 (D.C. Cir. 1978), and explaining that the~~
Andrus decision stands for the proposition that OMB “exercises substantial independent authority because it has a
~~statutory duty to prepare the annual federal budget, which aids both Congress and the President”).~~
~~51 See id.~~
~~52 5 U.S.C. § 552(a)(4)(B) (providing that federal district courts have “jurisdiction to enjoin [agencies] from improperly~~
case.”). 47 CREW, 566 F.3d at 222–23 (quoting Sweetland, 60 F.3d at 854); see Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), discussed supra note 43. In CREW v. Office of Administration, the D.C. Circuit explained that it has articulated several tests for analyzing whether FOIA applies to an entity within the EOP, and that “[t]hese tests have asked, variously, ‘whether the entity exercises substantial independent authority,’ ‘whether ... the entity’s sole function is to advise and assist the President,’ and in an effort to harmonize these tests, ‘how close operationally the group is to the President,’ ‘whether it has a self-contained structure,’ and ‘the nature of its delegat[ed]’ authority.” 566 F.3d at 222 (citations omitted) (ellipses and second alteration in original). The court explained that “common to every case in which we have held that an EOP unit is subject to FOIA has been a finding that the entity in question ‘wielded substantial authority independently of the President.’” Id. at 222–23 (quoting Sweetland, 60 F.3d at 854). 48 CREW, 566 F.3d at 223 (citing Sierra Club v. Andrus, 581 F.2d 895, 901–02 (D.C. Cir. 1978), and explaining that the Andrus decision stands for the proposition that OMB “exercises substantial independent authority because it has a statutory duty to prepare the annual federal budget, which aids both Congress and the President”). 49 Forsham v. Harris, 445 U.S. 169, 178–80 (1980); see also Ky. Emples. Ret. Sys. v. Seven Counties Servs., 901 F.3d 718, 728–29 (6th Cir. 2018) (explaining that Forsham held that federal grants do not “serve to convert the acts of the recipient from private acts to governmental acts absent extensive, detailed, and virtually day-to-day supervision—even if ... some measure of federal agency supervision is a condition of the grant renewals”) (internal citations omitted); accord Mo. ex rel. Garstang v. DOI, 297 F.3d 745, 750 (8th Cir 2002) (“To convert a private organization ... into a federal government agency, the government must engage in ‘extensive, detailed, and virtually day-to-day supervision.’” (quoting Forsham, 445 U.S. at 180)). 50 In 1999, Congress included a rider in an appropriations bill that directed the Office of Management and Budget (OMB) to amend OMB Circular A–110, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, to mandate that “Federal awarding agencies ... ensure that all data produced under an award will be made available to the public through the procedures established under [FOIA].” The circular now provides that a recipient of a federal award must provide to its awarding agency, upon request, “research data relating to published research findings produced under a Federal award that were used by the Federal Government in developing an agency action that has the force and effect of law,” if such data has been requested under FOIA, “so that [such data] can be made available to the public through the procedures established under the FOIA.” 2 C.F.R. § 200.315(e)(1). The awarding agency is required to request the data from the funding recipient upon receiving a request therefor. Id. “Research data” does not include, among other things, “preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues.” Id. § 200.315(e)(3). Research findings are “published” when they appear “in a peer-reviewed scientific or technical journal” or when an “agency publicly and officially cites the research findings in support of an agency action that has the force and effect of law.” Id. § 200.315(e)(2). Congressional Research Service 5 The Freedom of Information Act (FOIA): A Legal Overview “Agency Records” Just as only “agencies” are subject to FOIA’s disclosure requirements, only “agency records” are subject to FOIA.51 FOIA defines “records” to include “any information” in “any format, including an electronic format.”52 Although FOIA does not define “agency records,”53 the Supreme Court, in United States Department of Justice (DOJ) v. Tax Analysts,54 held that materials qualify as agency records if an agency (1) created or obtained the materials and (2) was “in control of the requested materials at the time the FOIA request [was] made.”55 An agency comes in control of materials if “the materials have come into the agency’s possession in the legitimate conduct of its official duties.”56 As the two-part test makes clear, a record may be subject to disclosure even when an agency did not create the record, as long as the agency obtained and controlled the record when it was requested.57 To determine whether an agency exercises “control” of a record, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) developed the “Burka test,” which considers (1) the intent of the document’s creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency’s record system or files.58 51 5 U.S.C. § 552(a)(4)(B) (providing that federal district courts have “jurisdiction to enjoin [an] agency from improperly withholding withholding agency records and to order the production of any and to order the production of any agency records improperly withheld”) (emphasis improperly withheld”) (emphasis
added). added).
~~53 Forsham v. Harris, 445 U.S. 169, 178 (1980)~~52 Id. § 552(f)(2)(A). 53 Forsham, 445 U.S. at 178. FOIA does define “record” (unmodified by “agency”). . FOIA does define “record” (unmodified by “agency”). ~~See~~ 5 U.S.C. 5 U.S.C.
§ 552(f)(2). However, that definition does not provide insight into the meaning of “agency record.” § 552(f)(2). However, that definition does not provide insight into the meaning of “agency record.” See id. (providing (providing
that “record” refers to “(A) any information that would be an agency record subject to the requirements of this section that “record” refers to “(A) any information that would be an agency record subject to the requirements of this section
when maintained by an agency in any format, including an electronic format; and (B) any information described under when maintained by an agency in any format, including an electronic format; and (B) any information described under
subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records
management”). management”).
54 492 U.S. 136 (1989). 54 492 U.S. 136 (1989).
55 55 Id. at 144 at 144~~-45 (internal quotation marks and~~ –45 (citations omitted). citations omitted).
56 56 Id. at 145. at 145.
57 57 See id. at 144 (writing that, “[i]n performing their official duties, agencies routinely avail themselves of studies, trade at 144 (writing that, “[i]n performing their official duties, agencies routinely avail themselves of studies, trade
journal reports, and other materials produced outside the agencies both by private and governmental organizations” and journal reports, and other materials produced outside the agencies both by private and governmental organizations” and
that “[t]o restrict the term ‘agency records’ to materials generated internally would frustrate Congress’ desire to put that “[t]o restrict the term ‘agency records’ to materials generated internally would frustrate Congress’ desire to put
within public reach the information available to an agency in its decision-making processes”). within public reach the information available to an agency in its decision-making processes”).
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~~link to page 10~~ ~~The Freedom of Information Act (FOIA): A Legal Overview~~

~~(3) the extent to which agency personnel have read or relied upon the document; and~~
~~(4) the degree to which the document was integrated into the agency’s record system~~
~~or files.58~~58 Burka v. HHS, 87 F.3d 508, 515 (D.C. Cir. 1996) (citation omitted) (numerical formatting altered). Despite its name, the court originally set forth the Burka test in Tax Analysts v. DOJ, 845 F.2d 1060 (D.C. Cir. 1988), aff’d on other grounds, 492 U.S. 136. Congressional Research Service 6 link to page 11 The Freedom of Information Act (FOIA): A Legal Overview
That said, an agency’s mere That said, an agency’s mere ability to obtain materials, if not exercised, does not establish that to obtain materials, if not exercised, does not establish that
such materials are agency records.59 such materials are agency records.59 ~~And~~Further, FOIA does not require an agency to create agency FOIA does not require an agency to create agency
records in response to a FOIA requestrecords in response to a FOIA request~~, only to disclose records it has already received or created~~
~~and that are already under its control.60~~
~~Because FOIA only applies to “agency records,” it does not obligate agencies to disclose publicly~~
~~the~~ .60 Distinguishing Agency Records and Personal Records of an Employee Because FOIA applies only to “agency records,” agencies are not required to disclose the “personal records” of agency employees.61 As the Supreme Court in “personal records” of agency employees.61 As the Supreme Court in Tax Analysts explained, explained,
“the term ‘agency records’ is not so broad as to include personal materials in an employee’s “the term ‘agency records’ is not so broad as to include personal materials in an employee’s
possession, even though the materials may be physically located at the agency.”62 The D.C. possession, even though the materials may be physically located at the agency.”62 The D.C.
Circuit has employed “a totality of the circumstances test” to assess whether material constitutes Circuit has employed “a totality of the circumstances test” to assess whether material constitutes
an “agency record” subject to FOIA or a “personal record” excluded from the statute’s an “agency record” subject to FOIA or a “personal record” excluded from the statute’s
coverage.63 This “test focuses on a variety of factors surrounding the creation, possession, control, coverage.63 This “test focuses on a variety of factors surrounding the creation, possession, control,
and use of the document by an agency.”64 In applying the totality of the circumstances test in and use of the document by an agency.”64 In applying the totality of the circumstances test in

~~58 Burka v. HHS, 87 F.3d 508, 515 (D.C. Cir. 1996) (internal quotation marks and citation omitted) (numerical~~
~~formatting altered). Despite its name, the court originally set forth the Burka test in Tax Analysts v. DOJ, 845 F.2d 160-~~
~~69 (D.C. Cir. 1988), aff’d on other grounds, 492 U.S. 136.~~
Consumer 59 59 See Forsham v. Harris, 445 U.S. 169, 186 (1980) (holding, in the context of information generated by a private Forsham v. Harris, 445 U.S. 169, 186 (1980) (holding, in the context of information generated by a private
grantee of federal funds as to which agency had a right to access and obtain custody over, that “FOIA applies to records grantee of federal funds as to which agency had a right to access and obtain custody over, that “FOIA applies to records
which have been which have been in fact obtained, and not to records which merely obtained, and not to records which merely could have been obtained”); obtained”); cf. Burka, 87 F.3d at , 87 F.3d at
515 (holding that data possessed by third-party were agency records where agency had “constructive control” of the 515 (holding that data possessed by third-party were agency records where agency had “constructive control” of the
data)data); ~~but~~. But see Bloomberg L.P. v. Bd. of Governors of the Fed. Reserve Sys., 649 F. Supp. 2d 262, 275 (S.D.N.Y. 2009) Bloomberg L.P. v. Bd. of Governors of the Fed. Reserve Sys., 649 F. Supp. 2d 262, 275 (S.D.N.Y. 2009)
(holding that “[t]he Supreme Court’s teachings in (holding that “[t]he Supreme Court’s teachings in Tax Analysts, , Forsham, and , and Kissinger certainly do not compel certainly do not compel
adoption of the constructive obtainment and control theory, and thus this Court declines to do so under the facts adoption of the constructive obtainment and control theory, and thus this Court declines to do so under the facts
presented here”). Further, the Supreme Court explained in presented here”). Further, the Supreme Court explained in Kissinger v. Reporters ~~Committee~~Comm. for Freedom of the Press, ,
445 U.S. 136 (1980), that the fact that materials are 445 U.S. 136 (1980), that the fact that materials are physically located in an agency is not sufficient, alone, to render in an agency is not sufficient, alone, to render
such materials agency records. such materials agency records. See id. at 157 (“We simply decline to hold that the physical location of the notes of at 157 (“We simply decline to hold that the physical location of the notes of
telephone conversations renders them ‘agency records.’ The papers were not in the control of the State Department at telephone conversations renders them ‘agency records.’ The papers were not in the control of the State Department at
any time. They were not generated in the State Department. They never entered the State Department’s files, and they any time. They were not generated in the State Department. They never entered the State Department’s files, and they
were not used by the Department for any purpose. If mere physical location of papers and materials could confer status were not used by the Department for any purpose. If mere physical location of papers and materials could confer status
as an ‘agency record’ as an ‘agency record’ ~~Kissinger~~Kissinger’s personal books, speeches, and all other memorabilia stored in his office would have ’s personal books, speeches, and all other memorabilia stored in his office would have
been agency records subject to disclosure under the FOIA.”). been agency records subject to disclosure under the FOIA.”).
60 60 See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162 (1975) (writing that FOIA “only requires disclosure of NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162 (1975) (writing that FOIA “only requires disclosure of
certain documents which the law requires the agency to prepare or which the agency has decided for its own reasons to certain documents which the law requires the agency to prepare or which the agency has decided for its own reasons to
create”); create”); Kissinger, 445 U.S. at 152 (stating that FOIA “does not obligate agencies to create or retain documents; it , 445 U.S. at 152 (stating that FOIA “does not obligate agencies to create or retain documents; it
only obligates them to provide access to those which it in fact has created and retained”). only obligates them to provide access to those which it in fact has created and retained”).
Statutes such as the Federal Records Act (44 U.S.C. Chapters 21, 29, 31, and 33) and the Presidential Records Act (44 U.S.C. §§ 2201–2207) contain requirements for the retention of certain records held by the Executive Branch. 61 61 See Ethyl Corp. v. EPA, 25 F.3d 1241, 1247 (4th Cir. 1994) (“[P]ersonal records of an agency employee are not Ethyl Corp. v. EPA, 25 F.3d 1241, 1247 (4th Cir. 1994) (“[P]ersonal records of an agency employee are not
agency records and are not subject to the FOIA.”); DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF agency records and are not subject to the FOIA.”); DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF
INFORMATION ACT, PROCEDURAL REQUIREMENTS, at 16 (INFORMATION ACT, PROCEDURAL REQUIREMENTS, at 16 (~~Sept. 4, 2019~~Aug. 20, 2021) [hereinafter DOJ GUIDE, PROCEDURAL ) [hereinafter DOJ GUIDE, PROCEDURAL
REQUIREMENTS], https://www.justice.gov/oip/page/file/1199421/REQUIREMENTS], https://www.justice.gov/oip/page/file/1199421/~~download~~dl?inline. .
62 62 Tax Analysts, 492 U.S. at 145 (citing , 492 U.S. at 145 (citing Kissinger, 445 U.S. at 157). , 445 U.S. at 157).
63 CREW v. DHS, 527 F. Supp. 2d. 76, 88 n.15 (D.D.C. 2007); 63 CREW v. DHS, 527 F. Supp. 2d. 76, 88 n.15 (D.D.C. 2007); see DOJ GUIDE, PROCEDURAL REQUIREMENTS, DOJ GUIDE, PROCEDURAL REQUIREMENTS, supra
notenote 61, at 16. at 16.
64 Consumer Fed’n of Am. (CFA) v. USDA, 455 F.3d 283, 287 (D.C. Cir. 2006) 64 Consumer Fed’n of Am. (CFA) v. USDA, 455 F.3d 283, 287 (D.C. Cir. 2006) ((~~internal quotation marks,~~ alterations, alterations,
and citation omitted). The and citation omitted). The CFA court cited court cited Burka and and Tax Analysts in a footnote when it explained the focus of the in a footnote when it explained the focus of the
“totality of the circumstances” test. “totality of the circumstances” test. See id. at 287 n.7 (citing at 287 n.7 (citing Tax Analysts, 492 U.S. at 144, 492 U.S. at 144-–45; 45; Burka, 87 F.3d at 515). , 87 F.3d at 515).
However, the court explicitly based its analysis of whether the documents at issue in the case were “agency records” on However, the court explicitly based its analysis of whether the documents at issue in the case were “agency records” on
a prior D.C. Circuit decision with similar facts, a prior D.C. Circuit decision with similar facts, Bureau of National Affairs, Inc. (BNA) v. DOJ, 742 F.2d 1484 (D.C. , 742 F.2d 1484 (D.C.
Cir. 1984). Cir. 1984). See CFA, 455 F.3d at 288 (explaining that , 455 F.3d at 288 (explaining that BNA “provides the template necessary to decide this case”). “provides the template necessary to decide this case”). BNA
preceded the Supreme Court’s preceded the Supreme Court’s Tax Analysts decision and the D.C. Circuit’s use of the four-factor control test. The decision and the D.C. Circuit’s use of the four-factor control test. The
concurring opinion in concurring opinion in CFA argued that the argued that the Burka test, not test, not BNA, “provide[d] a better guide to decide th[e] case.” , “provide[d] a better guide to decide th[e] case.” Id. at at
295 (Henderson, J., concurring). The D.C. Circuit later wrote that the court did apply the Burka test in CFA. See Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924, 927 (D.C. Cir. 2011) (writing that the CFA court “used the Burka factors to decide whether FOIA applied” to the materials at issue in that case); cf. Judicial Watch, Inc. v. Secret Service, 726 F.3d 208, 220 (D.C. Cir. 2013) (writing that the D.C. Circuit has at different times suggested that all of the Burka factors must be satisfied (continued...) Congressional Research Service Congressional Research Service
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~~Consumer~~ Federation of America v. Department of Agriculture (USDA), the D.C. Circuit held that , the D.C. Circuit held that
electronic calendars of several USDA officials qualified as “agency records” under FOIA.65 The electronic calendars of several USDA officials qualified as “agency records” under FOIA.65 The
calendars “were created by agency employees and were located within the [officials’] agency,” calendars “were created by agency employees and were located within the [officials’] agency,”
updated and accessed daily, and maintained on the agency’s computer system.66 The court updated and accessed daily, and maintained on the agency’s computer system.66 The court
~~determined, however, that the “creation, possession, and control” factors were “not dispositive in~~
~~determining whether the calendars [were] ‘agency records’” in the case.67 Instead, the court held~~
~~that the~~ held that the officials’ use of the calendars was the “decisive factor.”officials’ use of the calendars was the “decisive factor.”6867 Specifically, the court found it Specifically, the court found it
significant that the calendars were used to schedule agency operations and were distributed to significant that the calendars were used to schedule agency operations and were distributed to
other agency staff and top officials.other agency staff and top officials.~~69 But the~~68 The court court further determined that the electronic calendar of determined that the electronic calendar of a a
separate USDA official was separate USDA official was not an agency record subject to disclosure under FOIA because the an agency record subject to disclosure under FOIA because the
official only shared the calendar with his secretaries and, therefore, no one else within the agency official only shared the calendar with his secretaries and, therefore, no one else within the agency
depended on his calendar to conduct agency business.depended on his calendar to conduct agency business.7069
Although FOIA does not require the disclosure of personal Although FOIA does not require the disclosure of personal ~~materials~~records, issues may arise when , issues may arise when
agency personnel use nonofficial electronic accounts to communicate.agency personnel use nonofficial electronic accounts to communicate.7170 In In Competitive
Enterprise Institute v. Office of Science & Technology Policy (OSTP),,7271 the requester sought “all the requester sought “all
policy/OSTP-related email[s]” contained within the private email account of the director of policy/OSTP-related email[s]” contained within the private email account of the director of
OSTP.OSTP.7372 A private entity maintained an account that the director used for work-related purposes. A private entity maintained an account that the director used for work-related purposes.7473
OSTP denied the request, asserting that the private entity (the director’s former employer) OSTP denied the request, asserting that the private entity (the director’s former employer)

~~295 (Henderson, J., concurring).~~
~~The D.C. Circuit later wrote that the court did apply the Burka test in CFA. See Judicial Watch, Inc. v. Fed. Hous. Fin.~~
~~Agency, 646 F.3d 924, 927 (D.C. Cir. 2011) (writing that the CFA court “used the Burka factors to decide whether~~
~~FOIA applied” to the materials at issue in that case); cf. Judicial Watch, Inc. v. Secret Service, 726 F.3d 208, 220 (D.C.~~
~~Cir. 2013) (writing that the D.C. Circuit has at different times suggested that all of the Burka factors must be satisfied~~
controlled the account and that the agency therefore could not search it.74 The D.C. Circuit, however, disagreed and held that “records do not lose their agency character just because the official who possesses them takes them out the door.”75 Instead, the court wrote, “[i]f the agency head controls what would otherwise be an agency record, then it is still an agency record and still must be searched or produced.”76 Thus, records that would otherwise be “agency records” under to establish control and, in contrast, “described the test as a ‘totality of the circumstances test.’” (quoting to establish control and, in contrast, “described the test as a ‘totality of the circumstances test.’” (quoting CFA, 455 , 455
F.3d at 287)).F.3d at 287)). But see, e.g., Edelman v. SEC, 172 F. Supp. 3d 133, 150 (D.D.C. 2016) (explaining that the “‘totality of , Edelman v. SEC, 172 F. Supp. 3d 133, 150 (D.D.C. 2016) (explaining that the “‘totality of
the circumstances’ test applied in the circumstances’ test applied in CFA and and BNA—rather than the [—rather than the [Burka] four-factor framework []—best fits this ] four-factor framework []—best fits this
case”). case”).
6565 CFA, 455 F.3d, 455 F.3d at 293. at 293.
66 66 Id. at 288at 288-–90. 67 Id. at 288. 68 Id. at 291. See Edelman,~~90.~~
~~67 Id. at 290; see id. at 289 (“As was true of both the daily agendas and the desk calendars in [BNA]—and thus~~
~~insufficient by itself to distinguish between agency and personal records—all six USDA calendars were created by~~
~~agency employees and were located within the agency . . . .”); id. at 290 (“[E]ven if the USDA calendars never entered~~
~~USDA’s files, that would not decide the question before us. In [BNA], the court found that neither the desk calendars~~
~~nor the daily agendas were ‘placed into agency files.’ Nonetheless, the latter were held to be ‘agency records.’”~~
~~(quoting BNA, 742 F.2d at 1494))).~~
~~68 Id. at 288.~~
69 Id. at 291. See Edelman 172 F. Supp. 3d at 153 (explaining that the court found the “distribution” aspect of the “use” 172 F. Supp. 3d at 153 (explaining that the court found the “distribution” aspect of the “use”
factor in factor in CFA and and BNA, important because “distribution served as evidence that [the records] ‘were created for the , important because “distribution served as evidence that [the records] ‘were created for the
purpose of conducting agency business.’” (emphasis omitted) (quoting purpose of conducting agency business.’” (emphasis omitted) (quoting BNA, 742 F.2d at 1496)). , 742 F.2d at 1496)).
7069 CFA, 455 F.3d at 293. , 455 F.3d at 293.
7170 Congress was aware of the practice of federal employees conducting government business on private electronic Congress was aware of the practice of federal employees conducting government business on private electronic
accounts when it passed the Presidential and Federal Records Act Amendments of 2014, Pub. L. No. 113-187, 128 Stat. accounts when it passed the Presidential and Federal Records Act Amendments of 2014, Pub. L. No. 113-187, 128 Stat.
20032003 (2014). That act, in part, prohibits employees of “executive agencies” from “creat[ing] or send[ing] a record using a non-. That act, in part, prohibits employees of “executive agencies” from “creat[ing] or send[ing] a record using a non-
official electronic messaging account unless” they copy their official account when creating or sending the record or official electronic messaging account unless” they copy their official account when creating or sending the record or
“forward[] a complete copy of the record to [their] official electronic messaging account” within twenty days.“forward[] a complete copy of the record to [their] official electronic messaging account” within twenty days. Id.
§ 10(a), 128 Stat. at 2014 (codified at 44 U.S.C. § 2911(a)(1)-(2)). An individual’s intentional violation of this § 10(a), 128 Stat. at 2014 (codified at 44 U.S.C. § 2911(a)(1)-(2)). An individual’s intentional violation of this
requirement, “as determined by the appropriate supervisor, shall be a basis for disciplinary action in accordance with requirement, “as determined by the appropriate supervisor, shall be a basis for disciplinary action in accordance with
subchapter I, II, or V of chapter 75 of title 5, as the case may be.” subchapter I, II, or V of chapter 75 of title 5, as the case may be.” Id. (codified at 44 U.S.C. § 2911(b)). (codified at 44 U.S.C. § 2911(b)).
7271 827 F.3d 145 (D.C. Cir. 2016). 827 F.3d 145 (D.C. Cir. 2016).
7372 Id. at 146 (citation at 146 (citation ~~and internal quotation marks~~ omitted). omitted).
7473 Competitive Enter. Inst. (CEI) v. OSTP, 241 F. Supp. 3d 14, 18 (D.D.C. 2017). 74 See CEI v. OSTP, 82 F. Supp. 3d 228, 232–34 (D.D.C. 2015), rev’d and remanded, 827 F.3d 145; CEI, 827 F.3d at 146–47. 75 CEI, 827 F.3d at 507. 76 Id. On remand, the district court held that OSTP was not required to disclose the work-related emails in the director’s private email account. CEI, 241 F. Supp. 3d at 21, 24. The court determined that the government had successfully shown that the director had complied with OSTP’s policy that employees must forward work-related emails on private accounts to their official OSTP accounts and that, therefore, “any work-related emails in [his private account] are (continued...) Congressional Research Service 8 link to page 18 The Freedom of Information Act (FOIA): A Legal Overview FOIA do not lose their character because they are stored ~~Competitive Enter. Inst. (CEI) v. OSTP, 241 F. Supp. 3d 14, 18 (D.D.C. 2017).~~
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~~controlled the account and that the agency, therefore, could not search it.75 The district court~~
~~dismissed the suit in favor of the agency.76 However, the D.C. Circuit reversed, explaining that~~
~~“records do not lose their agency character just because the official who possesses them takes~~
~~them out the door or because he is the head of the agency.”77 Instead, the court wrote, “[i]f the~~
~~agency head controls what would otherwise be an agency record, then it is still an agency record~~
~~and still must be searched or produced.”78 The D.C. Circuit’s decision in~~ ~~Competitive Enterprise~~
~~Institute, therefore, stands for the proposition that agency records are subject to FOIA even if~~
~~contained~~ in nongovernmental electronic accounts. in nongovernmental electronic accounts.7977
“Any Person”
Lastly, FOIA directs agencies to disclose nonexempt agency records to “any person” upon Lastly, FOIA directs agencies to disclose nonexempt agency records to “any person” upon
request.request.8078 A “person” is defined as “an individual, partnership, corporation, association, or public A “person” is defined as “an individual, partnership, corporation, association, or public
or private organization other than an agency.”or private organization other than an agency.”8179 Courts have Courts have ~~therefore~~ held that, along with held that, along with
individuals, organizational entities such as corporationsindividuals, organizational entities such as corporations~~, as well as~~ and state and foreign governments have access rights under FOIA.80 Federal agencies have no right to records under FOIA.81 Access to records under FOIA does not hinge on whether an individual is an American citizen; noncitizens are also entitled to records under the act.82 Further, the Supreme Court has explained ~~state and foreign governments,~~

~~75 See CEI v. OSTP, 82 F. Supp. 3d 228, 232-34 (D.D.C. 2015), rev’d, 827 F.3d 145; CEI, 827 F.3d at 146-47.~~
~~76 CEI, 82 F. Supp. 3d at 237.~~
~~77 CEI, 827 F.3d at 507.~~
~~78 Id. On remand, the district court held that OSTP was not required to disclose the work-related emails in the director’s~~
~~private email account. CEI, 241 F. Supp. 3d at 21, 24. The court determined that the government had successfully~~
~~shown that the director had complied with OSTP’s policy that employees must forward work-related emails on private~~
~~accounts to their official OSTP accounts and that, therefore, “any work-related emails in [his private account] are~~
duplicates of emails located in his OSTP account.” duplicates of emails located in his OSTP account.” Id. at 21, 22. “FOIA,” the court explained, “does not require at 21, 22. “FOIA,” the court explained, “does not require
agencies to produce duplicate records”; therefore, the government needed only to disclose responsive records contained agencies to produce duplicate records”; therefore, the government needed only to disclose responsive records contained
in the director’s official OSTP email account. in the director’s official OSTP email account. Id. at 22 at 22-–23. Further, the court determined that OSTP conducted an 23. Further, the court determined that OSTP conducted an
adequate search of the director’s official email account. adequate search of the director’s official email account. Id. at 23, 24 ( at 23, 24 (~~internal quotation marks and~~ citation omitted). citation omitted).
7977 See CEI, 827 F.3d at 146 (“[A]n agency cannot shield its records from search or disclosure under FOIA by the , 827 F.3d at 146 (“[A]n agency cannot shield its records from search or disclosure under FOIA by the
expedient of storing them in a private email account controlled by the agency headexpedient of storing them in a private email account controlled by the agency head ~~. . . .~~.... ”); Claudia Polsky, ”); Claudia Polsky, Open
Records, Shuttered Labs: Ending Political Harassment of Public University Researchers, 66 UCLA L. REV. 208, 271, 66 UCLA L. REV. 208, 271
~~n.199~~ (2019) (explaining that the (2019) (explaining that the Competitive Enterprise Institute court “held . court “held . . .. that the federal FOIA can reach . that the federal FOIA can reach
private email accounts where those accounts contain agency records”) (citing private email accounts where those accounts contain agency records”) (citing CEI, 827 F.3d at 146). , 827 F.3d at 146).
8078 5 U.S.C. § 552(a)(3)(A). 5 U.S.C. § 552(a)(3)(A). See infra “Request-Driven Disclosure.”
81 79 5 U.S.C. § 551(2). 5 U.S.C. § 551(2). Cf. Bloomberg L.P. v. Bd. of Governors of the Fed. Reserve Sys., 649 F. Supp. 2d 262, 277 n.12 Bloomberg L.P. v. Bd. of Governors of the Fed. Reserve Sys., 649 F. Supp. 2d 262, 277 n.12
(S.D.N.Y. 2009) (stating that “the only way the FRBNY [Federal Reserve Bank of New York] could qualify as a (S.D.N.Y. 2009) (stating that “the only way the FRBNY [Federal Reserve Bank of New York] could qualify as a
person is if this Court determined that the FRBNY does not qualify as an agency because FOIA defines ‘person’ as an person is if this Court determined that the FRBNY does not qualify as an agency because FOIA defines ‘person’ as an
‘individual, partnership, corporation, association, or public or private organization other than an agency’” (emphasis ‘individual, partnership, corporation, association, or public or private organization other than an agency’” (emphasis
omitted) (quoting 5 U.S.C. § 551(2))), omitted) (quoting 5 U.S.C. § 551(2))), aff’d, 601 F.3d 143 (2d Cir. 2010). , 601 F.3d 143 (2d Cir. 2010).
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~~have access rights under FOIA.82 That said, federal agencies have no right to records under~~
~~FOIA.83~~
~~Access to records under FOIA does not hinge on whether an individual is an American citizen;~~
~~noncitizens are also entitled to records under the act.84 Further, the Supreme Court has explained~~
~~that the requester’s identity generally does not factor into whether records are subject to~~
~~disclosure, nor is a requester generally required to supply a reason to an agency for his or her~~
~~request.85~~

8280 See, e.g., Judicial Watch of Fla., Inc. v. DOJ, 102 F. Supp. 2d 6, 10 (D.D.C. 2000) (noting 5 U.S.C. § 551(1)’s , Judicial Watch of Fla., Inc. v. DOJ, 102 F. Supp. 2d 6, 10 (D.D.C. 2000) (noting 5 U.S.C. § 551(1)’s
definition of “person” and explaining that “[a] corporation is a person entitled to make FOIA requests”); Texas v. definition of “person” and explaining that “[a] corporation is a person entitled to make FOIA requests”); Texas v.
Interstate Commerce Comm., 935 F.2d 728, 729, 734 (5th Cir. 1991) (denying attorney’s fees in action brought by Interstate Commerce Comm., 935 F.2d 728, 729, 734 (5th Cir. 1991) (denying attorney’s fees in action brought by
state-requester); Neal-Cooper Grain Co. v. Kissinger, 385 F. Supp. 769, 776 (D.D.C. 1974) (“A foreign government or state-requester); Neal-Cooper Grain Co. v. Kissinger, 385 F. Supp. 769, 776 (D.D.C. 1974) (“A foreign government or
an instrumentality thereof would appear to be a ‘public or private organization’ within the terms of [FOIA].”). instrumentality thereof would appear to be a ‘public or private organization’ within the terms of [FOIA].”). Cf.
Tembec, Inc. v. United States, 441 F. Supp. 2d 1302, 1322 (Ct. Int’l Trade 2006) (writing that “[i]n cases litigating Tembec, Inc. v. United States, 441 F. Supp. 2d 1302, 1322 (Ct. Int’l Trade 2006) (writing that “[i]n cases litigating
[FOIA] requests filed by foreign agencies and sovereigns, courts have generally assumed that such entities [FOIA] requests filed by foreign agencies and sovereigns, courts have generally assumed that such entities
are ‘persons’ within the meaning of 5 U.S.C. § 551”). However, as to foreign governments, FOIA prohibits “element[s] are ‘persons’ within the meaning of 5 U.S.C. § 551”). However, as to foreign governments, FOIA prohibits “element[s]
of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947)” from of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947)” from
disclosing agency records to foreign governmental entities or representatives thereof. 5 U.S.C. § 552(a)(3)(E) (citation disclosing agency records to foreign governmental entities or representatives thereof. 5 U.S.C. § 552(a)(3)(E) (citation
omitted); omitted); see All Party Parliamentary Grp. on Extraordinary Rendition v All Party Parliamentary Grp. on Extraordinary Rendition v. U.S. DOD, 754 F.3d 1047, 1053 (D.C. Cir. 2014) . DOD, 754 F.3d 1047, 1053 (D.C. Cir. 2014)
(holding that “FOIA requesters who have authority to file requests on behalf of foreign government entities are (holding that “FOIA requesters who have authority to file requests on behalf of foreign government entities are
‘representatives’ of such entities [under 5 U.S.C. § 552(a)(3)(E)] when they file requests of the sort they have authority ‘representatives’ of such entities [under 5 U.S.C. § 552(a)(3)(E)] when they file requests of the sort they have authority
to file”). to file”).
8381 See 5 U.S.C. § 551(2) (defining “person” under the APA as “an individual, partnership, corporation, association, or 5 U.S.C. § 551(2) (defining “person” under the APA as “an individual, partnership, corporation, association, or
public or private organization public or private organization other than an agency”) (emphasis added); ”) (emphasis added); cf. Ebling v. DOJ, 796 F. Supp. 2d 52, Ebling v. DOJ, 796 F. Supp. 2d 52, 6362
(D.D.C. 2011) (“Congress deliberately conferred the right to make a FOIA request upon ‘any person,’ a term that is (D.D.C. 2011) (“Congress deliberately conferred the right to make a FOIA request upon ‘any person,’ a term that is
defined broadly to include any individual or organization other than a federal agency” (internal citations omitted) defined broadly to include any individual or organization other than a federal agency” (internal citations omitted)
(quoting 5 U.S.C. §§ 551(2), 552(a)(3)(A))). (quoting 5 U.S.C. §§ 551(2), 552(a)(3)(A))).
8482 See, e.g., Doherty v. DOJ, 596 F. Supp. 423, 428 (S.D.N.Y. 1984) (holding that resident alien who entered country , Doherty v. DOJ, 596 F. Supp. 423, 428 (S.D.N.Y. 1984) (holding that resident alien who entered country
under a fraudulent passport was able to request records under FOIA); under a fraudulent passport was able to request records under FOIA); see also De Laurentiis v. Haig, 528 F. Supp. 601 De Laurentiis v. Haig, 528 F. Supp. 601
(E.D. Penn. 1981) (plaintiff in FOIA lawsuit was a foreign citizen residing in country of citizenship). (E.D. Penn. 1981) (plaintiff in FOIA lawsuit was a foreign citizen residing in country of citizenship). ~~But~~However, under the , under the
“fugitive disentitlement doctrine,” some courts have rejected FOIA claims asserted by fugitives where there was a “fugitive disentitlement doctrine,” some courts have rejected FOIA claims asserted by fugitives where there was a
sufficient relationship between the individual’s status as a fugitive and his FOIA lawsuit. sufficient relationship between the individual’s status as a fugitive and his FOIA lawsuit. See Maydack v. DOE, 150 F. Maydack v. DOE, 150 F.
App’x App’x ~~136~~137 (3d Cir. 2005) (affirming district court’s dismissal of fugitive’s FOIA lawsuit under the fugitive (3d Cir. 2005) (affirming district court’s dismissal of fugitive’s FOIA lawsuit under the fugitive
disentitlement doctrine); disentitlement doctrine); see also Lazaridis v. DOJ, 713 F. Supp. 2d 64, 69, 70 (D.D.C. 2010) (explaining that “[u]nder Lazaridis v. DOJ, 713 F. Supp. 2d 64, 69, 70 (D.D.C. 2010) (explaining that “[u]nder
the fugitive disentitlement doctrine, a court, in its discretion, may dismiss a civil action if the plaintiff is a fugitive, his the fugitive disentitlement doctrine, a court, in its discretion, may dismiss a civil action if the plaintiff is a fugitive, his
(continued...) Congressional Research Service 9 link to page 11 link to page 11 link to page 10 link to page 13 The Freedom of Information Act (FOIA): A Legal Overview that the requester’s identity generally does not factor into whether records are subject to disclosure, nor is a requester generally required to supply a reason to an agency for his or her request.83 Access to Government Information Under FOIA FOIA sets forth a three-part system for disclosing government information.84 FOIA’s two affirmative disclosure requirements require agencies to disclose specific categories of information to the public either through publication in the Federal Register or electronic disclosure by, for instance, posting the information on the agency’s website.85 The third request-based disclosure provision requires that, “[e]xcept with respect to the records made available” pursuant to FOIA’s affirmative disclosure requirements, agencies disclose covered records after receiving a request from “any person.”86 Affirmative Disclosure While FOIA may be known predominately for its request-driven system of disclosure,87 the statute also contains affirmative disclosure provisions that require federal agencies to proactively disseminate to the public certain agency records. FOIA imposes two affirmative (also known as mandatory or proactive)88 disclosure obligations. Under the first requirement—codified in subsection (a)(1) of § 552—agencies must publish certain important government materials—including “substantive rules of general applicability” and “rules of procedure”—in the Federal Register.89 The second affirmative disclosure requirement—codified in subsection (a)(2) of fugitive status has a connection to the present proceedings, and dismissal ‘is necessary to effectuate the concerns underlying the ..~~fugitive status has a connection to the present proceedings, and dismissal ‘is necessary to effectuate the concerns~~
~~underlying the . .~~ . doctrine,’” but denying DOJ’s motion to dismiss fugitive’s FOIA lawsuit “[i]n the absence of a . doctrine,’” but denying DOJ’s motion to dismiss fugitive’s FOIA lawsuit “[i]n the absence of a
demonstrable connection between [the requester’s] fugitive status and these FOIA proceedings” (ellipses in original) demonstrable connection between [the requester’s] fugitive status and these FOIA proceedings” (ellipses in original)
(citations omitted) (quoting Magluta v. Samples, 162 F.3d 662, 664 (11th Cir. 1998))(citations omitted) (quoting Magluta v. Samples, 162 F.3d 662, 664 (11th Cir. 1998))). . See DOJ GUIDE, PROCEDURAL DOJ GUIDE, PROCEDURAL
REQUIREMENTS, REQUIREMENTS, supra no note 61, at 19 & n.90. at 19 & n.90.
8583 See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 170 (2004) (“As a general rule, withholding Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 170 (2004) (“As a general rule, withholding
information under FOIA cannot be predicated on the identity of the requester.”); information under FOIA cannot be predicated on the identity of the requester.”); id. at 172 (“[A]s a general rule, when . at 172 (“[A]s a general rule, when
documents are within FOIA’s disclosure provisions, citizens should not be required to explain why they seek the documents are within FOIA’s disclosure provisions, citizens should not be required to explain why they seek the
information. A person requesting the information needs no preconceived idea of the uses the data might serve. The information. A person requesting the information needs no preconceived idea of the uses the data might serve. The
information belongs to citizens to do with as they choose. Furthermore, as we have noted, the disclosure does not information belongs to citizens to do with as they choose. Furthermore, as we have noted, the disclosure does not
depend on the identity of the requester. As a general rule, if the information is subject to disclosure, it belongs to all.”); depend on the identity of the requester. As a general rule, if the information is subject to disclosure, it belongs to all.”);
see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, ~~143~~144 n.10 (1975) (explaining that a requester’s “rights under n.10 (1975) (explaining that a requester’s “rights under
[FOIA] are neither increased nor decreased by reason of the fact that it claims an interest in [records] greater than that [FOIA] are neither increased nor decreased by reason of the fact that it claims an interest in [records] greater than that
shared by the average member of the public”). shared by the average member of the public”). See DOJ GUIDE, PROCEDURAL REQUIREMENTS, DOJ GUIDE, PROCEDURAL REQUIREMENTS, supra no note 61, at 21 at 21-–22. 22.
The identity of a requester does factor, however, in the assessment of fees under FOIA. The identity of a requester does factor, however, in the assessment of fees under FOIA. See 5 U.S.C. § 552(a)(4)(A)(ii). 5 U.S.C. § 552(a)(4)(A)(ii).
For information on FOIA fees, see CRS In Focus IF11272, For information on FOIA fees, see CRS In Focus IF11272, Freedom of Information Act Fees for Government
Information, by Meghan M. Stuessy, by Meghan M. Stuessy.
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~~Access to Government Information Under FOIA~~
~~FOIA sets forth a three-part system for disclosing government information.86 The first two~~
~~disclosure schemes require agencies to affirmatively disclose specific categories of information to~~
~~the public, either through publication in the Federal Register or electronic disclosure.87 The third~~
~~disclosure provision requires that, “[e]xcept with respect to the records made available” pursuant~~
~~to FOIA’s affirmative disclosure requirements, agencies disclose covered records after receiving~~
~~a request from “any person.”88~~
~~Affirmative Disclosure~~
~~While FOIA may be known predominately for its request-driven system of disclosure,89 the~~
~~statute also contains affirmative disclosure provisions that require federal agencies to proactively~~
~~disseminate to the public certain agency records. FOIA imposes two affirmative (also known as~~
~~mandatory or proactive)90 disclosure obligations. Under the first requirement—codified in~~
~~subsection (a)(1) of § 552—agencies must publish certain important government materials—~~
~~including “substantive rules of general applicability” and “rules of procedure”—in the Federal~~
~~Register.91 The second affirmative disclosure requirement—codified in subsection (a)(2) of §~~
~~552—requires agencies to provide electronic access to a separate set of agency materials that~~
~~consists of, among other things, final agency adjudicative opinions and certain “frequently~~
~~requested” records.92~~
~~Publication in the Federal Register~~
~~Under § 552(a)(1), agencies must publish certain information “in the Federal Register for the~~
~~guidance of the public.”93 The provision seeks “to enable the public ‘readily to gain access to the~~
~~information necessary to deal effectively and upon equal footing with the Federal agencies.’”94 It~~
~~instructs agencies to publish the following:~~

86 (2022). 84 Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (noting that FOIA “makes Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (noting that FOIA “makes
available to any person all agency records, which it divides into three categories: [1] some must be currently published available to any person all agency records, which it divides into three categories: [1] some must be currently published
in the Federal Register; [2] others must be promptly [published] or made publicly available and indexed; and [3] all in the Federal Register; [2] others must be promptly [published] or made publicly available and indexed; and [3] all
others must be promptly furnished on request”) (internal others must be promptly furnished on request”) (internal ~~quotation marks and~~ citations omitted) (third alteration in citations omitted) (third alteration in
original). original).
8785 5 U.S.C. § 552(a)(1) 5 U.S.C. § 552(a)(1)-–(2). (2).
8886 Id. § 552(a)(3)(A), 4(B). § 552(a)(3)(A), 4(B). See supra “Agency Records” & “Any Person”
8987 See CREW v. DOJ, 846 F.3d 1235, 1240 (D.C. Cir. 2017) (stating that provision governing agencies’ response- CREW v. DOJ, 846 F.3d 1235, 1240 (D.C. Cir. 2017) (stating that provision governing agencies’ response-
driven obligation under FOIA is FOIA’s “most familiar provision”). driven obligation under FOIA is FOIA’s “most familiar provision”).
9088 See DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, PROACTIVE DISCLOSURES DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, PROACTIVE DISCLOSURES~~, at~~ 1 (Aug. 1 (Aug.
4, 2020) [hereinafter DOJ GUIDE, PROACTIVE DISCLOSURES], https://www.justice.gov/oip/foia-4, 2020) [hereinafter DOJ GUIDE, PROACTIVE DISCLOSURES], https://www.justice.gov/oip/foia-
guide/proactive_disclosures/guide/proactive_disclosures/~~download.~~
91dl?inline. 89 5 U.S.C. § 552(a)(1) 5 U.S.C. § 552(a)(1); id. ~~§ 552~~, (a)(1)(C), (D). Congressional Research Service 10 link to page 14 The Freedom of Information Act (FOIA): A Legal Overview § 552—requires agencies to provide electronic access to a separate set of agency materials that consists of, among other things, final agency adjudicative opinions and certain “frequently requested” records.90 Publication in the Federal Register Under § 552(a)(1), agencies must publish certain information “in the Federal Register for the guidance of the public.”91 The provision seeks “to enable the public ‘readily to gain access to the information necessary to deal effectively and upon equal footing with the Federal agencies.’”92 It instructs agencies to publish the following: ~~(a)(1)(C), (D).~~
~~92 Id. § 552(a)(2); id. § 552(a)(2)(A), (D).~~
~~93 Id. § 552(a)(1).~~
~~94 Ramsey Clark, Attorney General’s Memorandum on the Public Information Section of the Administrative Procedure~~
~~Act (1967), in 20 ADMIN. L. REV. 263, 271 (1968) (quoting S. REP. NO. 1219, at 3 (1964)).~~
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(1) descriptions of agency organization and information regarding how, where, and (1) descriptions of agency organization and information regarding how, where, and
from whom “the public may obtain information, make submittals or requests, or from whom “the public may obtain information, make submittals or requests, or
obtain decisions”;obtain decisions”;9593
(2) information on how agency “functions are channeled and determined, including (2) information on how agency “functions are channeled and determined, including
the nature and requirements of all formal and informal procedures available”; the nature and requirements of all formal and informal procedures available”;9694
(3) procedural rules, descriptions of available agency forms “or the places at which (3) procedural rules, descriptions of available agency forms “or the places at which
forms may be obtained, and instructions as to the scope and contents of all forms may be obtained, and instructions as to the scope and contents of all
papers, reports, or examinations”;papers, reports, or examinations”;9795
(4) “substantive rules of general applicability adopted as authorized by law,” as well (4) “substantive rules of general applicability adopted as authorized by law,” as well
as agency “statements of general policy or interpretations of general as agency “statements of general policy or interpretations of general
applicability”;applicability”;9896 and and
(5) every “amendment, revision, or repeal of the foregoing.” (5) every “amendment, revision, or repeal of the foregoing.”9997
FOIA imposes a penalty for an agency’s failure to publish the above information FOIA imposes a penalty for an agency’s failure to publish the above information~~, providing~~. It provides that that
no person shall “in any manner be required to resort to, or be adversely affected by, a matter no person shall “in any manner be required to resort to, or be adversely affected by, a matter
required to be published in the Federal Register and not so publishedrequired to be published in the Federal Register and not so published” unless the affected party received “actual and timely notice of the terms thereof.”98~~.”100~~ In other words, an In other words, an
agency may not enforce any material against an affected party that the agency did not publish in agency may not enforce any material against an affected party that the agency did not publish in
the Federal the Federal ~~Register~~Register as required under subsection (a)(1) as required under subsection (a)(1)~~, unless~~ if the affected party did not otherwise receive actual and timely notice.99 90 Id. § 552(a)(2), (a)(2)(A), (D). 91 Id. § 552(a)(1). 92 Ramsey Clark, Att’y Gen., Attorney General’s Memorandum on the Public Information Section of the Administrative Procedure Act 3 (1967) (quoting S. REP. NO. 1219 (1964)). 93 5 U.S.C. § 552(a)(1)(A). 94 Id. § 552(a)(1)(B). 95 Id. § 552(a)(1)(C). 96 Id. § 552(a)(1)(D). 97 ~~the affected party received “actual~~
~~and timely notice of the terms thereof.”101~~
~~Courts have held that FOIA authorizes judicial review of an agency’s withholding of (a)(1)~~
~~materials.102 However, available remedies in such cases may be limited. In~~ ~~Kennecott Utah~~

~~95 5 U.S.C. § 552(a)(1)(A).~~
~~96 Id. § 552(a)(1)(B).~~
~~97 Id. § 552(a)(1)(C).~~
~~98 Id. § 552(a)(1)(D).~~
99 Id. § 552(a)(1)(E). § 552(a)(1)(E). See generally DOJ GUIDE, PROACTIVE DISCLOSURES, DOJ GUIDE, PROACTIVE DISCLOSURES, supra no note 9088, at 2. at 2.
~~100~~98 Id. § 552(a)(1). § 552(a)(1). See S. REP. NO. 813, at 6 (1965) (stating that “[t]he new sanction imposed for failure to publish the S. REP. NO. 813, at 6 (1965) (stating that “[t]he new sanction imposed for failure to publish the
matters enumerated in” the Federal Register publication provision “gives added incentive to the agencies to publish the matters enumerated in” the Federal Register publication provision “gives added incentive to the agencies to publish the
required material”); H.R. REP. NO. 1497, at 7 (1966) (writing that the sanction is “[a]n added incentive for agencies to required material”); H.R. REP. NO. 1497, at 7 (1966) (writing that the sanction is “[a]n added incentive for agencies to
publish necessary details about their official activities in the Federal Register”). publish necessary details about their official activities in the Federal Register”).
~~101~~99 5 U.S.C. § 552(a)(1); Emily S. Bremer, 5 U.S.C. § 552(a)(1); Emily S. Bremer, American and European Perspectives on Private Standards in Public Law, ,
91 TUL. L. REV. 325, 346 (2016) (explaining that, “[i]f an agency does not fulfill the [Federal Register] publication 91 TUL. L. REV. 325, 346 (2016) (explaining that, “[i]f an agency does not fulfill the [Federal Register] publication
requirement, it will be prevented from enforcing the nonpublished material against any person or entity that did not requirement, it will be prevented from enforcing the nonpublished material against any person or entity that did not
have actual notice of the material in question”); have actual notice of the material in question”); see Appalachian Power Co. v. Train, 566 F.2d 451, 455Appalachian Power Co. v. Train, 566 F.2d 451, 455-–56 (4th Cir. 56 (4th Cir.
1977); 1977); see also United States v. San Juan Lumber Co., 313 F. Supp. 703, 706United States v. San Juan Lumber Co., 313 F. Supp. 703, 706-–08 (D. Col. 1969) (holding that failure to 08 (D. Col. 1969) (holding that failure to
~~publish in the~~ (continued...) Congressional Research Service 11 link to page 15 link to page 15 The Freedom of Information Act (FOIA): A Legal Overview Courts have held that FOIA authorizes judicial review of an agency’s withholding of materials subject to subsection (a)(1).100 However, available remedies in such cases may be limited. In Kennecott Utah Copper Corporation v. Department of the Interior (DOI), the D.C. Circuit held that FOIA does not authorize reviewing courts to order an agency to publish materials in the Federal Register.101 The court explained that FOIA’s judicial review provision “allows district courts to order ‘the production of any agency records improperly withheld from the complainant,’ not agency records withheld from the public.”102 Whereas, as explained by the court, “[p]roviding documents to the individual fully relieves whatever informational injury may have been suffered by that particular complainant,” requiring “publication goes well beyond that need.”103 The court explained that the penalty in subsection (a)(1), which provides that materials required to be published in the Federal Register that an agency has not so published are generally unenforceable,104 is “an alternative means for encouraging agencies to fulfill their obligation to publish materials in the Federal Register” and “gives agencies a powerful incentive to publish any [(a)(1) materials] they expect to enforce.”105 Electronic Disclosure FOIA’s second affirmative disclosure provision, subsection (a)(2) of § 552 (often referred to as the “reading-room provision”),106 directs agencies to “make available for public inspection in an publish in the Federal Register~~Federal Register~~ was not a defense where the defendant had received actual notice of the Federal Trade was not a defense where the defendant had received actual notice of the Federal Trade
Commission’s resolution authorizing an investigation). Commission’s resolution authorizing an investigation).
~~Section~~ 5 U.S.C. § 552(a)(1) also states that “matter reasonably available to the class of persons affected thereby is 552(a)(1) also states that “matter reasonably available to the class of persons affected thereby is deemed
published in the Federal Register when incorporated by reference therein with the approval of the Director of the in the Federal Register when incorporated by reference therein with the approval of the Director of the
Federal Register.” Federal Register.” ~~5 U.S.C. § 552(a)(1)~~ (emphasis added). This provision allows agencies to integrate external (emphasis added). This provision allows agencies to integrate external
publications into agency regulations simply by referring to—as opposed to reprinting—the outside material in the publications into agency regulations simply by referring to—as opposed to reprinting—the outside material in the
Federal Register, as long as the Office of the Federal Register approves of the incorporation and the matter Federal Register, as long as the Office of the Federal Register approves of the incorporation and the matter
incorporated is “reasonably available.” incorporated is “reasonably available.” Id. This authorization is intended to effectuate Congress’s intent to ensure the This authorization is intended to effectuate Congress’s intent to ensure the
Federal RegisterFederal Register is “kept down to a manageable size.” S. REP. NO. 1219, at 4 (1964); is “kept down to a manageable size.” S. REP. NO. 1219, at 4 (1964); see also S. REP. NO. 813, at 6 S. REP. NO. 813, at 6
(1965) (writing that “there have been few complaints about omission from the Federal Register of necessary official (1965) (writing that “there have been few complaints about omission from the Federal Register of necessary official
material” and that, “[i]n fact, what complaints there have been have been more on the side of too much publication material” and that, “[i]n fact, what complaints there have been have been more on the side of too much publication
rather than too little.”). For more on incorporation by reference, see Daniel J. Sheffner, rather than too little.”). For more on incorporation by reference, see Daniel J. Sheffner, Integrating Technical
Standards into Federal Regulations: Incorporation by Reference, , in 2 THE CAMBRIDGE HANDBOOK OF TECHNICAL THE CAMBRIDGE HANDBOOK OF TECHNICAL
STANDARDIZATION LAW: FURTHER INTERSECTIONS OF PUBLIC AND PRIVATE LAW 108STANDARDIZATION LAW: FURTHER INTERSECTIONS OF PUBLIC AND PRIVATE LAW 108-–23 (Jorge Contreras, ed., 2019). 23 (Jorge Contreras, ed., 2019).
~~102~~100 See CREW v. DOJ, 846 F.3d 1235, 1240 (D.C. Cir. 2017) (“Our precedent makes clear that FOIA’s remedial CREW v. DOJ, 846 F.3d 1235, 1240 (D.C. Cir. 2017) (“Our precedent makes clear that FOIA’s remedial
provision .provision . . .. governs judicial review of .. governs judicial review of . . .. requests for information under section[] 552(a)(1). requests for information under section[] 552(a)(1) ~~. . . .~~.... ”) (first ellipses in original~~”) (first ellipses in~~
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Copper Corporation v. Department of the Interior (DOI), the D.C. Circuit held that FOIA does
~~not authorize reviewing courts, as a remedy, to order an agency to publish materials in the Federal~~
~~Register.103 The court explained that FOIA’s judicial review provision “allows district courts to~~
~~order ‘the production of any agency records improperly withheld from the complainant,’ not~~
~~agency records withheld from the public.”104 Whereas, as explained by the court, “[p]roviding~~
~~documents to the individual fully relieves whatever informational injury may have been suffered~~
~~by that particular complainant,” requiring “publication goes well beyond that need.”105 The court~~
~~explained that the penalty in subsection (a)(1), which provides that materials required to be~~
~~published in the Federal Register that an agency has not so published generally are~~
~~unenforceable,106 is “an alternative means for encouraging agencies to fulfill their obligation to~~
~~publish materials in the Federal Register” and “gives agencies a powerful incentive to publish any~~
~~[(a)(1) materials] they expect to enforce.”107~~
~~Electronic Disclosure~~
~~FOIA’s second affirmative disclosure provision does not require disclosure in a particular~~
~~publication, as does subsection (a)(1). Instead, subsection (a)(2) of § 552 (often referred to as the~~
~~“reading-room provision”)108 directs agencies to “make available for public inspection in an~~
~~electronic format” certain information, unless the information is “promptly published and copies~~
~~[are] offered for sale.”109 The following information must be electronically disclosed under~~
~~FOIA’s second affirmative disclosure provision:~~
~~(1) “final opinions . . ., as well as orders, made in the adjudication of cases”;110~~

~~original) (internal quotation marks omitted~~) (quoting Kennecott Utah Copper Corp. v. DOI, 88 F.3d 1191, 1202 (D.C. ) (quoting Kennecott Utah Copper Corp. v. DOI, 88 F.3d 1191, 1202 (D.C.
Cir. 1996))Cir. 1996)))); Campaign for Accountability v. DOJ, 278 F. Supp. 3d 303, ; Campaign for Accountability v. DOJ, 278 F. Supp. 3d 303, ~~307~~306 (D.D.C. 2017) (explaining that “[a] (D.D.C. 2017) (explaining that “[a]
FOIA complaint that seeks judicial review of an agency’s withholding of records can allege that the government’s FOIA complaint that seeks judicial review of an agency’s withholding of records can allege that the government’s
withholding violates any one of the statute’s .withholding violates any one of the statute’s . . .. disclosure requirements,” including the requirement contained in . disclosure requirements,” including the requirement contained in
“section[] 552(a)(1)”);“section[] 552(a)(1)”); cf. CREW v. DOJ, 922 F.3d 480, 486 (D.C. Cir. 2019) (“An agency withholds its records CREW v. DOJ, 922 F.3d 480, 486 (D.C. Cir. 2019) (“An agency withholds its records
‘improperly’ if it fails to comply with one of FOIA’s ‘mandatory disclosure requirements.’” (quoting DOJ v. Tax ‘improperly’ if it fails to comply with one of FOIA’s ‘mandatory disclosure requirements.’” (quoting DOJ v. Tax
Analysts, 492 U.S. 136, 150 (1989), and 5 U.S.C. § 552(a)(4)(B))Analysts, 492 U.S. 136, 150 (1989), and 5 U.S.C. § 552(a)(4)(B))). .
~~103~~101 Kennecott, 88 F.3d at 1202, 88 F.3d at 1202-–03. 03.
~~104~~102 Id. at 1203 (quoting 5 U.S.C. § 552(A)(4)(B)) (emphasis in original). at 1203 (quoting 5 U.S.C. § 552(A)(4)(B)) (emphasis in original).
~~105~~103 Id.
~~106~~104 See supra text accompanying note text accompanying notes ~~100-101.~~
~~107~~98–99. 105 Kennecott, 88 F.3d at 1203. , 88 F.3d at 1203.
~~108~~106 See, e.g., CREW v. DOJ, 922 F.3d 480, 483 (D.C. Cir. 2019). Agencies used to make materials covered by , CREW v. DOJ, 922 F.3d 480, 483 (D.C. Cir. 2019). Agencies used to make materials covered by
subsection (a)(2) available in physical “reading rooms.” Upon enactment of the Electronic Freedom of Information Act subsection (a)(2) available in physical “reading rooms.” Upon enactment of the Electronic Freedom of Information Act
Amendments of 1996 (E-FOIA Amendments), Pub. L. No. 104-231, 110 Stat. 3048Amendments of 1996 (E-FOIA Amendments), Pub. L. No. 104-231, 110 Stat. 3048 (1996), which required agencies to make , which required agencies to make
subsection (a)(2) materials available “by electronic means,” the locations within agency websites housing (a)(2) subsection (a)(2) materials available “by electronic means,” the locations within agency websites housing (a)(2)
materials became known as “electronic reading rooms.” materials became known as “electronic reading rooms.” See Daniel J. Sheffner, Daniel J. Sheffner, Access to Adjudication Materials on
~~Federal Agency Websites, 51 AKRON L. REV. 447, 454-55 (2017); see also DOJ,~~ ~~OIP Guidance: Agency FOIA~~
~~Websites 2.0~~ ~~(last updated Nov. 30, 2017) (explaining that the 1996 E-FOIA Amendments “required agencies to use~~
~~electronic information technology to enhance the public availability of their FOIA ‘reading room’ records”),~~
~~https://www.justice.gov/oip/oip-guidance/OIP%20Guidance%3A%20%20Agency%20FOIA%20Websites%202.0.~~
~~DOJ now refers to such website locations as “FOIA Libraries.” See DOJ GUIDE, PROACTIVE DISCLOSURES, supra note~~
~~90, at 6 (explaining that what it now refers to as a “FOIA Library” was “previously referred to as an ‘electronic~~
~~Reading Room’”).~~
~~109 5 U.S.C. § 552(a)(2). The provision requires that agencies make covered information available “in accordance with~~
~~published rules.” Id. § 552(a)(2).~~
110 Id. § 552(a)(2)(A). This provision provides that “[f]inal opinions” include “concurring and dissenting opinions.” Id.
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(continued...) Congressional Research Service 12 link to page 14 link to page 14 The Freedom of Information Act (FOIA): A Legal Overview electronic format” certain information, unless the information is “promptly published and copies [are] offered for sale.”107 The following information must be electronically disclosed under FOIA’s second affirmative disclosure provision: (1) “final opinions ... , as well as orders, made in the adjudication of cases”;108 (2) policy statements and interpretations not appearing in the Federal Register; (2) policy statements and interpretations not appearing in the Federal Register;~~111~~109
(3) “administrative staff manuals and instructions to staff that affect a member of the (3) “administrative staff manuals and instructions to staff that affect a member of the
public”; public”;~~112~~110
(4) copies of records that had been released in response to a FOIA request and that (4) copies of records that had been released in response to a FOIA request and that
(a) “the agency determines have become or are likely to become the subject of (a) “the agency determines have become or are likely to become the subject of
subsequent requests for substantially the same records” due to the nature of the subsequent requests for substantially the same records” due to the nature of the
records’ subject or (b) “have been requested 3 or more times”;records’ subject or (b) “have been requested 3 or more times”;~~113~~111 and and
(5) indexes of such previously released records. (5) indexes of such previously released records.~~114~~112
The 1966 House report The 1966 House report ~~underlying~~accompanying FOIA explained that this provision was intended to open up to FOIA explained that this provision was intended to open up to
the public the “thousands of orders, opinions, statements, and instructions issued by hundreds of the public the “thousands of orders, opinions, statements, and instructions issued by hundreds of
agencies,” information that the report described as constituting “the bureaucracy[’s] agencies,” information that the report described as constituting “the bureaucracy[’s] ~~. .~~ ... own form . own form
of case law.”of case law.”~~115~~113 In that vein, the Supreme Court has explained that FOIA’s second affirmative In that vein, the Supreme Court has explained that FOIA’s second affirmative
disclosure provision “represents a strong congressional aversion to ‘secret [agency] law.’”disclosure provision “represents a strong congressional aversion to ‘secret [agency] law.’”~~116~~
114 Materials subject to subsection (a)(2) are now generally made accessible on agency Materials subject to subsection (a)(2) are now generally made accessible on agency ~~websites.117~~
~~In addition to public dissemination of the above materials, subsection (a)(2) requires that agencies~~
~~“maintain and make available for public inspection in an electronic format” indexes of (a)(2)~~
~~material.118 And an agency may not rely on, use, or cite as precedent a “final order, opinion,~~

~~111 Id. § 552(a)(2)(B).~~
~~112 Id. § 552(a)(2)(C).~~
~~113 Id. § 552(a)(2)(D).~~
~~114 Id. § 552(a)(2)(E). See generally DOJ GUIDE, PROACTIVE DISCLOSURES, supra note 90,~~ ~~at 2-~~ Federal Agency Websites, 51 AKRON L. REV. 447, 454–55 (2017); see also OIP, OIP Guidance: Agency FOIA Websites 2.0, DOJ (last updated Dec. 2, 2022), https://www.justice.gov/oip/oip-guidance/OIP%20Guidance%3A%20%20Agency%20FOIA%20Websites%202.0 (explaining that the 1996 E-FOIA Amendments “required agencies to use electronic information technology to enhance the public availability of their FOIA ‘reading room’ records”). DOJ now refers to such website locations as “FOIA Libraries.” See DOJ GUIDE, PROACTIVE DISCLOSURES, supra note 88, at 6 (explaining that what it now refers to as a “FOIA Library” was “previously referred to as an ‘electronic Reading Room’”). 107 5 U.S.C. § 552(a)(2). The provision requires that agencies make covered information available “in accordance with published rules.” Id. § 552(a)(2). 108 Id. § 552(a)(2)(A). This provision provides that “[f]inal opinions” include “concurring and dissenting opinions.” Id. 109 Id. § 552(a)(2)(B). 110 Id. § 552(a)(2)(C). 111 Id. § 552(a)(2)(D). 112 Id. § 552(a)(2)(E). See generally DOJ GUIDE, PROACTIVE DISCLOSURES, supra note 88, at 2–4.4. Subsection (a)(2) Subsection (a)(2)
authorizes agencies to “delete identifying details” from (a)(2) materials in order “to prevent a clearly unwarranted authorizes agencies to “delete identifying details” from (a)(2) materials in order “to prevent a clearly unwarranted
invasion of personal privacy.” invasion of personal privacy.” Id. An agency must generally explain its reason for doing so and indicate “the extent of An agency must generally explain its reason for doing so and indicate “the extent of
such deletion .such deletion . . .. on the portion of the record which is made available or published.” . on the portion of the record which is made available or published.” See id. (“[I]n each case the (“[I]n each case the
justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the
portion of the record which is made available or published, unless including that indication would harm an interest portion of the record which is made available or published, unless including that indication would harm an interest
protected by the exemption in subsection (b) under which the deletion is made. If technically feasible, the extent of the protected by the exemption in subsection (b) under which the deletion is made. If technically feasible, the extent of the
deletion shall be indicated at the place in the record where the deletion was made.”). deletion shall be indicated at the place in the record where the deletion was made.”).
~~115~~113 H.R. REP. NO. 1497, at 7 (1966). In the 1966 act, this provision only governed the disclosure of adjudicative H.R. REP. NO. 1497, at 7 (1966). In the 1966 act, this provision only governed the disclosure of adjudicative
opinions and orders, policy statements and interpretations, and staff manuals and instructions (the first three types of opinions and orders, policy statements and interpretations, and staff manuals and instructions (the first three types of
materials listed above). materials listed above). See An Act to amend section 3 of the Administrative Procedure Act, Pub. L. No. 89-487, 80 Stat. 250, 250Pub. L. No. 89-487, 80 Stat. 250, 250~~-51 (July 4,~~ –51 (1966). The previously-requested-records 1966). The previously-requested-records
requirement and the related index requirement pertaining to such records, requirement and the related index requirement pertaining to such records, see 5 U.S.C. § 552(a)(2)(D) 5 U.S.C. § 552(a)(2)(D)-–(E), were added (E), were added
to FOIA in 1996. to FOIA in 1996. See E-FOIA Amendments, Pub. L. No. 104-231, § 4, 110 Stat. at 3049 E-FOIA Amendments, Pub. L. No. 104-231, § 4, 110 Stat. at 3049 (1996). The “requested 3 or more . The “requested 3 or more
times” prong of § 552(a)(2)(D) was added in 2016. times” prong of § 552(a)(2)(D) was added in 2016. See FOIA Improvement Act of 2016, Pub. L. No. 114-185, § 2, 130 FOIA Improvement Act of 2016, Pub. L. No. 114-185, § 2, 130
Stat. 538, 538Stat. 538, 538 (2016). 114.
~~116~~ NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975) (alteration in original) (quoting Kenneth Culp Davis, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975) (alteration in original) (quoting Kenneth Culp Davis, The
Information Act: A Preliminary Analysis, 34 U. CHI. L. REV. 761, 797 (1967)). , 34 U. CHI. L. REV. 761, 797 (1967)).
~~117 See DOJ GUIDE, PROACTIVE DISCLOSURES, supra note 90, at 6 (“Agencies often accomplish this electronic~~
~~availability requirement by posting records on their FOIA websites in a designated area known as a ‘FOIA Library’. . .~~
~~.”); see, e.g., 40 C.F.R. § 2.101(c) (“All records created by [the Environmental Protection Agency (EPA)] on or after~~
~~November 1, 1996, which the FOIA requires an agency to make regularly available for public inspection and copying,~~
~~will be made available electronically through EPA’s website, located at http://www.epa.gov, or, upon request, through~~
~~other electronic means.”).~~
~~118 5 U.S.C. § 552(a)(2) (“Each agency shall . . . maintain and make available for public inspection in an electronic~~
~~format current indexes providing identifying information for the public as to any matter issued, adopted, or~~
~~promulgated after July 4, 1967, and required by this paragraph to be made available or published.”);~~ ~~see also id.~~
~~(stating that agencies must “promptly publish . . . and distribute (by sale or otherwise) copies of each index or~~
~~supplements thereto unless it determines by order published in the Federal Register that the publication would be~~
~~unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a~~
~~cost not to exceed the direct cost of duplication”).~~
~~Congressional Research Service~~
14

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Congressional Research Service 13 link to page 14 link to page 15 link to page 10 link to page 11 The Freedom of Information Act (FOIA): A Legal Overview websites.115 In addition to public dissemination of the above materials, subsection (a)(2) requires that agencies “maintain and make available for public inspection in an electronic format” indexes of (a)(2) material.116 Like Section (a)(1), Section (a)(2) bars an agency from using or citing as precedent a “final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the statement of policy, interpretation, or staff manual or instruction that affects a member of the
public” unless the agency has (1) indexed the material and published or made it available, or (2) public” unless the agency has (1) indexed the material and published or made it available, or (2)
given the affected party “actual and timely notice of the terms” of such material.given the affected party “actual and timely notice of the terms” of such material.~~119~~117
As with (a)(1) materials, As with (a)(1) materials,~~120~~118 FOIA authorizes judicial review of challenges to the availability of FOIA authorizes judicial review of challenges to the availability of
materials subject to disclosure under subsection (a)(2).materials subject to disclosure under subsection (a)(2).~~121~~119 Courts do not appear to agree, however, Courts do not appear to agree, however,
whether they have authority under FOIA to order agencies to make (a)(2) records available in whether they have authority under FOIA to order agencies to make (a)(2) records available in
agency reading rooms, or whether their authority under the statute is limited to ordering the agency reading rooms, or whether their authority under the statute is limited to ordering the
production of records to individual complainants.production of records to individual complainants.~~122~~120
Request-Driven Disclosure
Under Under the two affirmative disclosure provisions discussed above, agencies must proactively
~~disclose specific types of information.123 By contrast, under~~ FOIA’s third system of disclosure, FOIA’s third system of disclosure,
agencies agencies must disclose covered records not “made available under” the affirmative disclosure disclose covered records not “made available under” the affirmative disclosure
provisionsprovisions, discussed above, on a case-by-case basis after receiving a request. on a case-by-case basis after receiving a request.~~124~~121 As discussed below, FOIA imposes As discussed below, FOIA imposes
certain procedural requirements on requesters and agencies in making and responding to requests certain procedural requirements on requesters and agencies in making and responding to requests
~~for records.125 And, also as discussed below, the act allows requesters to internally appeal agency~~
~~decisions to withhold records, a process requesters generally must take advantage of prior to~~
~~seeking review in federal court.126~~
~~Section 552(a)(3)(A) of title 5 of the U.S. Code governs the production of records requested~~
~~under FOIA. Under that section, “each agency . . . shall make . . . records promptly available to~~
~~any person” after receiving a FOIA request.127 An agency must respond to a request that satisfies~~
~~two requirements. First, a request must “reasonably describe[]” the records sought.128 The House~~

119 Id.
~~120~~for records.122 As also discussed 115 See DOJ GUIDE, PROACTIVE DISCLOSURES, supra note 88, at 6 (“Agencies often accomplish this electronic availability requirement by posting records on their FOIA websites in a designated area known as a ‘FOIA Library’.... ”); see, e.g., 40 C.F.R. § 2.101(c) (“All records created by [the Environmental Protection Agency (EPA)] on or after November 1, 1996, which the FOIA requires an agency to make regularly available for public inspection and copying, will be made available electronically through EPA’s website, located at http://www.epa.gov, or, upon request, through other electronic means.”). 116 5 U.S.C. § 552(a)(2) (“Each agency shall ... maintain and make available for public inspection in an electronic format current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published.”); see also id. (stating that agencies must “promptly publish ... and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication”). 117 Id. 118 Id. § 552(a)(1); § 552(a)(1); see supra “Publication in the Federal Register. 119.”
~~121~~ See CREW v. DOJ, 846 F.3d 1235, 1240 (D.C. Cir. 2017) (“Our precedent makes clear that FOIA’s remedial CREW v. DOJ, 846 F.3d 1235, 1240 (D.C. Cir. 2017) (“Our precedent makes clear that FOIA’s remedial
provision .provision . . .. governs judicial review of .. governs judicial review of . . .. requests for information under section[] 552(a). requests for information under section[] 552(a)~~. . . (2) . . . .~~ ... (2).... ”) (first ellipses ”) (first ellipses
in in original)~~original) (internal quotation marks omitted)~~ (quoting Kennecott Utah Copper Corp. v. DOI, 88 F.3d 1191, 1202 (quoting Kennecott Utah Copper Corp. v. DOI, 88 F.3d 1191, 1202
(D.C. Cir. 1996))(D.C. Cir. 1996)))). .
~~122~~120 Compare id. at at ~~124~~1243 (holding that “a court has no authority under FOIA to issue an injunction mandating that an (holding that “a court has no authority under FOIA to issue an injunction mandating that an
agency ‘make available for public inspection’ documents subject to” § 552(a)(2), but that “nothing in [its precedent] agency ‘make available for public inspection’ documents subject to” § 552(a)(2), but that “nothing in [its precedent]
prevents a district court from, consistent with [FOIA’s judicial review provision], ordering an agency to provide prevents a district court from, consistent with [FOIA’s judicial review provision], ordering an agency to provide to the
plaintiff documents covered by” § 552(a)(2)) documents covered by” § 552(a)(2)) with Animal Legal Def. Fund v. USDA, 935 F.3d 858, 869 (9th Cir. Animal Legal Def. Fund v. USDA, 935 F.3d 858, 869 (9th Cir.
2019) (holding that FOIA’s judicial review “provision cloaks district courts with the authority to order an agency to 2019) (holding that FOIA’s judicial review “provision cloaks district courts with the authority to order an agency to
post records in an online reading room” under § 552(a)(2)). post records in an online reading room” under § 552(a)(2)).
~~123 See supra “Affirmative Disclosure.”~~
~~124~~121 5 U.S.C. § 552(a)(3)(A), (a)(4)(B); 5 U.S.C. § 552(a)(3)(A), (a)(4)(B); see CREW v. DOJ, 922 F.3d 480, 484 (D.C. Cir. 2019) (“Unlike its more CREW v. DOJ, 922 F.3d 480, 484 (D.C. Cir. 2019) (“Unlike its more
commonly invoked neighbor—which imposes a ‘reactive’ duty on agencies[]—the reading-room provision commonly invoked neighbor—which imposes a ‘reactive’ duty on agencies[]—the reading-room provision
affirmatively obligates agencies to ‘make available for public inspection’ several categories of documents even absent a affirmatively obligates agencies to ‘make available for public inspection’ several categories of documents even absent a
specific request.” (citation omitted) (quoting CREW v. DOJ, 846 F.3d 1235, 1240 (D.C. Cir. 2017), and 5 U.S.C. § specific request.” (citation omitted) (quoting CREW v. DOJ, 846 F.3d 1235, 1240 (D.C. Cir. 2017), and 5 U.S.C. §
552(a)(2))552(a)(2))). The meaning of “agency records” under FOIA is discussed above. . The meaning of “agency records” under FOIA is discussed above. See ~~supr~~asupra “Agency Records”. 122 See
~~125 See infra;~~ ~~see~~ generally DOJ GUIDE, PROCEDURAL REQUIREMENTS, DOJ GUIDE, PROCEDURAL REQUIREMENTS, supra notenot e 61. Congressional Research Service 14 link to page 11 link to page 22 link to page 48 link to page 14 link to page 11 The Freedom of Information Act (FOIA): A Legal Overview below, FOIA allows requesters to appeal agency decisions to withhold records within the agency, a process requesters generally must take advantage of prior to seeking judicial review.123 Agency Response Requirements Section 552(a)(3)(A) governs the production of records subject to a FOIA request. Under that section, “each agency ... shall make ... records promptly available to any person” after receiving a FOIA request.124 A request must satisfy two requirements to trigger a response from the relevant agency. First, a request must “reasonably describe[]” the records sought.125 The House committee report accompanying the 1974 amendments to FOIA states that “a description [of a requested document would be sufficient if it enabled] ~~61.~~
~~126 See infra; see generally DOJ GUIDE, PROCEDURAL REQUIREMENTS, supra note 61.~~
~~127 5 U.S.C. § 552(a)(3)(A). However, agencies are not required to disclose records covered by one of FOIA’s nine~~
~~exemptions or three exclusions upon receiving a request. 5 U.S.C. § 552(b), (c); see infra “Exemptions” (discussing~~
~~FOIA’s exemptions contained in 5 U.S.C. § 552(b)); “Exclusions” (discussing FOIA’s exclusions contained in 5 U.S.C.~~
~~§ 552(c)). And, as indicated above, § 552(a)(3)’s request-based disclosure obligation does not apply to “records made~~
~~available under” FOIA’s affirmative disclosure provisions. 5 U.S.C. § 552(a)(3)(A). FOIA’s affirmative disclosure~~
~~provisions are discussed above. See supra “Affirmative Disclosure.”~~
~~128 5 U.S.C. § 552(a)(3)(A)(i).~~
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~~committee report underlying the 1974 amendments to FOIA states that a “‘description’ of a~~
~~requested document would be sufficient if it enabled~~ a professional employee of the agency who a professional employee of the agency who
was familiar with the subject area of the request to locate the record with a reasonable amount of was familiar with the subject area of the request to locate the record with a reasonable amount of
effort.”effort.”~~129~~126 Second, a FOIA request must comply with the agency’s “published rules stating the Second, a FOIA request must comply with the agency’s “published rules stating the
time, place, fees (if any), and procedures to be followed.”time, place, fees (if any), and procedures to be followed.”~~130~~127
If a requester submits a valid request, an agency must execute an “adequate” or “reasonable” If a requester submits a valid request, an agency must execute an “adequate” or “reasonable”
search.search.~~131~~128 This standard requires that an agency conduct a search that is “reasonably calculated to This standard requires that an agency conduct a search that is “reasonably calculated to
uncover all relevant documents.”uncover all relevant documents.”~~132~~129 The D.C. Circuit has explained that “[t]he issue is The D.C. Circuit has explained that “[t]he issue is not
whether any further documents might conceivably exist but rather whether the government’s whether any further documents might conceivably exist but rather whether the government’s
search for responsive documents was adequate.”search for responsive documents was adequate.”~~133~~130 FOIA also states that agencies must “make FOIA also states that agencies must “make
reasonable efforts to search for .reasonable efforts to search for . . .. records in electronic form or format,” unless doing so “would . records in electronic form or format,” unless doing so “would
significantly interfere with the operation of the agency’s automated information system.”significantly interfere with the operation of the agency’s automated information system.”~~134 DOJ~~
~~guidance provides that this latter requirement “promotes electronic database searches and~~
~~encourages agencies to expend new efforts in order to comply with the electronic search~~
~~requirements of particular FOIA requests.”135~~
~~To facilitate its disclosure mandate, FOIA requires agencies to respond within certain timeframes~~
~~and authorizes administrative review of unfavorable agency decisions.136 Once it receives a valid~~

~~129~~131 DOJ 123 See generally DOJ GUIDE, PROCEDURAL REQUIREMENTS, supra note 61. 124 5 U.S.C. § 552(a)(3)(A). However, agencies are not required to disclose records covered by one of FOIA’s nine exemptions or three exclusions upon receiving a request. 5 U.S.C. § 552(b), (c); see infra Exemptions (discussing FOIA’s exemptions contained in 5 U.S.C. § 552(b)); see infra Exclusions (discussing FOIA’s exclusions contained in 5 U.S.C. § 552(c)). As indicated above, § 552(a)(3)’s request-based disclosure obligation does not apply to “records made available under” FOIA’s affirmative disclosure provisions. 5 U.S.C. § 552(a)(3)(A). FOIA’s affirmative disclosure provisions are discussed above. See supra Affirmative Disclosure. 125 5 U.S.C. § 552(a)(3)(A)(i). 126 H.R. REP. NO. 876, at 6 (1974); H.R. REP. NO. 876, at 6 (1974); see Yagman v. Pompeo, 868 F.3d 1075, 1081 (9th Cir. 2017) (quoting Marks v. Yagman v. Pompeo, 868 F.3d 1075, 1081 (9th Cir. 2017) (quoting Marks v.
United States, 587 F.2d 261, 263 (9th Cir. 1978) (quoting H.R. REP. NO. 876, at 6 (1974))United States, 587 F.2d 261, 263 (9th Cir. 1978) (quoting H.R. REP. NO. 876, at 6 (1974))) (same). Relatedly, courts (same). Relatedly, courts
have determined that agencies are not compelled to perform “unreasonably burdensome search[es].” Am. Fed’n of have determined that agencies are not compelled to perform “unreasonably burdensome search[es].” Am. Fed’n of
Gov’t Emp.’s, Local 2782 v. U.S. Dep’t of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990Gov’t Emp.’s, Local 2782 v. U.S. Dep’t of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990~~) (internal quotation marks~~
~~omitted~~) (quoting Goland v. CIA 607 F.2d 339, 353 (D.C. Cir. 1978)); ) (quoting Goland v. CIA 607 F.2d 339, 353 (D.C. Cir. 1978)); see DOJ GUIDE, PROCEDURAL REQUIREMENTS, DOJ GUIDE, PROCEDURAL REQUIREMENTS,
supra no note 61, at 52 (stating that “courts have held that the FOIA does not require agencies to conduct ‘unreasonably at 52 (stating that “courts have held that the FOIA does not require agencies to conduct ‘unreasonably
burdensome’ searches for records”). burdensome’ searches for records”).
~~130~~127 5 U.S.C. § 552(a)(3)(A)(ii). Many agencies apply special scrutiny to certain sensitive requests that involve review 5 U.S.C. § 552(a)(3)(A)(ii). Many agencies apply special scrutiny to certain sensitive requests that involve review
by agency officials or political appointees. by agency officials or political appointees. See, e.g., Memorandum, Memorandum ~~from~~, Stephen W. Warren, Executive in Charge and Stephen W. Warren, Executive in Charge and
Chief Information Officer for Information and Technology, Dep’t of Veterans Affairs, to Under Secretaries, Assistant Chief Information Officer for Information and Technology, Dep’t of Veterans Affairs, to Under Secretaries, Assistant
Secretaries, and Other Key Officials (Oct. 31, 2013) (declaring that, on a temporary basis, “all responses to FOIA Secretaries, and Other Key Officials (Oct. 31, 2013) (declaring that, on a temporary basis, “all responses to FOIA
requests by [the Department of Veterans Affairs’ central] offices and field components will be reviewed by the requests by [the Department of Veterans Affairs’ central] offices and field components will be reviewed by the
designated officials prior to release to the public” for the purpose of making “sensitivity determination[s]”). designated officials prior to release to the public” for the purpose of making “sensitivity determination[s]”).
~~131~~128 See Hamdan v. DOJ, 797 F.3d 759, 770 (9th Cir. 2015); Hamdan v. DOJ, 797 F.3d 759, 770 (9th Cir. 2015); Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); see
also Edelman v. SEC, 172 F. Supp. 3d 133, 144 (D.D.C. 2016) (“An agency has an obligation under FOIA to conduct Edelman v. SEC, 172 F. Supp. 3d 133, 144 (D.D.C. 2016) (“An agency has an obligation under FOIA to conduct
an adequate search for responsive records.”). an adequate search for responsive records.”).
~~132~~129 Hamdan, 797 F.3d at 770, 797 F.3d at 770 ~~(quotation marks omitted)~~; ; see Edleman, 172 F. Supp. 3d at 144. , 172 F. Supp. 3d at 144.
~~133~~130 Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (per curiam); Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (per curiam); cf. . In re Clinton, Clinton, ~~No. 20-5056, 2020 U.S. App.~~
~~LEXIS 25876, at *21~~970 F.3d 357, 367 (D.C. Cir. (D.C. Cir. ~~Aug. 14,~~ 2020) (“It is well established that the reasonableness of a FOIA search does 2020) (“It is well established that the reasonableness of a FOIA search does
not turn on whether it actually uncovered every document extant, and that the failure of an agency to turn up a specific not turn on whether it actually uncovered every document extant, and that the failure of an agency to turn up a specific
document does not alone render a search inadequate.”) (document does not alone render a search inadequate.”) (~~internal quotation marks and~~ citations omitted). citations omitted).
~~134~~131 5 U.S.C. § 552(a)(3)(C); 5 U.S.C. § 552(a)(3)(C); cf. id. § 552(a)(3)(B) (“In making any record available to a person under this paragraph, an § 552(a)(3)(B) (“In making any record available to a person under this paragraph, an
(continued...) Congressional Research Service 15 link to page 50 link to page 50 The Freedom of Information Act (FOIA): A Legal Overview guidance provides that this latter requirement “promotes electronic database searches and encourages agencies to expend new efforts in order to comply with the electronic search requirements of particular FOIA requests.”132 To facilitate its disclosure mandate, FOIA requires agencies to respond within certain timeframes and authorizes administrative review of unfavorable agency decisions.133 Once it receives a valid FOIA request, an agency has twenty business days to “determine ... whether to comply with [the] request” and “shall immediately notify the” requester of its “determination and the reasons therefor,” as well as of the requester’s right to appeal an “adverse determination” within the agency.134 In “unusual circumstances”—as defined by the statute—an agency may extend the twenty-day period by ten additional days.135 agency shall provide the record in any form or format requested by the person if the record is readily reproducible by agency shall provide the record in any form or format requested by the person if the record is readily reproducible by
the agency in that form or format.”). the agency in that form or format.”).
~~135~~132 DOJ, Office of Info. Pol’y, DOJ, Office of Info. Pol’y, FOIA Update: Congress Enacts FOIA Amendments (Jan. 1, 1996), (Jan. 1, 1996),
https://www.justice.gov/oip/blog/foia-update-congress-enacts-foia-amendments. https://www.justice.gov/oip/blog/foia-update-congress-enacts-foia-amendments.
~~136~~133 See Judicial Watch, Inc. v. DHS, 895 F.3d 770, 774 (D.C. Cir. 2018) (explaining that “[t]o ensure [FOIA’s Judicial Watch, Inc. v. DHS, 895 F.3d 770, 774 (D.C. Cir. 2018) (explaining that “[t]o ensure [FOIA’s
disclosure] mandate did not become a dead letter, Congress,” disclosure] mandate did not become a dead letter, Congress,” inter alia, “established timetables for agencies to respond , “established timetables for agencies to respond
to requests” and “provided members of the public whose records requests were denied a right to an administrative to requests” and “provided members of the public whose records requests were denied a right to an administrative
appeal”). In addition to the timeframes discussed herein, FOIA also imposes other related requirements on agencies. appeal”). In addition to the timeframes discussed herein, FOIA also imposes other related requirements on agencies.
For example, agencies are required to create a program for assigning and providing to requesters tracking numbers for For example, agencies are required to create a program for assigning and providing to requesters tracking numbers for
requests “that will take longer than ten days to process,” 5 U.S.C. § 552(a)(7), and to develop rules “providing for requests “that will take longer than ten days to process,” 5 U.S.C. § 552(a)(7), and to develop rules “providing for
expedited processing of requests,” expedited processing of requests,” id. § 552(a)(6)(§ 552(a)(6)(Ec). Agencies must also develop regulations governing fees for ). Agencies must also develop regulations governing fees for
processing requests, including in regard to “when such fees should be waived or reduced.” processing requests, including in regard to “when such fees should be waived or reduced.” Id. § 552(a)(4)(A). § 552(a)(4)(A).
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~~FOIA request, an agency has twenty business days to “determine . . . whether to comply with~~
~~[the] request” and “shall immediately notify the” requester of its “determination and the reasons~~
~~therefor,” as well as of the requester’s right to appeal an “adverse determination” within the~~
~~agency.137 In “unusual circumstances”—as defined by the statute—an agency may extend the~~
~~twenty-day period by ten additional days.138 In~~ ~~Citizens for Responsibility & Ethics in Washington~~
~~v. Federal Election Commission,139 the D.C. Circuit, in an opinion authored by then-Judge Brett~~
~~Kavanaugh, held that to make a proper “determination,” an “agency must at least indicate within~~
~~the relevant time period the scope of the documents it will produce and the exemptions it will~~
~~claim with respect to any withheld documents.”140 The court explained that an agency need not~~
~~produce requested records when it makes its initial determination, determining that it may fulfill~~

~~137~~134 5 U.S.C. § 552(a)(6)(A)(i)(I), (III)(aa). An agency must also notify the requester of his or her “right . 5 U.S.C. § 552(a)(6)(A)(i)(I), (III)(aa). An agency must also notify the requester of his or her “right . . .. to seek . to seek
assistance from the FOIA Public Liaison of the agency,” as well as “to seek dispute resolution services from the assistance from the FOIA Public Liaison of the agency,” as well as “to seek dispute resolution services from the
[agency’s] FOIA Public Liaison .[agency’s] FOIA Public Liaison . . .. or the Office of Government Information Services.” . or the Office of Government Information Services.” Id. § 552(a)(6)(A)(i)(II)-(III). § 552(a)(6)(A)(i)(II)-(III).
The twenty-day period does not include Saturdays, Sundays, or public holidays. The twenty-day period does not include Saturdays, Sundays, or public holidays. Id. § 552(a)(6)(A)(i). An agency is § 552(a)(6)(A)(i). An agency is
authorized to toll this period in certain circumstances. authorized to toll this period in certain circumstances. See id. § 552(a)(6)(A)(ii)(I) (authorizing agencies to “make one § 552(a)(6)(A)(ii)(I) (authorizing agencies to “make one
request to the requester for information and toll the 20-day period while it .request to the requester for information and toll the 20-day period while it . . .. await[s] such information that it has . await[s] such information that it has
reasonably requested from the requester”); reasonably requested from the requester”); id. § 552(a)(6)(A)(ii)(II) (providing that the twenty-day period may be tolled § 552(a)(6)(A)(ii)(II) (providing that the twenty-day period may be tolled
“if necessary to clarify with the requester issues regarding fee assessment”). “if necessary to clarify with the requester issues regarding fee assessment”).
~~138~~135 5 U.S.C. 5 U.S.C. § 552(a)(6)(B)(i). FOIA defines “unusual circumstances” to mean the following—“but only to the extent § 552(a)(6)(B)(i). FOIA defines “unusual circumstances” to mean the following—“but only to the extent
reasonably necessary to the proper processing of the particular requests”: reasonably necessary to the proper processing of the particular requests”:
(I) the need to search for and collect the requested records from field facilities or other establishments (I) the need to search for and collect the requested records from field facilities or other establishments
that are separate from the office processing the request; that are separate from the office processing the request;
(II) the need to search for, collect, and appropriately examine a voluminous amount of separate and (II) the need to search for, collect, and appropriately examine a voluminous amount of separate and
distinct records which are demanded in a single request; or distinct records which are demanded in a single request; or
(III) the need for consultation, which shall be conducted with all practicable speed, with another agency (III) the need for consultation, which shall be conducted with all practicable speed, with another agency
having a substantial interest in the determination of the request or among two or more components of the having a substantial interest in the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein. agency having substantial subject-matter interest therein.
Id. § 552(a)(6)(B)(iii). § 552(a)(6)(B)(iii).
Relatedly, during litigation challenging an agency’s decision to withhold information under FOIA, Relatedly, during litigation challenging an agency’s decision to withhold information under FOIA, see infra “FOIA-
Related Litigation: Selected Issues,” FOIA allows courts to “retain jurisdiction and allow [an] agency additional time to FOIA allows courts to “retain jurisdiction and allow [an] agency additional time to
complete its review of [its] records” if “complete its review of [its] records” if “exceptional circumstances exist and . exist and . . .. the agency is exercising due diligence . the agency is exercising due diligence
in responding to the request.” 5 U.S.C. § 552(a)(6)(C)(i) (emphasis added). “Exceptional circumstances” is not a in responding to the request.” 5 U.S.C. § 552(a)(6)(C)(i) (emphasis added). “Exceptional circumstances” is not a
limitless term. FOIA states that the term “does not include a delay that results from a predictable agency workload of limitless term. FOIA states that the term “does not include a delay that results from a predictable agency workload of
requests .requests . ~~. .~~.. , unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.” , unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.” Id.
§ 552(a)(6)(C)(ii). A refusal to reasonably modify a request’s scope or processing § 552(a)(6)(C)(ii). A refusal to reasonably modify a request’s scope or processing ~~timeframe~~time frame is “a factor in determining is “a factor in determining
whether exceptional circumstances exist.” whether exceptional circumstances exist.” Id. § 552(a)(6)(C)(iii). Stays granted under § 552(a)(6)(C) are often called § 552(a)(6)(C)(iii). Stays granted under § 552(a)(6)(C) are often called
““Open America stays,” from the D.C. Circuit’s decision in stays,” from the D.C. Circuit’s decision in Open America v. Watergate Special Prosecution Force, 547 , 547
F.2d 605 (D.C. Cir. 1976). In F.2d 605 (D.C. Cir. 1976). In Open America, the court held that “‘exceptional circumstances exist,’” and therefore a , the court held that “‘exceptional circumstances exist,’” and therefore a
stay is warranted under subsection (a)(6)(C), “when an agency .stay is warranted under subsection (a)(6)(C), “when an agency . . .. is deluged with a volume of requests for information . is deluged with a volume of requests for information
vastly in excess of that anticipated by Congress, when the existing resources are inadequate to deal with the volume of vastly in excess of that anticipated by Congress, when the existing resources are inadequate to deal with the volume of
~~such requests within the time limits of subsection (6)(A), and when the agency can show that it ‘is exercising due~~
~~diligence’ in processing the requests.” Id. at 616. Open America was decided before subsections (a)(6)(C)(ii) and (ii)~~
~~were added to FOIA in 1996. See E-FOIA Amendments, Pub. L. 104-231, § 7(c), 110 Stat. at 3051. The legislative~~
~~history of the E-FOIA Amendments provides that subsection (a)(6)(C)(ii) clarifies “that routine, predictable agency~~
~~backlogs for FOIA requests do not constitute exceptional circumstances for purposes of” FOIA, and that the provision~~
~~“is consistent with the holding in Open America.” H.R. REP. NO. 795, at 24 (1996); see Democracy Forward Found. v.~~
DOJ, 354 F. Supp. 3d 55, 59 (D.D.C. 2018). Courts have held that “[o]ther circumstances warranting an Open America
~~stay may include an agency’s efforts to reduce the number of pending requests, the amount of classified material, [and]~~
~~the size and complexity of other requests processed by the agency.” Clemente v. FBI, 71 F. Supp. 3d 262, 266 (D.D.C.~~
~~2014) (internal quotation marks and citation omitted) (alteration in original).~~
~~139 711 F.3d 180 (D.C. Cir. 2013) (Kavanaugh, J.).~~
~~140 Id. at 182-83.~~
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~~its responsibility under § 552(a)(3)(A) to “make . .~~ such requests within the time limits of subsection (6)(A), and when the agency can show that it ‘is (continued...) Congressional Research Service 16 link to page 20 link to page 50 The Freedom of Information Act (FOIA): A Legal Overview In Citizens for Responsibility & Ethics in Washington v. Federal Election Commission,136 the D.C. Circuit held that to make a proper “determination,” an “agency must at least indicate within the relevant time period the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents.”137 The court explained that an agency need not produce requested records when it makes its initial determination, determining that it may fulfill its responsibility under § 552(a)(3)(A) to “make ... records promptly available” . records promptly available” after it indicates it indicates
the scope of the records it will disclose and the exemptions it will invoke.the scope of the records it will disclose and the exemptions it will invoke.~~141~~138 Appeals and Exhaustion of Administrative Remedies
A requester who receives an adverse determination may appeal the determination within the A requester who receives an adverse determination may appeal the determination within the
agency.agency.~~142~~139 Upon receiving an administrative appeal, an agency has twenty business days to make Upon receiving an administrative appeal, an agency has twenty business days to make
a determination, although, as in the context of initial determinations, it may extend this timeline a determination, although, as in the context of initial determinations, it may extend this timeline
by ten days for unusual circumstances.by ten days for unusual circumstances.~~143~~140 If the agency—in whole or in part—upholds its adverse If the agency—in whole or in part—upholds its adverse
determination, it must inform the requester of FOIA’s provisions governing judicial review of determination, it must inform the requester of FOIA’s provisions governing judicial review of
agency withholding decisions.agency withholding decisions.~~144~~141 Judicial review can proceed if the requester remains Judicial review can proceed if the requester remains
dissatisfied.dissatisfied.~~145~~142
Before challenging an agency’s nondisclosure decision in federal court, a requester Before challenging an agency’s nondisclosure decision in federal court, a requester ~~typically must~~
~~exhaust any remedies that an agency affords the requester.146 Plaintiffs will fail to exhaust~~
~~administrative remedies if they did not submit a valid FOIA request to the agency or did not~~
~~internally appeal the agency’s adverse determination.147 However, if the agency does not adhere~~
~~to the response timeframes FOIA imposes on agencies, a requester “shall be deemed to have~~
~~exhausted his administrative remedies.”148 If this occurs, the requester is viewed as having~~
~~constructively exhausted administrative remedies and may seek review in federal court.149~~
~~However, if an agency belatedly responds to a request before the requester files suit, the requester~~
~~must still internally appeal the agency’s adverse determination before seeking recourse in the~~
~~federal courts.150~~
~~Exemptions~~
~~As explained above, FOIA establishes a statutory right of public access to a wide array of~~
~~government information. However, FOIA’s drafters also desired to protect certain private and~~

141 Id. at 188. Cf. Judicial Watch~~, 895 F.3d at 785 (Pillard, J., concurring) (writing that “FOIA . .~~ must typically exhaust the agency’s internal appeals process.143 If, however, the agency does not adhere to the response time frames FOIA imposes on agencies, a requester “shall be deemed to have exhausted his administrative remedies.”144 If this occurs, the requester is viewed as having constructively exercising due diligence’ in processing the requests.” Id. at 616. Open America was decided before subsections (a)(6)(C)(ii) and (ii) were added to FOIA in 1996. See E-FOIA Amendments, Pub. L. No. 104-231, § 7(c), 110 Stat. at 3051 (1996). The legislative history of the E-FOIA Amendments provides that subsection (a)(6)(C)(ii) clarifies “that routine, predictable agency backlogs for FOIA requests do not constitute exceptional circumstances for purposes of” FOIA, and that the provision is “consistent with the holding in Open America.” H.R. REP. NO. 795, at 24 (1996); see Democracy Forward Found. v. DOJ, 354 F. Supp. 3d 55, 59 (D.D.C. 2018). Courts have held that “[o]ther circumstances warranting an Open America stay may include an agency’s efforts to reduce the number of pending requests, the amount of classified material, [and] the size and complexity of other requests processed by the agency.” Clemente v. FBI, 71 F. Supp. 3d 262, 266 (D.D.C. 2014) (citation omitted) (alteration in original). 136 711 F.3d 180 (D.C. Cir. 2013) (Kavanaugh, J.). 137 Id. at 182–83. 138 Id. at 188. Cf. Judicial Watch, 895 F.3d at 785 (Pillard, J., concurring) (writing that “FOIA ... sets a default 20-day . sets a default 20-day
deadline for the underlying deadline for the underlying determination, and simply requires that the ensuing , and simply requires that the ensuing production of records be made to the of records be made to the
requester ‘promptly’ thereafter”). requester ‘promptly’ thereafter”).
~~142~~139 5 U.S.C. § 552(a)(6)(A). Within twenty (or, in the event of unusual circumstances, thirty) days of receiving a proper 5 U.S.C. § 552(a)(6)(A). Within twenty (or, in the event of unusual circumstances, thirty) days of receiving a proper
request, request, ~~id.~~ ~~§ 552(a)(6)(A)(i), (B)(i),~~ an agency must inform the requester of his or her ability to appeal an adverse an agency must inform the requester of his or her ability to appeal an adverse
determination “within a period determined by the head of the agency that is not less than 90 days after the date of such determination “within a period determined by the head of the agency that is not less than 90 days after the date of such
adverse determination,” adverse determination,” id. § 552(a)(6)(A)(i) § 552(a)(6)(A)(i), (B)(i), (a)(6)(A)(i)(III)(aa). (III)(aa).
~~143~~140 Id. § 552(a)(6)(A)(ii), (B)(i). The same unusual circumstances listed above in relation to initial determinations, § 552(a)(6)(A)(ii), (B)(i). The same unusual circumstances listed above in relation to initial determinations, see
discussion and sources supra no note ~~138~~135, apply in the case of administrative appellate determinations, apply in the case of administrative appellate determinations, see id. § 552(a)(6)(B)(i), (iii). § 552(a)(6)(B)(i), (iii).
~~144~~141 Id. § 552(a)(6)(A)(ii). § 552(a)(6)(A)(ii).
~~145~~142 See infra “FOIA-Related Litigation: Selected Issues.”
~~146~~ 143 Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir. 1990). 144 5 U.S.C. § 552(a)(6)(C)(i) (“Any person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph.”); see DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, LITIGATION CONSIDERATIONS PART 1 46–47 (Feb. 27, 2024) https://www.justice.gov/oip/media/1341076/dl?inline#page=1 [hereinafter DOJ GUIDE, LITIGATION CONSIDERATIONS]. Congressional Research Service 17 link to page 22 link to page 46 The Freedom of Information Act (FOIA): A Legal Overview exhausted administrative remedies and may seek review in federal court.145 Conversely, if an agency belatedly responds to a request before the requester files suit in federal court, the requester must still internally appeal the agency’s adverse determination before seeking recourse in the federal courts.146 Exemptions As explained above, FOIA establishes a statutory right of public access to a wide array of government information. FOIA’s drafters, however, also desired to protect certain private and governmental interests from the law’s broad disclosure mandate.147 ~~Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (1990).~~
~~147 See Debrew v. Atwood, 792 F.3d 118, 123-24 (D.C. Cir. 2015); Oglesby, 920 F.2d at 61-62. See also DOJ, OFFICE~~
~~OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, LITIGATION CONSIDERATIONS, at 29, 32-33 (Sept. 25,~~
~~2019) [hereinafter DOJ GUIDE, LITIGATION CONSIDERATIONS],~~
~~https://www.justice.gov/oip/page/file/1205066/download.~~
~~148 5 U.S.C. § 552(a)(6)(C)(i) (“Any person making a request to any agency for records under paragraph (1), (2), or (3)~~
~~of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the~~
~~agency fails to comply with the applicable time limit provisions of this paragraph.”); see DOJ GUIDE, LITIGATION~~
~~CONSIDERATIONS, supra note 147, at 34-35.~~
~~149 See Oglesby, 920 F.2d at 62 (“If the agency has not responded within the statutory time limits, then, under 5 U.S.C.~~
~~§ 552(a)(6)(C), the requester may bring suit.”).~~
~~150 See id. at 64 (“The ten-day [now twenty-day] constructive exhaustion under 5 U.S.C. § 552(a)(6)(C) allows~~
~~immediate recourse to the courts to compel the agency’s response to a FOIA request. But once the agency responds to~~
~~the FOIA request, the requester must exhaust his administrative remedies before seeking judicial review.”)~~
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~~governmental interests from the law’s broad disclosure mandate.151~~ FOIA reflects this desire by FOIA reflects this desire by
exempting a variety of records and information from mandatory disclosure pursuant to nine exempting a variety of records and information from mandatory disclosure pursuant to nine
enumerated exemptions.enumerated exemptions.~~152~~148 Information protected by FOIA’s exemptions ranges from certain Information protected by FOIA’s exemptions ranges from certain
classified national security information to geological information pertaining to wells.classified national security information to geological information pertaining to wells.~~153~~149 Together, Together,
the statute’s policy of otherwise maximum disclosure and its exemptions seek to strike a “balance the statute’s policy of otherwise maximum disclosure and its exemptions seek to strike a “balance
between the right of the public to know and the need of the Government to keep information in between the right of the public to know and the need of the Government to keep information in
confidence to the extent necessary without permitting indiscriminate secrecy.”confidence to the extent necessary without permitting indiscriminate secrecy.”~~154~~150
FOIA’s exemptions are codified at 5 U.S.C. § 552(b) FOIA’s exemptions are codified at 5 U.S.C. § 552(b). Table 1 lists each exemption. All nine lists each exemption. All nine
exemptions are explained more fully below. exemptions are explained more fully below.
Table 1. FOIA Exemptions
5 U.S.C. § 552(b)(1)-(9) 5 U.S.C. § 552(b)(1)-(9)
Exemptions
Text of Exemptions
Exemption 1: National Security (5 U.S.C. § 552(b)(1)) Exemption 1: National Security (5 U.S.C. § 552(b)(1)).
Matters that are . . .. (A) specifically authorized under
criteria established by an Executive order to be kept secret
in the interest of national defense or foreign policy and
(B) are in fact properly classified pursuant to such Executive
order.
Exemption 2: Personnel Rules and Practices (5 U.S.C. Exemption 2: Personnel Rules and Practices (5 U.S.C.
§ Matters that are . . .. related solely to the internal personnel
§ 552(b)(2))552(b)(2)).
rules and practices of an agency. 145 See Oglesby, 920 F.2d at 62 (“If the agency has not responded within the statutory time limits, then, under 5
~~Exemption 3: Matter Exempted by Other Statutes (5~~
~~Matters that are . . . specifically exempted from disclosure~~
U.S.C. § 552(U.S.C. § 552(~~b)(3))~~
~~by statute (other than section 552b of this title), if that~~
~~statute-~~
~~(A)(i) requires that the matters be withheld from the public~~
~~in such a manner as to leave no discretion on the issue; or~~
~~(ii) establishes particular criteria for withholding or refers to~~
~~particular types of matters to be withheld; and~~
~~(B) if enacted after the date of enactment of the OPEN~~
~~FOIA Act of 2009, specifically cites to this paragraph~~

~~151~~a)(6)(C), the requester may bring suit.”). 146 See id. at 63–64 (“The ten-day [now twenty-day] constructive exhaustion under 5 U.S.C. § 552(a)(6)(C) allows immediate recourse to the courts to compel the agency’s response to a FOIA request. But once the agency responds to the FOIA request, the requester must exhaust his administrative remedies before seeking judicial review.”) 147 S. REP. NO. 813, at 3 (1965); FBI v. Abramson, 456 U.S. 615, 621 (1982). FOIA’s exemptions apply to materials S. REP. NO. 813, at 3 (1965); FBI v. Abramson, 456 U.S. 615, 621 (1982). FOIA’s exemptions apply to materials
subject to both FOIA’s request-driven and affirmative disclosure provisions. subject to both FOIA’s request-driven and affirmative disclosure provisions. See 3 KRISTIN E. HICKMAN & RICHARD J. 3 KRISTIN E. HICKMAN & RICHARD J.
PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 21.2, at 2185 (6th ed. 2019) [hereinafter 3 HICKMAN & PIERCE, JR.]. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 21.2, at 2185 (6th ed. 2019) [hereinafter 3 HICKMAN & PIERCE, JR.].
~~152~~148 5 U.S.C. 5 U.S.C. § 552(b)(1), (9). In certain circumstances, agencies § 552(b)(1), (9). In certain circumstances, agencies ~~may issue what is known as a “Glomar response” in~~
response to request for records. Pursuant to the “Glomar ~~doctrine,” agencies~~ “may refuse to confirm or deny the “may refuse to confirm or deny the
existence of records where to answer the FOIA inquiry would cause harm cognizable under a[ ] FOIA” exemption. existence of records where to answer the FOIA inquiry would cause harm cognizable under a[ ] FOIA” exemption.
Wilner v. NSA, 592 F.3d 60, 68 (2d Cir. 2009) (alteration in originalWilner v. NSA, 592 F.3d 60, 68 (2d Cir. 2009) (alteration in original~~) (internal quotation marks omitted~~) (quoting ) (quoting
~~Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)). The doctrine “is named for the Hughes Glomar Explorer, a~~
~~ship used in a classified Central Intelligence Agency project to raise a sunken Soviet submarine from the floor of the~~
~~Pacific Ocean to recover the missiles, codes, and communications equipment onboard for analysis by United States~~
~~military and intelligence experts.” Roth v. DOJ, 642 F.3d 1161, 1171 (D.C. Cir. 2011) (internal quotation marks~~
omitted) (quoting Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981)). Agencies commonly issue Glomar
~~responses in the national-security context, where acknowledging that certain records do or do not exist “could itself~~
~~compromise national security.” Military Audit Project v. Casey, 656 F.2d 724, 730 (D.C. Cir. 1981).~~
153 See ~~5 U.S.C. § 552(b)(1)-~~Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)). This is known as a “Glomar response.” For more information, see infra Glomar Responses. 149 See 5 U.S.C. § 552(b)(1)–(9);(9); Abramson, 456 U.S. at 621 (remarking that “Congress realized that legitimate , 456 U.S. at 621 (remarking that “Congress realized that legitimate
governmental and private interests could be harmed by release of certain types of information and provided nine governmental and private interests could be harmed by release of certain types of information and provided nine
specific exemptions under which disclosure could be refused”). specific exemptions under which disclosure could be refused”).
~~154~~150 John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989 John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989~~) (internal quotation marks omitted~~) (quoting H.R. ) (quoting H.R.
REP. NO. 1497, at 6 (1966));REP. NO. 1497, at 6 (1966)); cf. RICHARD J. PIERCE, JR., ET AL., ADMINISTRATIVE LAW AND PROCESS 374 (6th ed. 2014) RICHARD J. PIERCE, JR., ET AL., ADMINISTRATIVE LAW AND PROCESS 374 (6th ed. 2014)
(“The exemptions are an attempt to balance the benefits of disclosure against the particular disadvantages to the (“The exemptions are an attempt to balance the benefits of disclosure against the particular disadvantages to the
government or the economy if the information were released.”). government or the economy if the information were released.”).
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Exemptions
Text of Exemptions
Exemption Exemption 3: Matter Exempted by Other Statutes (5 Matters that are ... specifically exempted from disclosure by U.S.C. § 552(b)(3)). statute (other than section 552b of this title), if that statute- (A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph. Exemption 4: Trade Secrets and Commercial or Matters that are ..~~4: Trade Secrets and Commercial or~~
~~Matters that are . .~~ . trade secrets and commercial or
Financial Information (5 U.S.C. § 552(b)(4)) Financial Information (5 U.S.C. § 552(b)(4)).
financial information obtained from a person and privileged
or confidential.
Exemption 5: Inter- or Intra-Agency Materials (5 U.S.C. Exemption 5: Inter- or Intra-Agency Materials (5 U.S.C.
Matters that are . . .. inter-agency or intra-agency
memoranda § 552(b)(5)) § 552(b)(5)).
~~memorandums~~ or letters that would not be available by law
to a party other than an agency in litigation with the agency,
provided that the deliberative process privilege shall not
apply to records created 25 years or more before the date
on which the records were requested.
Exemption 6: Personal Privacy (5 U.S.C. § 552(b)(6)) Exemption 6: Personal Privacy (5 U.S.C. § 552(b)(6)).
Matters that are . . .. personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.
Exemption 7: Law Enforcement (5 U.S.C. § 552(b)(7)) Exemption 7: Law Enforcement (5 U.S.C. § 552(b)(7)).
Matters that are . . .. 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 a confidential source,
including a State, local, or foreign agency or authority or any
private institution which furnished information on a
confidential basis, and, in the case of a record or
information compiled by 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 of any
individual.
Exemption 8: Financial Institution Reports (5 U.S.C. Exemption 8: Financial Institution Reports (5 U.S.C.
§ Matters that are . . .. contained in or related to examination,
§ 552(b)(8))552(b)(8)).
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.
Exemption 9: Wells (5 U.S.C. § 552(b)(9)) Exemption 9: Wells (5 U.S.C. § 552(b)(9)).
Matters that are . . .. geological and geophysical information
and data, including maps, concerning wells.
Source: 5 U.S.C. § 552(b)(1)5 U.S.C. § 552(b)(1)~~-(9).~~
~~Despite the scope afforded to agencies to withhold certain records by FOIA’s exemptions, the~~
~~statute is fundamentally a disclosure statute.155 In that vein, the Supreme Court has directed that~~
~~FOIA’s exemptions should “be narrowly construed.”156 The statute reflects FOIA’s presumption~~
~~in favor of disclosure by explicitly requiring that agencies “take reasonable steps necessary to~~

~~155 See Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976) (declaring that “the basic purpose of the Freedom of~~
~~Information Act to open agency action to the light of public scrutiny”) (internal quotation marks omitted).~~
~~156 See id. at 361 (stating that FOIA’s “exemptions do not obscure the basic policy that disclosure, not secrecy, is the~~
~~dominant objective of [FOIA]” and that they “must be narrowly construed”).~~
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~~segregate and release nonexempt information”157~~–(9). Congressional Research Service 19 The Freedom of Information Act (FOIA): A Legal Overview Despite the scope afforded to agencies to withhold certain records by FOIA’s exemptions, FOIA is fundamentally a transparency statute.151 FOIA explicitly requires that agencies “take reasonable steps necessary to segregate and release nonexempt information”152 and disclose “[a]ny reasonably segregable and disclose “[a]ny reasonably segregable
portion of a record” that has been requested “after deletion of the portions which are exempt.”portion of a record” that has been requested “after deletion of the portions which are exempt.”~~158~~
153 In that vein, the Supreme Court has directed that FOIA’s exemptions should “be narrowly construed.”154 More fundamentally, FOIA’s exemptions do not impose mandatory withholding obligations on More fundamentally, FOIA’s exemptions do not impose mandatory withholding obligations on
agencies, and pursuant to the 2016 amendments to FOIA,agencies, and pursuant to the 2016 amendments to FOIA,~~159~~155 an agency may not withhold an agency may not withhold
government information protected by an exemption unless it “reasonably foresees that disclosure government information protected by an exemption unless it “reasonably foresees that disclosure
would harm an interest protected by an exemptionwould harm an interest protected by an exemption,” or if disclosing the information is legally ” or if disclosing the information is legally
prohibited.prohibited.~~160 Such~~ 156 Interpreting the 2016 amendments, the D.C. Circuit held that agencies must “articulate both the nature of the harm [from release] and the link between the specified harm and specific information contained in the material withheld.”157 Such limitations on the potential breadth of FOIA’s exemptions may aid in the limitations on the potential breadth of FOIA’s exemptions may aid in the
implementation of the statute’s prodisclosure mandate. implementation of the statute’s prodisclosure mandate.
The Supreme Court has instructed that, due to the “exclusivity” of FOIA’s exemptions, the act The Supreme Court has instructed that, due to the “exclusivity” of FOIA’s exemptions, the act
does not authorize an agency to withhold a covered record or information that is not protected by does not authorize an agency to withhold a covered record or information that is not protected by
an applicable exemption.an applicable exemption.~~161 And in~~158 In American Immigration Lawyers Association v. Executive
Office for Immigration Review,,~~162~~159 the D.C. Circuit held that, when disclosing a record under the D.C. Circuit held that, when disclosing a record under
FOIA, an agency may not redact information from that record on the basis that the information is FOIA, an agency may not redact information from that record on the basis that the information is
“non-responsive,” but instead is limited by FOIA’s nine exemptions in the types of information it “non-responsive,” but instead is limited by FOIA’s nine exemptions in the types of information it
may redact.may redact.~~163~~160 The court explained that, although an agency may apply a FOIA exemption to The court explained that, although an agency may apply a FOIA exemption to
withhold matter from a record, “once an agency identifies a record it deems responsive to a FOIA withhold matter from a record, “once an agency identifies a record it deems responsive to a FOIA
request, the statute compels disclosure of the responsive record .request, the statute compels disclosure of the responsive record . . .. as a unit.”. as a unit.”~~164~~161 Thus, per the Thus, per the
court, although “the focus of the FOIA is information, not documents” when the agency is court, although “the focus of the FOIA is information, not documents” when the agency is
deciding whether to exempt matter from a record, “outside of that context, FOIA calls for deciding whether to exempt matter from a record, “outside of that context, FOIA calls for
disclosure of a responsive record, not disclosure of responsive information within a record.”disclosure of a responsive record, not disclosure of responsive information within a record.”~~165~~

~~157 5 U.S.C. § 552(a)(8)(A)(ii)(II).~~
~~158 Id. § 552(b).~~ ~~See~~162 151 See Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976) (declaring that “the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny”). 152 5 U.S.C. § 552(a)(8)(A)(ii)(II). 153 Id. § 552(b); see also id. (“The amount of information deleted, and the exemption under which the deletion is made, (“The amount of information deleted, and the exemption under which the deletion is made,
shall be indicated on the released portion of the record, unless including that indication would harm an interest shall be indicated on the released portion of the record, unless including that indication would harm an interest
protected by the exemption .protected by the exemption . . .. under which the deletion is made. If technically feasible, the amount of the information . under which the deletion is made. If technically feasible, the amount of the information
deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such
deletion is made.”). deletion is made.”).
~~159~~154 See id. at 361 (stating that FOIA’s “exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of [FOIA]” and that they “must be narrowly construed”). 155 See FOIA Improvement Act, Pub. L. No. 114-185, 130 Stat. 538 ( FOIA Improvement Act, Pub. L. No. 114-185, 130 Stat. 538 (~~June 30,~~ 2016). 2016).
~~160~~156 Id. § 2(1), 130 Stat. at 539 (codified at 5 U.S.C. § 552(a)(8)(A)(i)(I) § 2(1), 130 Stat. at 539 (codified at 5 U.S.C. § 552(a)(8)(A)(i)(I)~~-(II)).~~
~~161 DOJ v. Tax Analysts, 492 U.S. 136, 151 (1989).~~
~~162 830 F.3d 667 (D.C. Cir. 2016).~~
~~163 Id. at 677-78, 679.~~
~~164 Id. at 677.~~
~~165 Id. (internal quotation marks and citation omitted). The court explained that “[t]he practical significance of FOIA’s~~
~~command to disclose a responsive record as a unit . . . depends on how one conceives of a ‘record.’” Id. at 678. The~~
~~court wrote, however, that FOIA does not contain a definition of that term, and it did not supply a definition of its own.~~
Id. (“[T]he parties have not addressed the antecedent question of what constitutes a distinct ‘record’ for FOIA purposes,
~~and we have no cause to examine the issue. Rather, for purposes of this case, we simply take as a given [the agency’s]~~
~~own understanding of what constitutes a responsive ‘record,’ as indicated by its disclosures in response to [the subject]~~
~~request”); id. (“Although FOIA includes a definitions section, [5 U.S.C.] § 551, that section provides no definition of~~
~~the term ‘record.’ Elsewhere, the statute describes the term ‘record’ as ‘includ[ing] any information that would be an~~
~~agency record . . . when maintained by an agency in any format, including an electronic format,’ id. § 552(f), but that~~
~~description provides little help in understanding what is a ‘record’ in the first place.”) (second alteration and ellipses in~~
~~original). The court explained that, in the absence of a definition, “agencies instead in effect define a ‘record’ when~~
~~they undertake the process of identifying records that are responsive to a request.” Id. Others disagree that FOIA does~~
~~not define “record.” See, e.g., DOJ GUIDE, PROCEDURAL REQUIREMENTS, supra note 61, at 11 (“As a result of the 1996~~
~~amendments to the FOIA, Congress included a definition of the term ‘records’ in the FOIA, defining it as including~~
~~‘any information that would be an agency record . . . when maintained by an agency in any format, including an~~
~~electronic format.’” (ellipses in original) (quoting 5 U.S.C. § 552(f)(2)(A))).~~
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~~link to page 28 link to page 28 link to page 30 link to page 30~~–(II)). 157 Reps. Comm. For Freedom of the Press v. FBI, 3 F.4th 350, 369 (D.C. Cir. 2021); see also U.S. DOJ, OFFICE OF INFO. POL’Y, GUIDANCE: APPLYING A PRESUMPTION OF OPENNESS AND THE FORESEEABLE HARM STANDARD, (Apr. 12, 2023) https://www.justice.gov/oip/oip-guidance-applying-presumption-openness-and-foreseeable-harm-standard. 158 DOJ v. Tax Analysts, 492 U.S. 136, 151 (1989). 159 830 F.3d 667 (D.C. Cir. 2016). 160 Id. at 677–78, 679. 161 Id. at 677. 162 Id. (internal citation omitted). Congressional Research Service 20 link to page 28 link to page 28 link to page 29 link to page 29 The Freedom of Information Act (FOIA): A Legal Overview

An agency may be prohibited by another source of law from disclosing material that is exempt An agency may be prohibited by another source of law from disclosing material that is exempt
under FOIA.under FOIA.~~166~~163 For example, under FOIA’s Exemption 3, certain statutes that prohibit or place For example, under FOIA’s Exemption 3, certain statutes that prohibit or place
limits on agencies’ disclosure of information may serve as bases under FOIA for withholding limits on agencies’ disclosure of information may serve as bases under FOIA for withholding
covered information.covered information.~~167~~164 An agency’s disclosure of information protected by an Exemption 3 An agency’s disclosure of information protected by an Exemption 3
withholding statute, therefore, could, depending on the statute’s terms, violate that particular withholding statute, therefore, could, depending on the statute’s terms, violate that particular
statute. As another example, although FOIA’s Exemption 4 authorizes an agency to withhold statute. As another example, although FOIA’s Exemption 4 authorizes an agency to withhold
certain confidential “commercial or financial information” and trade secrets,certain confidential “commercial or financial information” and trade secrets,~~168~~165 the Trade Secrets the Trade Secrets
Act (TSA)Act (TSA)~~169~~166 imposes criminal penalties for disclosing certain confidential materials if disclosure imposes criminal penalties for disclosing certain confidential materials if disclosure
is not “authorized by law.”is not “authorized by law.”~~170~~167 Thus, while Exemption 4 grants agencies Thus, while Exemption 4 grants agencies discretion to withhold to withhold
information covered by both the exemption and the TSA, the TSA information covered by both the exemption and the TSA, the TSA ~~would~~ ~~prohibit~~prohibits the the
unauthorized disclosure of the information.unauthorized disclosure of the information.~~171~~168 Ultimately, however, if records within FOIA’s Ultimately, however, if records within FOIA’s
coverage are not exempt under FOIA or prohibited from being disclosed by another law, an coverage are not exempt under FOIA or prohibited from being disclosed by another law, an
agency must disclose such records upon request.agency must disclose such records upon request.~~172~~169
Under certain circumstances, an agency may be held to have waived its ability to apply an Under certain circumstances, an agency may be held to have waived its ability to apply an
exemption to a requested record due to its prior disclosure of information. For example, the D.C. exemption to a requested record due to its prior disclosure of information. For example, the D.C.
Circuit has “held .Circuit has “held . . .. that the government cannot rely on an otherwise valid exemption claim to . that the government cannot rely on an otherwise valid exemption claim to
justify withholding information that has been ‘officially acknowledged’ or is in the ‘public justify withholding information that has been ‘officially acknowledged’ or is in the ‘public
domain.’”domain.’”~~173~~170 Courts Courts ~~often have~~ have often held that an agency’s prior disclosure of information to Congress held that an agency’s prior disclosure of information to Congress
has not foreclosed application of an exemption in response to a subsequent FOIA request.has not foreclosed application of an exemption in response to a subsequent FOIA request.~~174~~

~~166~~171 163 See DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, WAIVER AND DISCRETIONARY DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, WAIVER AND DISCRETIONARY
DISCLOSUREDISCLOSURE~~, at 15-~~ 15–16 (Aug. 16 (Aug. ~~28, 2019~~31, 2022) [hereinafter DOJ GUIDE, WAIVER AND DISCRETIONARY DISCLOSURE], ) [hereinafter DOJ GUIDE, WAIVER AND DISCRETIONARY DISCLOSURE],
https://www.justice.gov/https://www.justice.gov/~~oip/page/file/1198006/download~~d9/pages/attachments/2019/08/27/waiver_and_discretionary_disclosure_final.pdf. . See 5 U.S.C. § 552(b)(3)(A)(i). 5 U.S.C. § 552(b)(3)(A)(i).
~~167~~164 See 5 U.S.C. § 552(b)(3). Exemption 3 is discussed below. 5 U.S.C. § 552(b)(3). Exemption 3 is discussed below. See infra “Exemption 3: Matters Exempted by Other
Statutes.”
~~168~~165 5 U.S.C. § 552(b)(4). Exemption 4 is discussed below. 5 U.S.C. § 552(b)(4). Exemption 4 is discussed below. See ~~infra~~ “in fra Exemption 4: Trade Secrets and Commercial or
Financial Information.”
~~169~~166 18 U.S.C. § 1905. 18 U.S.C. § 1905.
~~170~~167 Id.
~~171~~168 See Chrysler Corp. v. Brown, 441 U.S. 281, 291Chrysler Corp. v. Brown, 441 U.S. 281, 291-–94, 31894, 318-–19 (1979). Courts have recognized that “the scope of the 19 (1979). Courts have recognized that “the scope of the
[TSA] is at least co-extensive with that of Exemption 4.” CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1144 (D.C. Cir. [TSA] is at least co-extensive with that of Exemption 4.” CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1144 (D.C. Cir.
1987). Some commentators, however, have expressed skepticism over whether this view remains true given the 1987). Some commentators, however, have expressed skepticism over whether this view remains true given the
Supreme Court’s recent interpretation of Exemption 4’s scope in Supreme Court’s recent interpretation of Exemption 4’s scope in Food Marketing Institute (FMI) v. Argus Leader
Media, 139 S. Ct. 2356 (2019). , 139 S. Ct. 2356 (2019). See, e.g., Bernard Bell, , Bernard Bell, Food Marketing Institute: A Preliminary Assessment (Part II), ,
NOTICE & COMMENT: YALE J. ON REG. (July 8, 2019), https://www.yalejreg.com/nc/food-marketing-institute-a-NOTICE & COMMENT: YALE J. ON REG. (July 8, 2019), https://www.yalejreg.com/nc/food-marketing-institute-a-
preliminary-assessment-part-ii/. preliminary-assessment-part-ii/.
~~172~~169 Cf. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221 (1978) (“Unless the requested material falls within one NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221 (1978) (“Unless the requested material falls within one
of these nine statutory exemptions, FOIA requires that records and material in the possession of federal agencies be of these nine statutory exemptions, FOIA requires that records and material in the possession of federal agencies be
made available on demand to any member of the general public.”). made available on demand to any member of the general public.”).
~~173~~170 Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (citations omitted) Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (citations omitted). ~~See~~; see also NLRB v. Sears, Roebuck & Co., NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 161 (1975) (“W]e hold that if an agency chooses expressly to adopt or incorporate by reference an intra-421 U.S. 132, 161 (1975) (“W]e hold that if an agency chooses expressly to adopt or incorporate by reference an intra-
agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that
memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than
Exemption 5.”); Shell Oil Co. v. IRS, 772 F. Supp. 202, 209 (D. Del. 1991) (“Where an authorized disclosure is Exemption 5.”); Shell Oil Co. v. IRS, 772 F. Supp. 202, 209 (D. Del. 1991) (“Where an authorized disclosure is
voluntarily made to a non-federal party .voluntarily made to a non-federal party . . .. the government waives any claim that the information is exempt from . the government waives any claim that the information is exempt from
disclosure under the deliberative process privilege [of FOIA’s Exemption 5].”). disclosure under the deliberative process privilege [of FOIA’s Exemption 5].”).
~~174~~ 171 See, e.g., Fla. House of Representatives v. U.S. Dep’t of Commerce, 961 F.2d 941, 946 (11th Cir. 1992) (holding , Fla. House of Representatives v. U.S. Dep’t of Commerce, 961 F.2d 941, 946 (11th Cir. 1992) (holding
that the agency’s disclosure of information to Congress did not constitute a waiver because the agency did so “only that the agency’s disclosure of information to Congress did not constitute a waiver because the agency did so “only
under the threat of Congress’s power of subpoena” and, therefore, the “disclosure was involuntary”); Murphy v. Dep’t under the threat of Congress’s power of subpoena” and, therefore, the “disclosure was involuntary”); Murphy v. Dep’t
of Army, 613 F.2d 1151, 1156 (D.C. Cir. 1979) (“[W]e conclude that, to the extent that Congress has reserved to itself of Army, 613 F.2d 1151, 1156 (D.C. Cir. 1979) (“[W]e conclude that, to the extent that Congress has reserved to itself
in [5 U.S.C. § 552(d)] the right to receive information not available to the general public, and actually does receive in [5 U.S.C. § 552(d)] the right to receive information not available to the general public, and actually does receive
~~such information pursuant to that section (whether in the form of documents or otherwise), no waiver occurs of the~~(continued...)
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~~However, whether~~Whether an agency has waived an exemption is necessarily dependent on “the specific an agency has waived an exemption is necessarily dependent on “the specific
nature and circumstances of the prior disclosure.”nature and circumstances of the prior disclosure.”~~175~~172
Exemption 1: National Defense or Foreign Policy
The first FOIA exemption authorizes agencies to withhold certain matters that pertain to “national The first FOIA exemption authorizes agencies to withhold certain matters that pertain to “national
defense or foreign policy.”defense or foreign policy.”~~176 Specifically,~~173 Exemption 1 allows an agency to withhold information Exemption 1 allows an agency to withhold information
that is “(A) specifically authorized under criteria established by an Executive order to be kept that is “(A) specifically authorized under criteria established by an Executive order to be kept
secret in the interest of national defense or foreign policy and (B) [which is] in fact properly secret in the interest of national defense or foreign policy and (B) [which is] in fact properly
classified pursuant to such Executive order.”classified pursuant to such Executive order.”~~177~~174 This exemption reflects Congress’s interest in This exemption reflects Congress’s interest in
maintaining the confidentiality of information implicating national defense and security.maintaining the confidentiality of information implicating national defense and security.~~178~~
~~However, as~~175 As the text makes the text makes clear, however~~clear~~, not all national-security-related information may be withheld , not all national-security-related information may be withheld
under Exemption 1. Instead, only those national defense or foreign policy matters that have been under Exemption 1. Instead, only those national defense or foreign policy matters that have been
properly classified through an applicable executive order are covered.properly classified through an applicable executive order are covered.~~179~~176
At present, Executive Order At present, Executive Order ~~13526~~13,526 primarily governs the classification of national security primarily governs the classification of national security
information by the executive branch.information by the executive branch.~~180~~177 The executive order prescribes the procedures for The executive order prescribes the procedures for
classifying national security information and lists the categories of information to which the order classifying national security information and lists the categories of information to which the order
applies, which include “military plans, weapons systems, or operations”; “scientific, applies, which include “military plans, weapons systems, or operations”; “scientific,
technological, or economic matters relating to technological, or economic matters relating to ~~the~~... national security”; and “United States national security”; and “United States
Government programs for safeguarding nuclear materials or facilities.”Government programs for safeguarding nuclear materials or facilities.”~~181~~178 Information that an Information that an
agency seeks to withhold from disclosure under Exemption 1 must satisfy the substantive and agency seeks to withhold from disclosure under Exemption 1 must satisfy the substantive and
procedural requirements contained in Executive Order procedural requirements contained in Executive Order ~~13526.182~~

13,526.179 such information pursuant to that section (whether in the form of documents or otherwise), no waiver occurs of the privileges and exemptions which are available to the executive branch under the FOIA with respect to the public at privileges and exemptions which are available to the executive branch under the FOIA with respect to the public at
large.”); large.”); see also Rockwell Int’l Corp. v. DOJ, 235 F.3d 598, 604 (D.C. Cir. 2001) (acknowledging “that Rockwell Int’l Corp. v. DOJ, 235 F.3d 598, 604 (D.C. Cir. 2001) (acknowledging “that
communications between an agency and Congress would receive protection as intra-agency memoranda [under communications between an agency and Congress would receive protection as intra-agency memoranda [under
Exemption 5] if they were ‘part and parcel of the agency’s deliberative process’” (quoting Dow Jones & Co. v. DOJ, Exemption 5] if they were ‘part and parcel of the agency’s deliberative process’” (quoting Dow Jones & Co. v. DOJ,
917 F.2d 571, 575 (D.C. Cir. 1990)); DOJ GUIDE, WAIVER AND DISCRETIONARY DISCLOSURE, 917 F.2d 571, 575 (D.C. Cir. 1990)); DOJ GUIDE, WAIVER AND DISCRETIONARY DISCLOSURE, supra no note ~~166~~163, at 10 at 10
(“When an agency shares information with Congress, without making an official disclosure of the information to the (“When an agency shares information with Congress, without making an official disclosure of the information to the
public, courts have ruled that this exchange of information does not result in waiver.”); public, courts have ruled that this exchange of information does not result in waiver.”); but see, e.g., , Dow Jones, 917 , 917
F.2d at 575 (explaining that, “[i]n the case at bar, [DOJ] had unquestionably ended its consideration as to whether to F.2d at 575 (explaining that, “[i]n the case at bar, [DOJ] had unquestionably ended its consideration as to whether to
prosecute, or in any other way proceed against, [a Member of Congress] before it sent the letter to Congress” and, prosecute, or in any other way proceed against, [a Member of Congress] before it sent the letter to Congress” and,
“[f]or that reason, we do not think that [DOJ’s] letter to the House Ethics Committee can be withheld under Exemption “[f]or that reason, we do not think that [DOJ’s] letter to the House Ethics Committee can be withheld under Exemption
5.”). 5.”).
~~175~~172 DOJ GUIDE, WAIVER AND DISCRETIONARY DISCLOSURE, DOJ GUIDE, WAIVER AND DISCRETIONARY DISCLOSURE, supra no note ~~166~~163, at 1. at 1.
~~176~~173 5 U.S.C. § 552(b)(1). 5 U.S.C. § 552(b)(1).
~~177~~174 Id.
~~178~~175 See Clark, Clark, supra nonote ~~94,~~ ~~at 298 (citing 112 CONG. REC. 13022 (June 20, 1966) (Statement of Representative Robert~~
Dole)); id. ~~(citing 112 CONG. REC. 13008 (June 20, 1966) (Statement of Representative John Moss))~~92, at 298; Lyndon B. ; Lyndon B.
Johnson, Statement by the President Upon Signing S. 1160 (July 4, 1966). Johnson, Statement by the President Upon Signing S. 1160 (July 4, 1966).
~~179~~176 5 U.S.C. § 552(b)(1). 5 U.S.C. § 552(b)(1).
~~180~~177 DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 1, at 3 ( DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 1, at 3 (~~Aug. 21, 2019~~Mar. 4, 2021) )
[hereinafter DOJ GUIDE, EXEMPTION 1], https://www.justice.gov/[hereinafter DOJ GUIDE, EXEMPTION 1], https://www.justice.gov/~~oip/page/file/1197091/download.~~
~~181~~media/1128106/dl?inline. 178 See, e.g., Exec. Order No. 13,526 §§ 1.4, 1.6, 3 C.F.R. 298 (2010); , Exec. Order No. 13,526 §§ 1.4, 1.6, 3 C.F.R. 298 (2010); id. § 1.4(a), (e), (f). Although Exemption 1 only § 1.4(a), (e), (f). Although Exemption 1 only
applies to information that has been classified pursuant to an applicable executive order, Executive Order No. applies to information that has been classified pursuant to an applicable executive order, Executive Order No. ~~13,526~~13526
specifically authorizes agencies to classify or reclassify, as the case may be, previously undisclosed information upon specifically authorizes agencies to classify or reclassify, as the case may be, previously undisclosed information upon
receipt of a FOIA request. receipt of a FOIA request. Id. § 1.7(d). Such classifications and reclassifications must be made “on a document-by- § 1.7(d). Such classifications and reclassifications must be made “on a document-by-
document basis with the personal participation or under the direction of the agency head” or other senior executive document basis with the personal participation or under the direction of the agency head” or other senior executive
branch official specified in the executive order and comply with the executive order’s requirements.branch official specified in the executive order and comply with the executive order’s requirements. Id.
~~182~~179 See Shoenman v. FBI, 575 F. Supp. 2d 136, 151Shoenman v. FBI, 575 F. Supp. 2d 136, 151-–52 (D.D.C. 2008) (“To show that it has properly withheld 52 (D.D.C. 2008) (“To show that it has properly withheld
information under FOIA Exemption 1, the [agency] must show both that the information was classified pursuant to the information under FOIA Exemption 1, the [agency] must show both that the information was classified pursuant to the
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Exemption 2: Internal Personnel Rules and Practices
~~FOIA’s second exemption applies to records that are comparatively more “routine” and generally~~
~~prone to less public interest than the national-security-related matters agencies may withhold~~
~~under Exemption 1.183 Exemption 2 authorizes agencies to exempt~~Exemption 2 authorizes agencies to withhold from disclosure information from disclosure information
that is “related solely to the internal personnel rules and practices of an agency.”that is “related solely to the internal personnel rules and practices of an agency.”~~184~~180 The Supreme The Supreme
Court has held that “personnel rules and practices” under Exemption 2 are those that address Court has held that “personnel rules and practices” under Exemption 2 are those that address
“employee relations or human resources.”“employee relations or human resources.”~~185~~181 This exemption covers rules and practices pertaining This exemption covers rules and practices pertaining
to “hiring and firing, work rules and discipline, [and] compensation and benefits.”to “hiring and firing, work rules and discipline, [and] compensation and benefits.”~~186~~182 To fall under To fall under
Exemption 2, information must pertain “exclusively or only” to personnel rules and practices,Exemption 2, information must pertain “exclusively or only” to personnel rules and practices,~~187~~
183 and, as the Supreme Court has explained, an “agency must typically keep [such] records to itself and, as the Supreme Court has explained, an “agency must typically keep [such] records to itself
for its own use.”for its own use.”~~188~~184
For years, many courts interpreted this provision to cover not only the employee relations and For years, many courts interpreted this provision to cover not only the employee relations and
humans resources information described abovehumans resources information described above, but also records that were predominantly internal but also records that were predominantly internal
and and ~~whose~~the release release of which would “significantly risk[] circumvention of agency regulations or statutes.” would “significantly risk[] circumvention of agency regulations or statutes.”~~189~~
~~But in~~185 In Milner v. Department of the Navy, , however, the Supreme Court held that this broad view of the Supreme Court held that this broad view of
Exemption 2 contravened the Exemption 2 contravened the ~~ordinary~~plain meaning of “personnel rules and practices”—which the meaning of “personnel rules and practices”—which the
Court read as applying only to employee relations and human resources Court read as applying only to employee relations and human resources ~~records190—and~~

records186—and impermissibly incorporated an extrastatutory “circumvention requirement” into the exemption.187 After Milner, agencies wishing to withhold information that would have previously been covered by this expansive reading of Exemption 2 must base decisions to withhold information on other FOIA exemptions.188 proper procedures, and that the withheld information substantively falls within the scope of [the governing executive proper procedures, and that the withheld information substantively falls within the scope of [the governing executive
order].”); H.R. REP. NO. 1380, at 11order].”); H.R. REP. NO. 1380, at 11-–12 (1974) (Conf. Rep.); S. REP. NO. 1200, at 1112 (1974) (Conf. Rep.); S. REP. NO. 1200, at 11-–12 (1974) (Conf. Rep.); 12 (1974) (Conf. Rep.); see also
DOJ GUIDE, EXEMPTION 1, DOJ GUIDE, EXEMPTION 1, supra nonote ~~180~~177, at 1 at 1~~-2.~~
~~183 Dep’t of Air Force v. Rose, 425 U.S. 352, 370 (1976); cf. id. at 369 (discussing that, as opposed to the case~~
~~summaries of Air Force Academy honor and ethics proceedings at issue in that case, “Exemption 2 is not applicable to~~
~~matters subject to such a genuine and significant public interest”). In Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir. 1973),~~
~~quoted in Rose, 425 U.S. at 365, the D.C. Circuit declared that “the [1965] Senate Report” underlying FOIA “indicates~~
~~that the line sought to be drawn [in Exemption 2] is one between minor or trivial matters”—which are covered by the~~
~~exemption—“and those more substantial matters which might be the subject of legitimate public interest.” 521 F.3d at~~
~~1142.~~
~~184~~–2. 180 5 U.S.C. § 552(b)(2). 5 U.S.C. § 552(b)(2).
~~185~~181 Milner v. Dep’t of Navy, 562 U.S. 562, 570 (2011) Milner v. Dep’t of Navy, 562 U.S. 562, 570 (2011). ~~See~~; see also id. at 581 (holding that “Exemption 2, consistent with at 581 (holding that “Exemption 2, consistent with
the plain meaning of the term ‘personnel rules and practices,’ encompasses only records relating to issues of employee the plain meaning of the term ‘personnel rules and practices,’ encompasses only records relating to issues of employee
relations and human resources”). relations and human resources”).
~~186~~182 Id. at 570. at 570.
~~187~~183 Id. at 570 n.4 (defining the “related solely” element of Exemption 2). at 570 n.4 (defining the “related solely” element of Exemption 2).
~~188~~184 Id. (defining the “internal” element of Exemption 2). . (defining the “internal” element of Exemption 2).
~~189~~185 Milner, 562 U.S. at , 562 U.S. at ~~567~~588 (explaining that many courts embraced a bifurcated reading of Exemption 2 that protected (explaining that many courts embraced a bifurcated reading of Exemption 2 that protected
both “materials concerning human resources and employee relations, and .both “materials concerning human resources and employee relations, and . . .. records whose disclosure would risk . records whose disclosure would risk
circumvention of the law”); Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051circumvention of the law”); Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051~~, 1074~~ (D.C. Cir. 1981) (D.C. Cir. 1981), (
~~(en banc) (~~holding “that if a document for which disclosure is sought meets the test of ‘predominant internality,’ and if holding “that if a document for which disclosure is sought meets the test of ‘predominant internality,’ and if
disclosure significantly risks circumvention of agency regulations or statutes, then Exemption 2 exempts the material disclosure significantly risks circumvention of agency regulations or statutes, then Exemption 2 exempts the material
from mandatory disclosure”), from mandatory disclosure”), abrogated by Milner, 562 U.S. 562. The first category of information was protected by , 562 U.S. 562. The first category of information was protected by
what courts referred to as the “Low 2” component of Exemption 2.what courts referred to as the “Low 2” component of Exemption 2. See Milner, 562 U.S., 562 U.S. at 567 (explaining that “the at 567 (explaining that “the
‘Low 2’ exemption” referred to “materials concerning human resources and employee relations”);‘Low 2’ exemption” referred to “materials concerning human resources and employee relations”); see also Schiller v. Schiller v.
~~NLRB,~~ N.L.R.B., 964 F.2d 1205964 F.2d 1205~~, 1207~~ (D.C. Cir. 1992) (D.C. Cir. 1992), (explaining that “[p]redominantly internal documents that deal with (explaining that “[p]redominantly internal documents that deal with
trivial administrative matters fall under the ‘low 2’ exemption”), trivial administrative matters fall under the ‘low 2’ exemption”), abrogated by Milner, 562 U.S. 562. The second was , 562 U.S. 562. The second was
protected by the exemption’s so-called High 2 component.protected by the exemption’s so-called High 2 component. See Milner, 562 U.S. at 567; , 562 U.S. at 567; see also Schiller, 964 F.2d at , 964 F.2d at
1207 (“Predominantly internal documents the disclosure of which would risk circumvention of agency statutes and 1207 (“Predominantly internal documents the disclosure of which would risk circumvention of agency statutes and
regulations are protected by the so-called ‘high 2’ exemption.”), regulations are protected by the so-called ‘high 2’ exemption.”), abrogated by Milner, 562 U.S. 562. , 562 U.S. 562. See DOJ, OFFICE DOJ, OFFICE
OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 2, at 4OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 2, at 4~~-5 (May 7, 2019~~–5 (June 12, 2023) )
https://www.justice.gov/https://www.justice.gov/~~oip/foia-guide/exemption_2/download.~~
~~190~~d9/2023-06/06.12.23._-_exemption_2.pdf. 186 Milner, 562 U.S., 562 U.S. at 581 (holding that “Exemption 2, consistent with the plain meaning of the term ‘personnel rules at 581 (holding that “Exemption 2, consistent with the plain meaning of the term ‘personnel rules
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~~impermissibly incorporated an extrastatutory “circumvention requirement” into the exemption.191~~
~~After Milner, agencies wishing to withhold information that would have previously qualified as~~
~~High 2 information must locate possible alternatives to Exemption 2 in other FOIA~~
~~exemptions.192~~
~~Exemption 3: Matters Exempted by Other Statutes~~
~~With the exceptions of Exemptions 8 and 9, exemptions for information on a particularly specific~~
~~subject or issue tend to be governed by FOIA’s third exemption.193~~ and practices,’ encompasses only records relating to issues of employee relations and human resources”). 187 Id. at 573 (declaring that the application of Exemption 2 to records not pertaining to employee relations and human resources “ignores the plain meaning of the adjective ‘personnel,’ and adopts a circumvention requirement with no basis or referent in Exemption 2’s language”). 188 See id. Congressional Research Service 23 link to page 28 link to page 29 The Freedom of Information Act (FOIA): A Legal Overview Exemption 3: Matters Exempted by Other Statutes Exemption 3 generally allows Exemption 3 generally allows
agencies to withhold information if it is “specifically exempted from disclosure by” a non-FOIA agencies to withhold information if it is “specifically exempted from disclosure by” a non-FOIA
statute.statute.~~194 In other words, disclosure under Exemption 3 is determined not by the category of~~
~~information at issue, but rather by the information’s protection by another statute.195~~189 In other words, if a separate statute declares that certain materials or information is not subject to disclosure, FOIA authorizes an agency to withhold those records under Exemption 3.190 Congress has Congress has
enacted a variety of statutes that prohibit or place limitations on the disclosure of information by enacted a variety of statutes that prohibit or place limitations on the disclosure of information by
the government. These statutory confidentiality requirements cover a wide range of information, the government. These statutory confidentiality requirements cover a wide range of information,
~~including such diverse categories as information pertaining to~~such as visa determinations, visa determinations,~~196~~ 191 drug pricing drug pricing
data,data,~~197~~192 patent applications, patent applications,~~198~~193 and tax returns and tax returns~~,199 to name but a few.~~.194
Congress, however, did not intend for Exemption 3 to apply to Congress, however, did not intend for Exemption 3 to apply to every statute that authorizes or statute that authorizes or
requires the withholding of information.requires the withholding of information.~~200~~195 Congress limited the exemption’s coverage to two Congress limited the exemption’s coverage to two
particular categories of statutes “to assure,” as the D.C. Circuit has particular categories of statutes “to assure,” as the D.C. Circuit has ~~written~~concluded, “that basic policy , “that basic policy
decisions on governmental secrecy be made by the Legislative rather than the Executive decisions on governmental secrecy be made by the Legislative rather than the Executive
branch.”branch.”~~201~~196 The first category of laws that The first category of laws that qualify under Exemption 3 Exemption 3 ~~covers are statutes that direct agencies to~~

~~and practices,’ encompasses only records relating to issues of employee relations and human resources”).~~
~~191 Id. at 573 (declaring that “[t]he High 2 test ignores the plain meaning of the adjective ‘personnel,’ and adopts a~~
~~circumvention requirement with no basis or referent in Exemption 2’s language,” and stating that “High 2 is better~~
~~labeled ‘Non 2’ (and Low 2 . . . just 2)”).~~
~~192 See Stuessy, supra note 25, at 18.~~
~~193 Exemptions 8 and 9 are discussed below. See infra “Exemption 8: Financial Institution Reports” &~~ ~~“Exemption 9:~~
~~Geological and Geophysical Information and Data Concerning Wells.”~~
~~194~~are statutes that direct agencies to withhold information “from the public in such a manner as to leave no discretion on the issue.”197 The second category embraces statutes that “establish[] particular criteria for withholding or refer[] to particular types of matters to be withheld.”198 In American Jewish Congress v. Kreps, the D.C. Circuit explained that the first category “embraces only those statutes incorporating a congressional mandate of confidentiality that, however general, is absolute and 189 5 U.S.C. § 552(b)(3); 5 U.S.C. § 552(b)(3); cf. H.R. REP. NO. 1497, at 10 (1966) (writing in regard to the first iteration of Exemption 3 that H.R. REP. NO. 1497, at 10 (1966) (writing in regard to the first iteration of Exemption 3 that
“[t]here are nearly 100 statutes or parts of statutes which restrict public access to specific Government records. These “[t]here are nearly 100 statutes or parts of statutes which restrict public access to specific Government records. These
would not be modified by [FOIA].”). The exemption explicitly states that the Sunshine Act is not an Exemption 3 would not be modified by [FOIA].”). The exemption explicitly states that the Sunshine Act is not an Exemption 3
statute. 5 U.S.C. § 552(b)(3). statute. 5 U.S.C. § 552(b)(3).
~~195~~190 Cf. Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978) (“[T]he sole issue for decision is the existence of a relevant Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978) (“[T]he sole issue for decision is the existence of a relevant
statute and the inclusion of withheld material within that statute’s coverage.”). statute and the inclusion of withheld material within that statute’s coverage.”).
~~196~~191 See 8 U.S.C. § 1202(f);8 U.S.C. § 1202(f); see also Medina-Hincapie v. Dep’t of State, 700 F.2d 737, 741 (D.C. Cir. 1983) (holding Medina-Hincapie v. Dep’t of State, 700 F.2d 737, 741 (D.C. Cir. 1983) (holding
that § 1202(f) is an Exemption 3 withholding statute). that § 1202(f) is an Exemption 3 withholding statute).
~~197~~192 See 42 U.S.C. § 1396r-8(b)(3)(D). 42 U.S.C. § 1396r-8(b)(3)(D).
~~198~~193 See 35 U.S.C. § 122(a); 35 U.S.C. § 122(a); see also Irons & Sears v. Dann, 606 F.2d 1215, 1220 Irons & Sears v. Dann, 606 F.2d 1215, 1220-–21 (D.C. Cir. 1979) (holding that 21 (D.C. Cir. 1979) (holding that
§ 122 is an Exemption 3 withholding statute). § 122 is an Exemption 3 withholding statute).
~~199~~194 See 26 U.S.C. § 6103(a); 26 U.S.C. § 6103(a); see also Adamowicz v. IRS, 402 F. App’x 648, 652 (2d Cir. 2010) (holding information Adamowicz v. IRS, 402 F. App’x 648, 652 (2d Cir. 2010) (holding information
exempt under Exemption 3 and § 6103(a)). exempt under Exemption 3 and § 6103(a)).
~~200~~195 H.R. REP. NO. 1441, at 14 (1976) (Conf. Rep.). H.R. REP. NO. 1441, at 14 (1976) (Conf. Rep.).
~~201~~196 Am. Jewish Cong. v. Kreps, 574 F.2d 624, 628 (D.C. Cir. 1978). The conference report Am. Jewish Cong. v. Kreps, 574 F.2d 624, 628 (D.C. Cir. 1978). The conference report ~~underlying~~accompanying the 1976 the 1976
amendments to FOIA, which imposed the limitations to Exemption 3 discussed in this paragraph, amendments to FOIA, which imposed the limitations to Exemption 3 discussed in this paragraph, see infra text text
accompanying notesaccompanying notes ~~202-207,~~ 197–202, explained that the limitations were a response to the Supreme Court’s decision in explained that the limitations were a response to the Supreme Court’s decision in
Administrator, Federal Aviation Administration (FAA) v. Robertson, 422 U.S. 255 (1975). , 422 U.S. 255 (1975). See H.R. REP. NO. 1441, at H.R. REP. NO. 1441, at
14 (1976) (Conf. Rep.). Section 1104 of the Federal Aviation Act of 1958 provided that the FAA Administrator shall 14 (1976) (Conf. Rep.). Section 1104 of the Federal Aviation Act of 1958 provided that the FAA Administrator shall
withhold certain information where, in the Administrator’s opinion, disclosure “would adversely affect the interests of” withhold certain information where, in the Administrator’s opinion, disclosure “would adversely affect the interests of”
a person objecting to its disclosure and would not be “required a person objecting to its disclosure and would not be “required in the interest of the public.” 49 U.S.C. § 1504 (1976) .” 49 U.S.C. § 1504 (1976)
(quoted in (quoted in Robertson, 422 U.S. at 258 n.4 (emphasis added)). The , 422 U.S. at 258 n.4 (emphasis added)). The Robertson Court held that Section 1104, with its Court held that Section 1104, with its
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~~withhold information “from the public in such a manner as to leave no discretion on the issue.”202~~
~~The second embraces statutes that “establish[] particular criteria for withholding or refer[] to~~
~~particular types of matters to be withheld.”203 In American Jewish Congress v. Kreps, the D.C.~~
~~Circuit explained that the first category “embraces only those statutes incorporating a~~
~~congressional mandate of confidentiality that, however general, is absolute and without~~
~~exception.”204 The second category, however, “does leave room for administrative discretion”;205~~
~~statutes embraced by that category cabin or direct an agency’s discretion by specific standards or~~
~~criteria.206 A record must fall within the terms of a statute embraced by either category to fall~~
~~under Exemption 3.207~~broad grant of authority to the FAA Administrator to determine whether disclosure was in the public interest, was a withholding statute under Exemption 3. See 422 U.S. at 266–67. The subsequent 1976 amendment to Exemption 3 was “intend[ed] ... to overrule the decision of the Supreme Court in ... Robertson,” H.R. REP. NO. 1441, at 14 (1976) (Conf. Rep.), and “exclude from its compass laws ... which Congress perceived as giving the agency carte blanche to withhold any information [it] pleases,” Kreps, 574 F.2d at 627 (alteration in original) (quoting H.R. REP. NO. 880, pt. I, at 23 (1976)). 197 5 U.S.C. § 552(b)(3)(A)(i). 198 Id. § 552(b)(3)(A)(ii). For examples of statutes courts have found qualify under this category, see DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 3, at 15–26 (June 2, 2021) [hereinafter DOJ GUIDE, EXEMPTION 3], https://www.justice.gov/media/1144226/dl?inline . Congressional Research Service 24 link to page 6 link to page 28 The Freedom of Information Act (FOIA): A Legal Overview without exception.”199 The second category “leave[s] room for administrative discretion.”200 Statutes included in that category cabin or direct an agency’s discretion by specific standards or criteria.201 A record must fall within the terms of a statute covered by either category of Exemption 3 for it to be withheld by an agency pursuant to Exemption 3.202
Exemption 3 limits the universe of statutes subject to its coverage in one additional way. Any Exemption 3 limits the universe of statutes subject to its coverage in one additional way. Any
statute enacted after the date of the OPEN FOIA Act of statute enacted after the date of the OPEN FOIA Act of ~~2009208~~2009203 must “specifically cite[] to” the must “specifically cite[] to” the
exemption to qualify as an Exemption 3 withholding statute.exemption to qualify as an Exemption 3 withholding statute.~~209 Courts, accordingly,~~204 Accordingly, courts have held have held
that statutes enacted after October 28, 2009, that fail to citethat statutes enacted after October 28, 2009, that fail to cite to Exemption 3 do not qualify as Exemption 3 do not qualify as an
~~exemption statute~~exemption statutes under FOIA, even if they would otherwise fall within the first two categories under FOIA, even if they would otherwise fall within the first two categories
described above.described above.~~210~~

~~broad grant of authority to the FAA Administrator to determine whether disclosure was in the public interest, was a~~
~~withholding statute under Exemption 3. See 422 U.S. at 266-67. The subsequent 1976 amendment to Exemption 3 was~~
~~“intend[ed] . . . to overrule the decision of the Supreme Court in . . . Robertson,” H.R. REP. NO. 1441, at 14 (1976)~~
~~(Conf. Rep.), and “exclude from its compass laws . . . which Congress perceived as giving the agency carte blanche to~~
~~withhold any information [it] pleases,” Kreps, 574 F.2d at 628 (alteration in original) (internal quotation marks~~
~~omitted) (quoting H.R. REP. NO. 880, pt. I, at 23 (1976)).~~
~~202 5 U.S.C. § 552(b)(3)(A)(i).~~
~~203 Id. § 552(b)(3)(A)(ii). For examples of statutes courts have found qualify under this category, see DOJ, OFFICE OF~~
~~INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 3, at 15-26 (Aug. 20, 2019) [hereinafter DOJ~~
~~GUIDE, EXEMPTION 3], https://www.justice.gov/oip/page/file/1197096/download.~~
204 Kreps~~, 574 F.2d at 628 (internal quotation marks and~~ 205 Exemption 4: Trade Secrets and Commercial or Financial Information FOIA’s Exemption 4 authorizes agencies to exempt from disclosure many types of sensitive information that individuals and entities from outside the federal government transmit to the government. Third parties regularly submit an enormous amount of sensitive proprietary information to the federal government, including in such varied situations as military and other government contracts,206 settlement negotiations with agencies,207 and applications for drug 199 Kreps, 574 F.2d at 628 (internal citation omitted);citation omitted); see Baldrige v. Shapiro, 455 U.S. 345, 352 Baldrige v. Shapiro, 455 U.S. 345, 352
(1982) (explaining that the first disjunctive prong requires that a “statute afford[] the agency no discretion on (1982) (explaining that the first disjunctive prong requires that a “statute afford[] the agency no discretion on
disclosure”). disclosure”).
~~205~~ 200 Kreps, 574 F.2d at 628; , 574 F.2d at 628; cf. Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979) (writing that “the mere Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979) (writing that “the mere
presence of some residual administrative discretion does not take [the statute under review] out of Exemption 3”). presence of some residual administrative discretion does not take [the statute under review] out of Exemption 3”).
~~206~~201 Legal & Safety Legal & Safety ~~Emplr. Research~~Emp. Rsch., Inc. v. U.S. Dep Inc. v. U.S. Dep’'t of t of the Army, No. CIV.S001748WBS/JFM, 2001 WL 34098652~~Army, No. S-00-1748 WBS/JFM, 2001 U.S. Dist. LEXIS~~
~~26278, at *10~~ (E.D. Cal. May (E.D. Cal. May 74, 2001) (explaining that “[t]o satisfy subsection [(A)(ii)], a statute must limit agency , 2001) (explaining that “[t]o satisfy subsection [(A)(ii)], a statute must limit agency
discretion to a particular item or class of items, or it must limit agency discretion by prescribing guidelines for the discretion to a particular item or class of items, or it must limit agency discretion by prescribing guidelines for the
exercise of that discretion”) (citing Long v. IRS, 742 F.2d 1173, 1178 (9th Cir. 1984));exercise of that discretion”) (citing Long v. IRS, 742 F.2d 1173, 1178 (9th Cir. 1984)); see also 2 O’REILLY, O’REILLY, supra ~~note~~
25note 22, § 13:1, at 350-51 (writing that Exemption 3 “applies to information which is required by statute to be held in § 13:1, at 350-51 (writing that Exemption 3 “applies to information which is required by statute to be held in
confidence; is permitted to be held in confidence by particular statutory criteria; or is permitted to be withheld by the confidence; is permitted to be held in confidence by particular statutory criteria; or is permitted to be withheld by the
agency upon a statutory reference to one particularly type of information”) (emphasis omitted). One court has agency upon a statutory reference to one particularly type of information”) (emphasis omitted). One court has
explained that Exemption 3’s second category applies to statutes that “provide a measurable yardstick for [agencies] to explained that Exemption 3’s second category applies to statutes that “provide a measurable yardstick for [agencies] to
use in determining whether disclosure is permissible.” Nat’l Western Life Ins. Co. v. United States, 512 F. Supp. 454, use in determining whether disclosure is permissible.” Nat’l Western Life Ins. Co. v. United States, 512 F. Supp. 454,
459 (N.D. Tex. 1980). For examples of statutes courts have found qualify under the second category of Exemption 3 459 (N.D. Tex. 1980). For examples of statutes courts have found qualify under the second category of Exemption 3
statutes, see DOJ GUIDE, EXEMPTION 3, statutes, see DOJ GUIDE, EXEMPTION 3, supra no note ~~203~~198, at 26 at 26-–44. 44.
~~207~~202 Cf. CIA v. Sims, 471 U.S. 159, 167 (1985). Therefore, a court’s inquiry under Exemption 3 requires that it CIA v. Sims, 471 U.S. 159, 167 (1985). Therefore, a court’s inquiry under Exemption 3 requires that it
determine both that a given statute qualifies as an Exemption 3 withholding statute determine both that a given statute qualifies as an Exemption 3 withholding statute and that the records that have been that the records that have been
requested are protected by the statute. requested are protected by the statute. See id.;; see also A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138, 143 (D.C. Cir. A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138, 143 (D.C. Cir.
1994) (“The two threshold criteria needed to obtain exemption 3 exclusion from public disclosure are that (1) the 1994) (“The two threshold criteria needed to obtain exemption 3 exclusion from public disclosure are that (1) the
statute invoked qualifies as an exemption 3 withholding statute, and (2) the materials withheld fall within that statute’s statute invoked qualifies as an exemption 3 withholding statute, and (2) the materials withheld fall within that statute’s
scope.”). scope.”).
~~208~~203 Pub. L. No. 111-83, 123 Stat. 2184 (2009). Pub. L. No. 111-83, 123 Stat. 2184 (2009).
~~209~~204 5 U.S.C. § 552(b)(3)(B) (providing that Exemption 3 only applies to a statute “enacted after the date of enactment of 5 U.S.C. § 552(b)(3)(B) (providing that Exemption 3 only applies to a statute “enacted after the date of enactment of
the OPEN FOIA Act of 2009” if it “specifically cites to this paragraph”). the OPEN FOIA Act of 2009” if it “specifically cites to this paragraph”).
~~210 See, e.g., Everytown for Gun Safety Support Fund v. BATFE, No. 18-cv-2296 (AJN), 2019 U.S. Dist. LEXIS~~
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~~Exemption 4: Trade Secrets and Commercial or Financial~~
~~Information~~
~~Third parties regularly submit an enormous amount of sensitive proprietary information to the~~
~~federal government, including in such varied situations as military and other government~~
~~contracts;211 settlement negotiations with agencies;212 and applications for drug approvals by the~~
~~Food and Drug Administration.213 FOIA’s Exemption 4 authorizes agencies to exempt from~~
~~disclosure many types of sensitive information that individuals and entities from outside the~~
~~federal government transmit to the government. Specifically, the exemption protects (1) “trade~~
~~secrets” and (2) “commercial or financial information obtained from a person . . . [that is]~~
~~privileged or confidential.”214~~
~~The D.C. Circuit defines a “trade secret” for purposes of Exemption 4 as any~~
~~secret,~~ 205 See, e.g., Long v. ICE, 149 F. Supp. 3d 39, 54 (D.D.C. 2015) (holding that the Federal Information Security Modernization Act of 2014, Pub. L. No. 113-283, 128 Stat. 3073 was not a withholding statute under Exemption 3 because, inter alia, it failed to cite to Exemption 3 despite the fact that it “was enacted after the OPEN FOIA Act of 2009”). But see Everytown for Gun Safety Support Fund v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 984 F.3d 39 (2d Cir. 2020) (quoting Dorsey v. United States, 567 U.S. 260, 275 (2012)) (holding that the OPEN FOIA Act provides a “background principle of interpretation” that Congress can depart from in a later statute without complying with Exemption 3’s citations requirement). 206 See, e.g., McDonnell Douglas Corp. v. U.S. Dep’t of Air Force, 375 F.3d 1182, 1185 (D.C. Cir. 2004). 207 See, e.g., M/A-Com Inf. Sys. v. HHS, 656 F. Supp. 691, 692 (D.D.C. 1986). Congressional Research Service 25 link to page 31 link to page 31 The Freedom of Information Act (FOIA): A Legal Overview approvals by the Food and Drug Administration.208 Therefore, Exemption 4 protects (1) “trade secrets” and (2) “commercial or financial information obtained from a person ... [that is] privileged or confidential.”209 The D.C. Circuit defines a “trade secret” for purposes of Exemption 4 as any “secret, commercially valuable plan, formula, process, or device that is used for the making, commercially valuable plan, formula, process, or device that is used for the making,
preparing, compounding, or processing of trade commodities and that can be said to be the preparing, compounding, or processing of trade commodities and that can be said to be the
end product of either innovation or substantial effort.end product of either innovation or substantial effort.~~215~~”210
Courts have interpreted the exemption to Courts have interpreted the exemption to ~~embrace~~cover a broad range of information, allowing, for a broad range of information, allowing, for
example, agencies to exempt as trade secrets “documents contain[ing] information consisting of example, agencies to exempt as trade secrets “documents contain[ing] information consisting of
drug product manufacturing information, including manufacturing processes or drug chemical drug product manufacturing information, including manufacturing processes or drug chemical
composition and specifications,”composition and specifications,”~~216~~211 as well as “information regarding the quantities of menthol as well as “information regarding the quantities of menthol
contained in cigarettes by brand and by quantity in each brand and subbrand.”contained in cigarettes by brand and by quantity in each brand and subbrand.”~~217~~

~~140108, at *25 (S.D.N.Y. Aug. 19, 2019); Long v. ICE, 149 F. Supp. 3d 39, 54 (D.D.C. 2015) (holding that the Federal~~
~~Information Security Modernization Act of 2014, Pub. L. No. 113-283, 128 Stat. 3073 was not a withholding statute~~
~~under Exemption 3 because, inter alia, it failed to cite to Exemption 3 despite the fact that it “was enacted after the~~
~~OPEN FOIA Act of 2009”).~~
~~211 See, e.g., McDonnell Douglas Corp. v. U.S. Dep’t of Air Force, 375 F.3d 1182, 1185 (D.C. Cir. 2004).~~
~~212 See, e.g., M/A-Com Inf. Sys. v. HHS, 656 F. Supp. 691, 692 (D.D.C. 1986).~~
~~213 See 21 U.S.C. § 355.~~
~~214 5 U.S.C. § 552(b)(4).~~
~~215~~212 Most Exemption 4 litigation, however, does not concern trade secrets but rather information potentially exempt under the “commercial or financial information” prong of Exemption 4.213 Under that prong, materials may be withheld under FOIA if they (1) constitute “commercial or financial information,”214 (2) have been supplied to an agency by a “person,”215 and (3) are “privileged or confidential.”216 While each element of the prong must be satisfied for information 208 See 21 U.S.C. § 355. 209 5 U.S.C. § 552(b)(4). 210 Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1289 (D.C. Cir. 1983); Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1289 (D.C. Cir. 1983); accord Anderson v. HHS, 907 Anderson v. HHS, 907
F.2d 936, 943F.2d 936, 943-–44 (10th Cir. 1990). In 44 (10th Cir. 1990). In Public Citizen Health Research Group, , 704 F.2d at 1288, the D.C. Circuit rejected the argument the D.C. Circuit rejected the argument
that FOIA adopted the that FOIA adopted the Restatement (First) of Torts’ definition of “trade secret.” ’ definition of “trade secret.” ~~704 F.2d at 1288.~~ That definition That definition
provides that “[a] trade secret may consist of any formula, pattern, device or compilation of information which is used provides that “[a] trade secret may consist of any formula, pattern, device or compilation of information which is used
in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use
it.” RESTATEMENT (FIRST) OF TORTS § 757 cmt. b (1939). The court held that “the broad it.” RESTATEMENT (FIRST) OF TORTS § 757 cmt. b (1939). The court held that “the broad Restatement approach . approach . . .. [is] . [is]
inconsistent with the language of the FOIA and its underlying policies” because (1) FOIA’s legislative history offers no inconsistent with the language of the FOIA and its underlying policies” because (1) FOIA’s legislative history offers no
evidence in support of such an expansive definition, (2) the definition contained in the evidence in support of such an expansive definition, (2) the definition contained in the Restatement “renders “renders
meaningless the second prong of Exemption 4,” and (3) the meaningless the second prong of Exemption 4,” and (3) the Restatement’s definition “is ill-suited for the public law ’s definition “is ill-suited for the public law
context in which FOIA determinations must be made.” context in which FOIA determinations must be made.” Pub. Citizen Health Research Grp., 704 F.2d at 1288, 704 F.2d at 1288-–89. 89.
Accordingly, the court’s basis for finding that the Accordingly, the court’s basis for finding that the Restatement’s definition of “trade secret” would leave the ’s definition of “trade secret” would leave the
“commercial or financial information” prong of Exemption 4 meaningless was at least partially based on the fact that “commercial or financial information” prong of Exemption 4 meaningless was at least partially based on the fact that
the term “confidential” under Exemption 4 included, under the test then in use by the D.C. Circuit, information whose the term “confidential” under Exemption 4 included, under the test then in use by the D.C. Circuit, information whose
disclosure was “likely .disclosure was “likely . . .. to cause substantial harm to the competitive position of the person from whom [] information . to cause substantial harm to the competitive position of the person from whom [] information
was obtained.” Natwas obtained.” Nat’'l Parks & l Parks & ~~Conserv. Ass’~~Conservation Ass'n v. Morton, 498 F.2d 765n v. Morton, 498 F.2d 765~~, 770 (D.C. Cir. 1974)~~ (D.C. Cir. 1974), abrogated by Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 204 L. Ed. 2d 742 (2019). It is worth noting that, as . It is worth noting that, as
discussed below, the Supreme Court subsequently rejected that definition of “confidential” for Exemption 4 in discussed below, the Supreme Court subsequently rejected that definition of “confidential” for Exemption 4 in FMI v.
Argus Leader Media, 139 S. Ct. 2356 (2019). , 139 S. Ct. 2356 (2019). See infra text accompanying text accompanying ~~notes 223-225.~~
~~216~~notes 219–221. 211 Appleton v. FDA, 451 F. Supp. 2d 129, 141 (D.D.C. 2006). Appleton v. FDA, 451 F. Supp. 2d 129, 141 (D.D.C. 2006).
~~217~~212 Rozema v. HHS, 167 F. Supp. 3d 324, 328, 340 Rozema v. HHS, 167 F. Supp. 3d 324, 328, 340-–41 (N.D.N.Y. 2016) (citation omitted). 213 DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 4, at 4 (Dec. 16, 2021) [hereinafter DOJ GUIDE, EXEMPTION 4], https://www.justice.gov/media/1181316/dl?inline (“The overwhelming majority of Exemption 4 cases focus on this standard.”). 214 Courts have accorded “the terms ‘commercial’ and ‘financial’ in the exemption ... their ordinary meanings.” Pub. Citizen Health Research Grp., 704 F.2d at 1290; see, e.g., Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 802 F. Supp. 2d 185, 204 (D.D.C. 2011) (“‘Commercial’ is defined broadly to include ‘records that reveal basic commercial operations or relate to income-producing aspects of a business’ as well as situations where the ‘provider of the information has a commercial interest in the information submitted to the agency.’” (quoting Baker & Hostetler, LLP v. United States Dep’t of Commerce, 473 F.3d 312, 319, 374 (D.C. Cir. 2006))). 215 See 5 U.S.C. § 551(2) (defining the word “person” to “include[] an individual, partnership, corporation, association, or public or private organization other than an agency”). 216 Id. § 552(b)(4); Pub. Citizen Health Research Grp., 704 F.2d at 1290 (“Information other than trade secrets falls (continued...) Congressional Research Service 26 link to page 32 link to page 32 link to page 30 link to page 53 link to page 53 The Freedom of Information Act (FOIA): A Legal Overview ~~41 (N.D.N.Y. 2016) (internal quotation marks and citation omitted).~~
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~~Most Exemption 4 litigation, however, does not concern trade secrets, but rather information~~
~~potentially exempt under the “commercial or financial information” prong of Exemption 4.218~~
~~Under that prong, materials may be withheld under FOIA if they (1) constitute “commercial or~~
~~financial information,”219 (2) have been supplied to an agency by a “person,”220 and (3) are~~
~~“privileged or confidential.”221 While each element of the prong must be satisfied for information~~
other than a trade secret to qualify as exempt, a particularly significant question courts face in other than a trade secret to qualify as exempt, a particularly significant question courts face in
Exemption 4 litigation is whether commercial or financial information is “confidential” within the Exemption 4 litigation is whether commercial or financial information is “confidential” within the
meaning of Exemption 4.meaning of Exemption 4.~~222~~217
Prior to 2019, the leading test for determining the meaning of “confidential” under the exemption Prior to 2019, the leading test for determining the meaning of “confidential” under the exemption
was developed by the D.C. Circuit in was developed by the D.C. Circuit in National Parks & Conservation Association v. Morton..218
Under the Under the National Parks test, commercial or financial information was deemed confidential “if test, commercial or financial information was deemed confidential “if
disclosure of the information [was] likely .disclosure of the information [was] likely . . .. (1) to impair the Government’s ability to obtain . (1) to impair the Government’s ability to obtain
necessary information in the future; or (2) to cause substantial harm to the competitive position of necessary information in the future; or (2) to cause substantial harm to the competitive position of
the person from whom the information was obtained.”the person from whom the information was obtained.”~~223~~219 Under National Parks, therefore, the courts looked to the effect of disclosing commercial or financial information on the federal government or submitter of information.220 In Food Marketing Institute (FMI) v. Argus Leader Media, however, the Supreme Court rejected the D.C. Circuit’s test and instead held that “[a]t least where commercial or financial information is both [1] customarily and actually treated as private by its owner and [2] provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of Exemption 4.”221 This definition is broader than the National Parks test and permits agencies to ~~Under National Parks, therefore, the~~

~~218 DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 4, at 4 (Oct. 9, 2019)~~
~~[hereinafter DOJ GUIDE, EXEMPTION 4], https://www.justice.gov/oip/page/file/1207891/download (“The overwhelming~~
~~majority of Exemption 4 cases focus on this standard.”).~~
~~219 Courts have accorded “the terms ‘commercial’ and ‘financial’ in the exemption . . . their ordinary meanings.”~~ ~~Pub.~~
~~Citizen Health Research Grp., 704 F.2d at 1290; see, e.g., Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 802 F. Supp.~~
~~2d 185, 204 (D.D.C. 2011) (“‘Commercial’ is defined broadly to include ‘records that reveal basic commercial~~
~~operations or relate to income-producing aspects of a business’ as well as situations where the ‘provider of the~~
~~information has a commercial interest in the information submitted to the agency.’” (quoting Baker & Hostetler, LLP v.~~
~~United States Dep’t of Commerce, 473 F.3d 312, 319, 374 (D.C. Cir. 2006))).~~
~~220 See 5 U.S.C. § 551(2) (defining the word “person” to “include[] an individual, partnership, corporation, association,~~
~~or public or private organization other than an agency”).~~
~~221 Id. § 552(b)(4); Pub. Citizen Health Research Grp., 704 F.2d at 1290 (“Information other than trade secrets falls~~
within the second prong of the exemption if it is shown to be (1) commercial or financial, (2) obtained from a person, within the second prong of the exemption if it is shown to be (1) commercial or financial, (2) obtained from a person,
and (3) privileged or confidential.”). and (3) privileged or confidential.”).
Though the term “confidential” has been subject to considerable litigation, considerably less litigation has focused onThough the term “confidential” has been subject to considerable litigation, considerably less litigation has focused on
the meaning of “privileged” in Exemption 4. the meaning of “privileged” in Exemption 4. Cf. Jordan v. U.S. Dep’t of Labor, 273 F. Supp. 3d 214, 231 (D.D.C. Jordan v. U.S. Dep’t of Labor, 273 F. Supp. 3d 214, 231 (D.D.C.
2017) (noting that “case law examining privilege under Exemption 4 is sparse”) (2017) (noting that “case law examining privilege under Exemption 4 is sparse”) (~~internal quotation marks and~~ citation citation
omitted). The district court in omitted). The district court in Jordan explained that “‘[p]rivileged’ information” for purposes of Exemption 4 “is explained that “‘[p]rivileged’ information” for purposes of Exemption 4 “is
generally understood to be information that falls within recognized constitutional, statutory, or common law generally understood to be information that falls within recognized constitutional, statutory, or common law
privileges.” privileges.” Id. ((~~internal quotation marks and~~ citation omitted). Courts, for example, have held that commercial or citation omitted). Courts, for example, have held that commercial or
financial records were exempt under Exemption 4 on account of their protection under the attorney-client privilege. financial records were exempt under Exemption 4 on account of their protection under the attorney-client privilege. See
e.g.,, id. at 231at 231-–32;32; McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235, 242 (E.D. Mo. 1996). FOIA’s legislative McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235, 242 (E.D. Mo. 1996). FOIA’s legislative
history explicitly mentions the attorney-client privilege and other privileges in relation to Exemption 4. history explicitly mentions the attorney-client privilege and other privileges in relation to Exemption 4. See, e.g., H.R. , H.R.
REP. NO. 1497, at 31 (1966) (stating that Exemption 4 embraces “information customarily subject to the doctor-patient, REP. NO. 1497, at 31 (1966) (stating that Exemption 4 embraces “information customarily subject to the doctor-patient,
lawyer-client, or lender borrower privileges such as technical or financial data submitted by an applicant to a lawyer-client, or lender borrower privileges such as technical or financial data submitted by an applicant to a
Government lending or loan guarantee agency”); Government lending or loan guarantee agency”); accord S. REP. NO. 813, at 44 (1965). Claims that a record is protected S. REP. NO. 813, at 44 (1965). Claims that a record is protected
by the attorney-client privilege in the context of communications with a federal government attorney may implicate by the attorney-client privilege in the context of communications with a federal government attorney may implicate
Exemption 5. Exemption 5. See infra “Exemption 5: Inter- or Intra-Agency Memoranda or Letters.”
~~222~~217 See DOJ GUIDE, EXEMPTION 4, DOJ GUIDE, EXEMPTION 4, supra no note ~~218~~213, at 13. at 13.
~~223~~218 498 F.2d 765 (D.C. Cir. 1974), abrogated by Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 204 L. Ed. 2d 742 (2019). 219 Id. ~~498 F.2d~~ at 770 (footnote omitted). In at 770 (footnote omitted). In Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d , 975 F.2d
871 (D.C. Cir. 1992) (en banc), the D.C. Circuit 871 (D.C. Cir. 1992) (en banc), the D.C. Circuit ~~had~~ limited the limited the National Parks test to situations in which entities were test to situations in which entities were
obligated to provide commercial or financial information to an agency, to provide commercial or financial information to an agency, id. at 879. If a submitter had voluntarily at 879. If a submitter had voluntarily
provided the government with financial or commercial information, the provided the government with financial or commercial information, the Critical Mass court held that such information court held that such information
“is ‘confidential’ .“is ‘confidential’ . . .. if it is of a kind that would customarily not be released to the public by the person from whom it . if it is of a kind that would customarily not be released to the public by the person from whom it
was obtained.” was obtained.” Id. at 879. at 879. Critical Mass was not widely accepted outside of the D.C. Circuit. was not widely accepted outside of the D.C. Circuit. See ~~Pet.~~Petition for a Writ of for a Writ of
Certiorari at 28, FMI v. Argus Media Leader, No. 18-481 (Certiorari at 28, FMI v. Argus Media Leader, No. 18-481 (~~Oct.~~S. Ct. Oct. 11, 2018) (asserting that, “[t]o date, the 2018) (asserting that, “[t]o date, the
voluntary/involuntary voluntary/involuntary Critical Mass test has been adopted by the D.C. and Tenth Circuits”). test has been adopted by the D.C. and Tenth Circuits”).
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~~courts looked to the effect of disclosing commercial or financial information on the federal~~
~~government or submitter of information.224~~
~~But in Food Marketing Institute (FMI) v. Argus Leader Media, the Supreme Court rejected the~~
~~D.C. Circuit’s test and instead held that “[a]t least where commercial or financial information is~~
~~both [1] customarily and actually treated as private by its owner and [2]~~220 See, e.g., Charles River Park “A,” Inc. v. Dep’t of Housing & Urban Dev., 519 F.2d 935, 941 n.4 (D.C. Cir. 1975) (writing that “the National Parks test for confidentiality looks in one instance to the effect of disclosure on the provider of the information”). 221 139 S. Ct. 2356, 2363–66 (2019); see id. at 2367 (Breyer, J., dissenting). As discussed below, see infra Reverse-FOIA Litigation, the definition of “confidential commercial information” in Executive Order 12,600, which governs agencies’ general requirement to notify submitters of information before disclosing certain commercial or confidential information in response to a FOIA response, conflicts with the Supreme Court’s definition of “confidential” in FMI. The executive order defines “confidential commercial information” as “records provided to the provided to the
~~government under an assurance of privacy, the information is ‘confidential’ within the meaning of~~
~~Exemption 4.”225 This definition is broader than the National Parks test and permits agencies to~~
government by a submitter that arguably contain material exempt from release under Exemption 4 ... because disclosure could reasonably be expected to cause substantial competitive harm.” Exec. Order No. 12,600, § 2(a) (Jan. 1, 1987). Congressional Research Service 27 link to page 35 link to page 7 The Freedom of Information Act (FOIA): A Legal Overview withhold a larger category of information from FOIA’s disclosure mandate.withhold a larger category of information from FOIA’s disclosure mandate.~~226 But the~~222 The Supreme Supreme
CourtCourt, however, did not define the precise boundaries of its new test in did not define the precise boundaries of its new test in FMI; although the Court determined ; although the Court determined
that “[a]t least the first condition” must be present for information to qualify as confidential, it did that “[a]t least the first condition” must be present for information to qualify as confidential, it did
not decide whether the government must always provide assurances that information will be kept not decide whether the government must always provide assurances that information will be kept
private in order for information to private in order for information to ~~fall within Exemption 4’s coverage.227~~retain its confidential character and thus fall within Exemption 4’s coverage.223 The Court in FMI explained that it need not reach the issue because the government had provided such assurances of privacy through regulation limiting the public disclosure of the information at issue.224 Although the government had provided assurances of privacy by regulation in FMI, satisfying the second prong of the Court’s test, the Court did not elaborate on the form the assurance of privacy must take in order to satisfy Exemption 4.225
Exemption 5: Inter- or Intra-Agency Memoranda or Letters
Exemption 5 applies to “inter-agency or intra-agency memorandums or letters that would not be Exemption 5 applies to “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.”available by law to a party other than an agency in litigation with the agency.”~~228~~226 The 1966 House The 1966 House
report accompanying the FOIA legislation indicates that the exemption was drafted with the report accompanying the FOIA legislation indicates that the exemption was drafted with the
intention of ensuring the “full and frank exchange of opinions” within the executive branch and intention of ensuring the “full and frank exchange of opinions” within the executive branch and
based on the proposition that requiring an agency to release information prior to finalizing an based on the proposition that requiring an agency to release information prior to finalizing an
action or decision action or decision ~~will~~would hinder its ability to effectively function. hinder its ability to effectively function.~~229~~227 To fall within Exemption 5’s coverage, a document must both (1) qualify as an “inter-agency or intra-agency” document and (2) “fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.”228 Material is “inter-agency or intra agency” if it originates from an “agency,” as that term is defined by FOIA.229 Some courts have also recognized what is known as the “consultant corollary” to Exemption 5, under which the exemption protects certain materials that have been supplied to an agency by external consultants.230 Nonetheless, Exemption 5 does not protect all communications from third-party consultants. In DOI v. Klamath Water Users Protective Association, for example, 222 ~~To fall within Exemption 5’s~~

~~224 See, e.g., Charles River Park “A,” Inc. v. Dep’t of Housing & Urban Dev., 519 F.2d 935, 941 n.4 (D.C. Cir. 1975)~~
~~(writing that “the National Parks test for confidentiality looks in one instance to the effect of disclosure on the provider~~
~~of the information”).~~
225 139 S. Ct. 2356, 2363-66 (2019); see id. at 2367 (Breyer, J., dissenting). As discussed below, see infra ~~“Reverse-~~
~~FOIA Litigation,” the definition of “confidential commercial information” in Executive Order 12,600, which governs~~
~~agencies’ general requirement to notify submitters of information before disclosing certain commercial or confidential~~
~~information in response to a FOIA response, conflicts with the Supreme Court’s definition of “confidential” in FMI.~~
~~The executive order defines “confidential commercial information” as “records provided to the government by a~~
~~submitter that arguably contain material exempt from release under Exemption 4 . . . because disclosure could~~
~~reasonably be expected to cause substantial competitive harm.” Exec. Order No. 12,600, § 2(a) (Jan. 1, 1987).~~
~~226~~ See CRS Legal Sidebar LSB10294, See CRS Legal Sidebar LSB10294, When Does the Government Have to Disclose Private Business Information in
its Possession?, by Daniel J. Sheffner, at 1, by Daniel J. Sheffner, at 1 (2019). 223.
~~227 FMI, 139 S. Ct. at 2363 (“Contemporary dictionaries [from the time of FOIA’s enactment] suggest two conditions~~
~~that might be required for information communicated to another to be considered confidential. In one sense,~~
~~information communicated to another remains confidential whenever it is customarily kept private, or at least closely~~
~~held, by the person imparting it. In another sense, information might be considered confidential only if the party~~
~~receiving it provides some assurance that it will remain secret.”) (citations omitted); id. (explaining that “[a]t least the~~
~~first condition has to be” present for information to qualify as confidential under Exemption 4, but that it was not~~
~~necessary to determine whether “privately held information [may] lose its confidential character for purposes of~~
~~Exemption 4 if it’s communicated to the government without assurances that the government will keep it private,”~~
~~because that condition had been satisfied in the case).~~
~~228~~ FMI, 139 S. Ct. at 2363. 224 Id. 225 Id. 226 5 U.S.C. § 552(b)(5). As discussed below, 5 U.S.C. § 552(b)(5). As discussed below, infra text accompanying no text accompanying note ~~247,~~254. Exemption 5 also provides that the Exemption 5 also provides that the
deliberative process privilege—a discovery privilege incorporated by Exemption 5—does “not apply to records created deliberative process privilege—a discovery privilege incorporated by Exemption 5—does “not apply to records created
25 years or more before the date on which the records were requested.” 5 U.S.C. § 552(b)(5). 25 years or more before the date on which the records were requested.” 5 U.S.C. § 552(b)(5).
~~229~~227 H.R. REP. NO. 1497, at 10 (1966) (“Agency witnesses argued that a full and frank exchange of opinions would be H.R. REP. NO. 1497, at 10 (1966) (“Agency witnesses argued that a full and frank exchange of opinions would be
impossible if all internal communications were made public. They contended, and with merit, that advice from staff impossible if all internal communications were made public. They contended, and with merit, that advice from staff
assistants and the exchange of ideas among agency personnel would not be completely frank if they were forced to assistants and the exchange of ideas among agency personnel would not be completely frank if they were forced to
‘operate in a fishbowl.’ Moreover, a Government agency cannot always operate effectively if it is required to disclose ‘operate in a fishbowl.’ Moreover, a Government agency cannot always operate effectively if it is required to disclose
documents or information which it has received or generated before it completes the process of awarding a contract or documents or information which it has received or generated before it completes the process of awarding a contract or
issuing an order, decision or regulation.”); issuing an order, decision or regulation.”); accord S. REP. NO. 813, at 9 (1965). S. REP. NO. 813, at 9 (1965).
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~~coverage, a document must both (1) qualify as an “inter-agency or intra-agency” document and~~
~~(2) “fall within the ambit of a privilege against discovery under judicial standards that would~~
~~govern litigation against the agency that holds it.”230~~
~~Material is “inter-agency or intra agency” if it originates from an “agency,” as that term is defined~~
~~by FOIA.231 Some courts have also recognized what is known as the “consultant corollary” to~~
~~Exemption 5, under which the exemption protects certain materials that have been supplied to an~~
~~agency by external consultants.232 Nonetheless, Exemption 5 does not protect all such~~
~~communications. In DOI v. Klamath Water Users Protective Association, for example, the~~
~~Supreme Court held that information submitted to DOI by certain American~~ 228 DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001). In this context, a privilege is a protection from required disclosure that is afforded to information or materials under certain circumstances. See, e.g., Privileged, BLACK’S LAW DICTIONARY 598 (4th pkt. ed. 2011) (defining “privileged” as, inter alia, “[n]ot subject to the usual rules or liabilities; esp., not subject to disclosure during the course of a lawsuit”). 229 See Klamath, 532 U.S. at 9; 5 U.S.C. §§ 551(1), 552(f)(1). See also supra “Agency”. 230 Klamath, 532 U.S. at 9–10. See, e.g., McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331, 336 (D.C. Cir. 2011) (explaining that “[u]nder the ‘consultant corollary’ to Exemption 5 ... we interpret ‘intra-agency’ ‘to include agency records containing comments solicited from nongovernmental parties’” (quoting Nat’l Inst. of Military Justice v. DOD, 512 F.3d 677, 680, 682 (D.C. Cir. 2008)). Congressional Research Service 28 The Freedom of Information Act (FOIA): A Legal Overview the Supreme Court held that information submitted to DOI by certain Indian tribes Indian tribes
concerning the allocation of water rights did not constitute “intra-agency” records because the concerning the allocation of water rights did not constitute “intra-agency” records because the
tribes had “communicate[d] with the [agency] with their own, albeit entirely legitimate, interests tribes had “communicate[d] with the [agency] with their own, albeit entirely legitimate, interests
in mind” and sought “a Government benefit at the expense of other applicants.”in mind” and sought “a Government benefit at the expense of other applicants.”~~233~~
231 Although the Court assumed, but did not determine, the existence of the consultant corollary in Klamath, lower courts have recognized the existence of such a corollary.232 In Judicial Watch, Inc. v. Department of Energy, the D.C. Circuit held that despite the Supreme Court’s admonition in Klamath that Exemption 5 be limited to records that are truly inter-agency or intra-agency, a record prepared by a non-agency but held by an agency can still fall within the scope of Exemption 5 if it is also pre-decisional and deliberative.233 In light of the Klamath decision, however, the D.C. Circuit has recognized two elements that must be met in order for the corollary to apply. First, the consultant must not be acting in its self-interest when providing advice to the agency.234 Second, the agency must have actually solicited the advice from the consultant.235 In May 2024, the D.C. Circuit clarified that, to satisfy the first prong of this test, an outside consultant must be “the functional equivalent of an agency employee working on the same matter.”236 In other words, the consultant cannot “have a stake in the outcome of the agency’s process” or “represent an interest of its own” that would “render its advice on the subject anything other than disinterested.”237 An inter- or -intra-agency document will only qualify as exempt if, in the context of pretrial An inter- or -intra-agency document will only qualify as exempt if, in the context of pretrial
discovery, it would not “be discovery, it would not “be ~~routinely or normally~~‘routinely’ or ‘normally’ disclosed upon a showing of relevance” in disclosed upon a showing of relevance” in
litigation against the agency.litigation against the agency.~~234~~238 Accordingly, agency materials that Accordingly, agency materials that would bebe routinely or normally routinely or normally
disclosed in such contexts are not covered by the exemption.disclosed in such contexts are not covered by the exemption.~~235~~239 That a record must be disclosed in That a record must be disclosed in
discovery upon a sufficient showing of need does not remove the record from Exemption 5’s discovery upon a sufficient showing of need does not remove the record from Exemption 5’s
~~protection, as records subject to disclosure in such circumstances “are . . . not ‘routinely’ or~~
~~‘normally’ available to parties in litigation.”236~~
~~The Court has explained that Exemption 5 “incorporates the privileges which the Government~~
~~enjoys under the relevant statutory and case law in the pretrial discovery context.”237 The~~
~~exemption has been construed to embrace privileges mentioned in FOIA’s legislative history, but~~

~~230 DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001). In this context, a privilege is a protection~~
~~from required disclosure that is afforded to information or materials under certain circumstances. See, e.g., Privileged,~~
~~BLACK’S LAW DICTIONARY 598 (4th pkt. ed. 2011) (defining “privileged” as, inter alia, “[n]ot subject to the usual rules~~
~~or liabilities; esp., not subject to disclosure during the course of a lawsuit”).~~
~~231 See Klamath, 532 U.S. at 9; 5 U.S.C. §§ 551(1), 552(f)(1). See also supra “‘“Agency”~~
~~232 Klamath, 532 U.S. at 9-10. See, e.g., McKinley v. Bd. of Governors of~~ 231 Klamath, 532 U.S. at 12 & n.4. The Klamath Court considered whether the exemption applied to the communications at issue “on analogy to consultants’ reports.” Id. at 12. 232 Id. at 12 & n.4; see, e.g., Rojas v. FAA, 989 F.3d 666, 670 (9th Cir. 2021) (en banc); Jobe v. NTSB, 1 F.4th 396, 399–400 (5th Cir. 2021); (“Nat’l Inst. of Mil. Justice v. Dep’t of Defense, 512 F.3d 677, 680, 684 (D.C. Cir. 2008) (holding that the consultant corollary survived the Supreme Court’s decision in Klamath, 532 U.S. at 12, and reasoning that “[w]hen an agency record is submitted by outside consultants as part of the deliberative process, and it was solicited by the agency, we find it entirely reasonable to deem the resulting document to be an ‘intra-agency’ memorandum for purposes of determining the applicability of Exemption 5”); McKinley v. Bd. of Governors of the Fed. Reserve Sys., 647 F.3d 331, 336 (D.C. Fed. Reserve Sys., 647 F.3d 331, 336 (D.C.
~~Cir. 2011) (explaining that “[u]nder the ‘consultant corollary’ to Exemption 5 . . . we interpret ‘intra-agency’ ‘to~~
~~include agency records containing comments solicited from nongovernmental parties’” (quoting Nat’l Inst. of Military~~
~~Justice v. DOD, 512 F.3d 677, 680, 682 (D.C. Cir. 2008))).~~
~~233 Klamath, 532 U.S. at 13 & n.4. The Klamath Court considered whether the exemption applied to the~~
~~communications at issue “on analogy to consultants’ reports.” Id. at 12. The Court assumed, but did not decide, the~~
~~existence of such a corollary. Id. & n.4.~~
~~234 FTC v. Grolier, Inc., 462 U.S. 19, 26 (1983) (internal quotation marks omitted)~~Cir. 2011) (quoting Nat’l Inst. of Mil. Justice, 512 F.3d at 680). 233 412 F.3d 125, 129 (D.C. Cir. 2005) (quoting Ryan v. DOJ, 617 F.2d 781, 790 (D.C. Cir. 1980)). 234 McKinley, 647 F.3d at 336–37 (citing Klamath, 532 U.S. at 12). 235 McKinley, 647 F.3d at 336–37; Nat’l Inst. of Mil. Justice, 512 F.3d at 680. 236 Am. Oversight v. HHS, 101 F.4th 909, 917 (D.C. Cir. 2024). 237 Id. 238 FTC v. Grolier, Inc., 462 U.S. 19, 26 (1983); ; accord Klamath, 532 U.S. at 8; , 532 U.S. at 8;
EPA v. Mink, 410 U.S. 73, 86 (1973) (Exemption 5 “clearly contemplates that the public is entitled to all such EPA v. Mink, 410 U.S. 73, 86 (1973) (Exemption 5 “clearly contemplates that the public is entitled to all such
memoranda or letters that a private party could discover in litigation with the agency.”). memoranda or letters that a private party could discover in litigation with the agency.”).
~~235~~239 Cf. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975) (“[I]t is reasonable to construe Exemption 5 to NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975) (“[I]t is reasonable to construe Exemption 5 to
exempt those documents, and only those documents, normally privileged in the civil discovery context.”). In exempt those documents, and only those documents, normally privileged in the civil discovery context.”). In DOJ v.
Julian, 486 U.S. 1 (1988), the Supreme Court held that Exemption 5 did not authorize the withholding of presentence , 486 U.S. 1 (1988), the Supreme Court held that Exemption 5 did not authorize the withholding of presentence
investigation reports in response to requests made by the subjects of such reports, for while “the courts have typically investigation reports in response to requests made by the subjects of such reports, for while “the courts have typically
required some showing of special need before they will allow a third party to obtain a copy of a presentence report,” the required some showing of special need before they will allow a third party to obtain a copy of a presentence report,” the
Court explained that “there is simply Court explained that “there is simply no privilege preventing disclosure” of such reports to the subjects thereof, privilege preventing disclosure” of such reports to the subjects thereof, id. at at
1212-–15. Congressional Research Service 29 link to page 22 The Freedom of Information Act (FOIA): A Legal Overview protection, as records subject to disclosure in such circumstances are “not ‘routinely’ or ‘normally’ available to parties in litigation.”240 The Supreme Court has explained that Exemption 5 “incorporates the privileges which the Government enjoys under relevant statut[es] and case law in the pretrial discovery context.”241 The exemption has been construed to embrace privileges mentioned in FOIA’s legislative history, but privileges not mentioned may also be incorporated.242 A~~15.~~
~~236 Grolier, 462 U.S. at 27; DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 5,~~
~~at 2 (Aug. 26, 2019), https://www.justice.gov/oip/page/file/1197816/download.~~
~~237 Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975); cf. Martin v. Office of Special~~
~~Counsel, Merit Sys. Prot. Bd., 819 F.2d 1181, 1185 (D.C. Cir. 1987) (“[Exemption 5 incorporates] all civil discovery~~
~~rules into FOIA Exemption (b) (5). Nothing on the face of the provision indicates it incorporates the deliberative~~
~~process privilege in a vacuum.”).~~
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~~privileges not mentioned may also be incorporated.238 However, a~~ privilege not expressly listed in privilege not expressly listed in
the legislative history and considered “novel” or having “less than universal acceptance” would the legislative history and considered “novel” or having “less than universal acceptance” would
be less likely to fall within Exemption 5’s scope.be less likely to fall within Exemption 5’s scope.~~239~~243
Both the Supreme Court and lower federal courts have identified several privileges that Both the Supreme Court and lower federal courts have identified several privileges that
Exemption 5 embraces and that may, therefore, serve as bases for withholding agency documents, Exemption 5 embraces and that may, therefore, serve as bases for withholding agency documents,
including the privileges discussed below. including the privileges discussed below.
Deliberative Process Privilege. The deliberative process privilege is recognized as a component The deliberative process privilege is recognized as a component
of the more general “executive privilege.”of the more general “executive privilege.”~~240~~244 The Supreme Court has explained that the The Supreme Court has explained that the
deliberative process privilege applies to agency “advisory opinions, recommendations and deliberative process privilege applies to agency “advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are deliberations comprising part of a process by which governmental decisions and policies are
formulated.”formulated.”~~241~~245 The privilege protects agency records that are “predecisional” The privilege protects agency records that are “predecisional”~~242~~246 (i.e., they predate (i.e., they predate
an agency decision)an agency decision)~~243~~247 and “deliberative” (i.e., they reflect “the give-and-take of the consultative and “deliberative” (i.e., they reflect “the give-and-take of the consultative
~~process”).244 The privilege does not protect materials that an “agency chooses expressly to adopt~~
~~or incorporate by reference,” nor does it generally cover factual material.245 Notably, the FOIA~~
~~Improvement Act of 2016246 amended Exemption 5 to exclude application of the privilege to~~
~~documents that were “created 25 years or more before the date on which [they] were~~
~~requested.”247~~

~~238~~process”).248 In 2021, the Supreme Court underscored these principles in United States Fish and Wildlife Service v. Sierra Club.249 The Court held that the deliberative process privilege protected documents that might be final in the sense that nothing else follows them but that did not “communicate[] a policy on which the agency has settled.”250 The Court explained that determining whether a document represents the 240 Grolier, 462 U.S. at 27; DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 5, at 2 (Mar. 13, 2023), https://www.justice.gov/d9/pages/attachments/2023/03/13/exemption_5_final.pdf 241 Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975); cf. Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d 1181, 1185 (D.C. Cir. 1987) (“[Exemption 5 incorporates] all civil discovery rules into FOIA Exemption (b) (5). Nothing on the face of the provision indicates it incorporates the deliberative process privilege in a vacuum.”). 242 United States v. Weber Aircraft Corp., 465 U.S. 792, 800 (1984) (explaining that the Court in United States v. Weber Aircraft Corp., 465 U.S. 792, 800 (1984) (explaining that the Court in Federal Open Market
Committee of the Federal Reserve System v. Merrill, 443 U.S. 340 (1979), held “that a privilege that was mentioned in , 443 U.S. 340 (1979), held “that a privilege that was mentioned in
the legislative history of Exemption 5 is incorporated by the Exemptionthe legislative history of Exemption 5 is incorporated by the Exemption —not that all privileges not mentioned are —not that all privileges not mentioned are
excluded”). excluded”).
~~239~~243 Id. at 801; 801; see 3 HICKMAN & PIERCE, JR., 3 HICKMAN & PIERCE, JR., supra no note ~~151~~147, § 21.11, at 2219 (explaining that the § 21.11, at 2219 (explaining that the Weber “Court noted “Court noted
that exemption five is more likely to be held to incorporate ‘well-settled’ privileges than to incorporate privileges that that exemption five is more likely to be held to incorporate ‘well-settled’ privileges than to incorporate privileges that
are ‘novel’ or that have ‘found less than universal acceptance’”). Thus, for example, in are ‘novel’ or that have ‘found less than universal acceptance’”). Thus, for example, in Burka v. Department of Health
& Human Services, 87 F.3d 508 (D.C. Cir. 1996), the D.C. Circuit held that Exemption 5 did not incorporate a , 87 F.3d 508 (D.C. Cir. 1996), the D.C. Circuit held that Exemption 5 did not incorporate a
privilege for “research data .privilege for “research data . . .. on the grounds that disclosure would harm a researcher’s publication prospect” because . on the grounds that disclosure would harm a researcher’s publication prospect” because
such a practice was not “established or well-settled” in civil discovery. such a practice was not “established or well-settled” in civil discovery. Id. at 521. at 521.
~~240~~244 Sears, 421 U.S. at 149 (citing , 421 U.S. at 149 (citing Mink, 410 U.S. at 86, 410 U.S. at 86-–87). For a discussion of executive privilege in the context of 87). For a discussion of executive privilege in the context of
congressional oversight, see CRS Report R45653, congressional oversight, see CRS Report R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance, ,
by Todd Garvey, at 20by Todd Garvey, at 20~~-25.~~
~~241~~–25 (2019). 245 Klamath, 532 U.S. at 8 (, 532 U.S. at 8 (~~internal quotation marks omitted) (~~quoting quoting Sears, 421 U.S. at 150, 421 U.S. at 150)). ).
~~242~~246 See Sears, 421 U.S., 421 U.S. at 151. at 151.
~~243~~247 See Pub. Citizen v. OMB, 598 F.3d 865, 874 (D.C. Cir. 2009). Pub. Citizen v. OMB, 598 F.3d 865, 874 (D.C. Cir. 2009).
~~244~~248 Id. (internal (internal ~~quotation marks and citation omitted).~~
~~245 Sears, 421 U.S. at 161 (“[I]f an agency chooses expressly to adopt or incorporate by reference an intra-agency~~
~~memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may~~
be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5.”); see
~~Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977) (acknowledging that “[m]any~~
~~exemption five disputes may be able to be decided by application of the simple test that factual material must be~~
~~disclosed but advisory material, containing opinions and recommendations, may be withheld”); but see, e.g., Wolfe v.~~
~~HHS, 839 F.2d 768, 774 (D.C. Cir. 1988) (writing that, “[i]n some circumstances, even material that could be~~
~~characterized as ‘factual’ would so expose the deliberative process that it must be covered by the privilege”); City of~~
~~Va. Beach v. U.S. Dep’t of Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993) (internal quotation marks and citation~~
~~omitted) (“[P]urely factual material does not fall within the exemption unless it is inextricably intertwined with~~
~~policymaking processes such that revelation of the factual material would simultaneously expose protected~~
~~deliberation.”).~~
~~246 Pub. L. No. 114-185, 130 Stat. 538 (June 30, 2016).~~
~~247 Id. § 2(2), 130 Stat. at 540 (codified at 5 U.S.C. § 552(b)(5)). In March 2020, the Supreme Court granted a petition~~
~~for a writ of certiorari in Fish & Wildlife Service v. Sierra Club, No. 19-547. See Order List, Mar. 2, 2020, at 3,~~
~~https://www.supremecourt.gov/orders/courtorders/030220zor_l5gm.pdf. The petition asks the Court to determine~~
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Presidential Communications Privilege. The presidential communications privilege is also a
~~component of executive privilege and has been recognized as applicable in the Exemption 5~~
~~context.248~~citation omitted). 249 592 U.S. 261 (2021). 250 Id. at 268. Congressional Research Service 30 The Freedom of Information Act (FOIA): A Legal Overview agency’s chosen course is a matter of the legal consequences that flow from the adoption of the document.251 The privilege, however, has limits. It does not protect materials that an “agency chooses expressly to adopt or incorporate by reference,” nor does it generally cover factual material.252 Notably, the FOIA Improvement Act of 2016253 amended Exemption 5 to exclude application of the privilege to documents that were “created 25 years or more before the date on which [they] were requested.”254 Presidential Communications Privilege Exemption 5 also applies to materials that are subject to the presidential communications privilege.255 The Supreme Court has held that the privilege protects from mandatory disclosure The Supreme Court has held that the privilege protects from mandatory disclosure
“communications in performance of [a President’s] responsibilities, of his office, and made in the “communications in performance of [a President’s] responsibilities, of his office, and made in the
process of shaping policies and making decisions.”process of shaping policies and making decisions.”~~249~~256 The D.C. Circuit has held that the privilege The D.C. Circuit has held that the privilege
also protects “communications authored or received in response to .also protects “communications authored or received in response to . . .. solicitation[s] by” senior . solicitation[s] by” senior
White House advisers “in the course of gathering information and preparing recommendations on White House advisers “in the course of gathering information and preparing recommendations on
official matters for presentation to the President,”official matters for presentation to the President,”~~250~~257 as well as records “authored or solicited and as well as records “authored or solicited and
received by .received by . . .. members of an immediate White House adviser’s staff who have broad and . members of an immediate White House adviser’s staff who have broad and
significant responsibility for investigating and formulating the advice to be given to the President significant responsibility for investigating and formulating the advice to be given to the President
on a particular matter.”on a particular matter.”~~251~~258 Unlike the deliberative process privilege, the presidential Unlike the deliberative process privilege, the presidential
communications privilege “applies to documents in their entirety, and covers final and post-communications privilege “applies to documents in their entirety, and covers final and post-
decisional materials as well as pre-deliberative ones.”decisional materials as well as pre-deliberative ones.”~~252~~259 251 Id. at 271. 252 Sears, 421 U.S. at 161 (“[I]f an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5.”); see Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977) (acknowledging that “[m]any exemption five disputes may be able to be decided by application of the simple test that factual material must be disclosed but advisory material, containing opinions and recommendations, may be withheld”). But see, e.g., Wolfe v. HHS, 839 F.2d 768, 774 (D.C. Cir. 1988) (writing that, “[i]n some circumstances, even material that could be characterized as ‘factual’ would so expose the deliberative process that it must be covered by the privilege”); City of Va. Beach v. U.S. Dep’t of Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993) (internal citation omitted) (“[P]urely factual material does not fall within the exemption unless it is inextricably intertwined with policymaking processes such that revelation of the factual material would simultaneously expose protected deliberation.”). 253 Pub. L. No. 114-185, 130 Stat. 538 (2016). 254 Id. § 2(2), 130 Stat. at 540 (codified at 5 U.S.C. § 552(b)(5)). 255 See Judicial Watch, Inc. v. DOJ, 365 F.3d 1108, 1113 (D.C. Cir. 2004). 256 Nixon v. Adm’r of Gen. Servs. 433 U.S. 425, 449 (1977) (alteration in original) (internal citations omitted). 257 In re Sealed Case (Espy), 121 F.3d 729, 757 (D.C. Cir. 1997). 258 Id. 259 Judicial Watch, 365 F.3d at 1113–14 (
Attorney-Client Privilege. Exemption 5 also incorporates the attorney-client privilege.253 The
~~attorney-client privilege generally protects “communication[s] made between privileged persons~~
~~in confidence for the purpose of obtaining or providing legal assistance for the client.”254~~

~~whether the deliberative process privilege, in the context of FOIA, “protects against compelled disclosure a federal~~
~~agency’s draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the~~
~~Endangered Species Act [(ESA)] of 1973 . . . that concerned a proposed agency action that was later modified in the~~
~~consultation process.” Petition for a Writ of Certiorari at i, Sierra Club, Oct. 25, 2019. The U.S. Court of Appeals for~~
~~the Ninth Circuit had ordered the Fish and Wildlife Service and National Marine Fisheries Service (Services) to~~
~~disclose certain materials, including draft “biological opinions,” see 50 C.F.R. § 402.14(h), the Services had created~~
~~during their review of a draft EPA regulation pursuant to Section 7 of the ESA. See Sierra Club v. Fish & Wildlife~~
~~Serv., 925 F.3d 1000, 1018 (9th Cir. 2019); 16 U.S.C. § 1536. The Services had disclosed portions of those draft~~
~~biological opinions to EPA, but neither agency had disclosed either opinion in full. Sierra Club, 925 F.3d at 1008. EPA~~
~~later modified its draft regulation, and the Services subsequently issued a joint final biological opinion. Id. The~~
~~Supreme Court’s decision in Sierra Club could impact the scope of Exemption 5, particularly as the deliberative~~
~~process privilege is applied to putative draft or interim documents generated during inter-agency consultations of the~~
~~kind at issue in the case.~~
~~Oral argument in Sierra Club is scheduled for Monday, November 2, 2020. See SUPREME COURT OF THE UNITED~~
~~STATES, October Term 2020, For the Session Beginning November 2, 2020 (Aug. 19, 2020),~~
~~https://www.supremecourt.gov/oral_arguments/argument_calendars/MonthlyArgumentCalNovember2020.pdf.~~
~~248 See Judicial Watch, Inc. v. DOJ, 365 F.3d 1108, 1113 (D.C. Cir. 2004).~~
~~249 Nixon v. Adm’r of Gen. Servs. 433 U.S. 425, 449 (1977) (alteration in original) (internal quotation marks and~~
~~citations omitted).~~
~~250 In re Sealed Case (Espy), 121 F.3d 729, 757 (D.C. Cir. 1997).~~
251 Id.
~~252 Judicial Watch, 365 F.3d~~ ~~at 1113-14 (internal quotation marks omitted) (~~quoting quoting Espy, 121 F.3d at 745). At least , 121 F.3d at 745). At least
one court has explicitly stated that the presidential communications privilege can be waived in regard to information an one court has explicitly stated that the presidential communications privilege can be waived in regard to information an
agency expressly adopted or incorporated by reference into a final opinion. agency expressly adopted or incorporated by reference into a final opinion. See Samahon v. DOJ, No. 13-6462, 2015 Samahon v. DOJ, No. 13-6462, 2015
~~U.S. Dist. LEXIS 23813~~WL 857358, at *, at *3913 (E.D. Pa. Feb. 27, 2015) (“[T]he deliberative process, attorney-client, and presidential (E.D. Pa. Feb. 27, 2015) (“[T]he deliberative process, attorney-client, and presidential
communications privileges can be waived ‘if the agency has chosen “expressly to adopt or incorporate by reference [a] communications privileges can be waived ‘if the agency has chosen “expressly to adopt or incorporate by reference [a]
~~. .~~ ... memorandum previously covered by Exemption 5 in what would otherwise be a final opinion.”’” (quoting Nat’l . memorandum previously covered by Exemption 5 in what would otherwise be a final opinion.”’” (quoting Nat’l
Council of La Raza v. DOJ, 411 F.3d 350, 356 (2d Cir. 2005) (ellipses and second alteration in original)); Council of La Raza v. DOJ, 411 F.3d 350, 356 (2d Cir. 2005) (ellipses and second alteration in original)); but see
Advocates for the WestAdvocates for the West~~. .~~ ... [B]ecause the .. [B]ecause the . . .. the presidential communications privilege applies, there .. the presidential communications privilege applies, there . . .. is no need to . is no need to
~~go any further.”).~~
~~253 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975) (writing that “[t]he Senate Report [underlying FOIA]~~
~~states that Exemption 5 ‘would include . . . documents which would come within the attorney-client privilege if applied~~
~~to private parties’” (quoting S. REP. NO. 813, at 2 (1965))).~~
254 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 68 (numerical formatting omitted). The Restatement
(Third) of the Law Governing Lawyers defines “privileged persons” as the client or prospective client; the client’s
~~attorney; “agents of [the client or attorney] who facilitate communications between them”; and “agents of the lawyer~~
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go any further.”). Congressional Research Service 31 link to page 22 The Freedom of Information Act (FOIA): A Legal Overview Attorney-Client Privilege Exemption 5 also incorporates the attorney-client privilege,260 which generally protects “communication[s] made between privileged persons[] in confidence[] for the purpose of obtaining or providing legal assistance for the client.”261 Exemption 5 incorporates the privilege as it exists for government attorneys, where, as explained Exemption 5 incorporates the privilege as it exists for government attorneys, where, as explained
by the D.C. Circuit, “the ‘client’ may be the agency and the attorney may be an agency by the D.C. Circuit, “the ‘client’ may be the agency and the attorney may be an agency
lawyer.”lawyer.”~~255~~262 The privilege does not cover information “adopted as, or incorporated by reference The privilege does not cover information “adopted as, or incorporated by reference
into, an agency’s policy.”into, an agency’s policy.”~~256~~263
Attorney Work-Product Privilege. In the context of Exemption 5, the attorney work-product In the context of Exemption 5, the attorney work-product
privilege embraces “materials privilege embraces “materials ‘prepared in anticipation of litigationprepared in anticipation of litigation ... ’” by an agency.” by an agency.~~257~~264 The The
privilege serves to protect and maintain an effective adversarial litigation system.privilege serves to protect and maintain an effective adversarial litigation system.~~258~~265 While While
records must have been prepared in anticipation of litigation to be protected by the exemption, in records must have been prepared in anticipation of litigation to be protected by the exemption, in
Federal Trade Commission v. Grolier, the Supreme Court held that materials may be withheld , the Supreme Court held that materials may be withheld
under Exemption 5 even if the litigation for which the materials were prepared has since ended.under Exemption 5 even if the litigation for which the materials were prepared has since ended.~~259~~
266 The Court’s decision was based on its interpretation of Rule 26 of the Federal Rules of Civil The Court’s decision was based on its interpretation of Rule 26 of the Federal Rules of Civil
Procedure, which is the source of the work-product doctrine for pretrial discovery in federal civil Procedure, which is the source of the work-product doctrine for pretrial discovery in federal civil
litigation.litigation.~~260~~267 It was also based on the fact that, generally, federal judicial decisions regarding It was also based on the fact that, generally, federal judicial decisions regarding
“Rule 26Rule 26[] “had determined that work-product materials retained their immunity from discovery had determined that work-product materials retained their immunity from discovery
after termination of the litigation for which the documents were prepared, without regard to after termination of the litigation for which the documents were prepared, without regard to
whether other related litigation is pending or is contemplated.”whether other related litigation is pending or is contemplated.”~~261~~268 The court explained that, The court explained that,
because “Exemption 5 incorporates the privileges which the Government enjoys under the because “Exemption 5 incorporates the privileges which the Government enjoys under the
relevant relevant ~~statutory~~statutes and case law in the pretrial discovery 260 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975) (writing that “[t]he Senate Report [accompanying FOIA] states that Exemption 5 ‘would include ... documents which would come within the attorney-client privilege if applied to private parties’” (quoting S. REP. NO. 813, at 2 (1965)). 261 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 68 (numerical formatting omitted). The Restatement (Third) of the Law Governing Lawyers defines “privileged persons” as the client or prospective client; the client’s attorney; “agents of [the client or attorney] who facilitate communications between them”; and “agents of the lawyer who facilitate the representation.” Id. § 70. 262 ~~and case law in the pretrial discovery context,” materials protected by the~~
~~work-product privilege were not “‘routinely’ available in subsequent litigation.”262~~
Other Privileges. The Supreme Court and lower courts have determined that other privileges are
~~embraced by Exemption 5. For example, in United States v. Weber Aircraft Corp., the Supreme~~
~~Court held that the privilege protecting “[c]onfidential statements made to air crash safety~~
~~inspectors,” known as the Machin privilege,263 was incorporated by the exemption.264 The Court~~
~~has also held that Exemption 5 applies to “confidential commercial information, at least to the~~

~~who facilitate the representation.” Id. § 70.~~
~~255~~ Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997); Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997); see also Confidentiality of the Attorney General’s Confidentiality of the Attorney General’s
Communications in Counseling the President, 6 Op. O.L.C. 481, 495 (1982) (“Although the attorney-client privilege Communications in Counseling the President, 6 Op. O.L.C. 481, 495 (1982) (“Although the attorney-client privilege
traditionally has been recognized in the context of private attorney-client relationships, the privilege also functions to traditionally has been recognized in the context of private attorney-client relationships, the privilege also functions to
protect communications between government attorneys and client agencies or departments, as evidenced by its protect communications between government attorneys and client agencies or departments, as evidenced by its
inclusion in the FOIA, much as it operates to protect attorney-client communications in the private sector.”). inclusion in the FOIA, much as it operates to protect attorney-client communications in the private sector.”).
~~256~~263 La Raza, 411 F.3d at 360. , 411 F.3d at 360.
~~257~~264 Tax Analysts, 117 F.3d at 620, 117 F.3d at 620 ~~(internal quotation marks omitted)~~ (quoting FED. R. CIV. P. 26(b)(3)); PIERCE, JR., (quoting FED. R. CIV. P. 26(b)(3)); PIERCE, JR., ET
~~AL.,~~ supra no note ~~154~~150, at 389. Courts have held that records produced in anticipation of administrative litigation are at 389. Courts have held that records produced in anticipation of administrative litigation are
embraced by the privilege. embraced by the privilege. See Schoenman v. FBI, 573 F. Supp. 2d 119, 143 (D.D.C. 2008) (“[C]ourts have found that Schoenman v. FBI, 573 F. Supp. 2d 119, 143 (D.D.C. 2008) (“[C]ourts have found that
the attorney work-product privilege extends to documents prepared in anticipation of administrative litigation, partially the attorney work-product privilege extends to documents prepared in anticipation of administrative litigation, partially
because ‘administrative litigation certainly can beget court litigation and may in many circumstances be expected to do because ‘administrative litigation certainly can beget court litigation and may in many circumstances be expected to do
so.’” (quoting Exxon Corp. v. Dep’t of Energy, 585 F. Supp. 690, 700 (D.D.C. 1983))so.’” (quoting Exxon Corp. v. Dep’t of Energy, 585 F. Supp. 690, 700 (D.D.C. 1983))).
~~258~~. 265 See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980) (“The purpose of the privilege Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980) (“The purpose of the privilege
.. . .. is .. is . . .. to protect the adversary trial process itself. It is believed that the integrity of our system would suffer if . to protect the adversary trial process itself. It is believed that the integrity of our system would suffer if
adversaries were entitled to probe each other’s thoughts and plans concerning the case.”); Jeff A. Anderson et al., adversaries were entitled to probe each other’s thoughts and plans concerning the case.”); Jeff A. Anderson et al., The
Work Product Doctrine, 68 CORNELL L. REV. 760, 787 (1983) (stating that “the doctrine’s central purpose” is the , 68 CORNELL L. REV. 760, 787 (1983) (stating that “the doctrine’s central purpose” is the
preservation of an “effective adversary behavior for the good of the system”). preservation of an “effective adversary behavior for the good of the system”).
~~259~~266 462 U.S. 19, 26 462 U.S. 19, 26-–28 (1983). 28 (1983).
~~260~~267 See FED. R. CIV. P. 26(b)(3). FED. R. CIV. P. 26(b)(3).
~~261~~268 Grolier, 462 U.S. at 25, 462 U.S. at 25-–26. Congressional Research Service 32 link to page 29 link to page 29 link to page 40 link to page 40 link to page 63 link to page 63 The Freedom of Information Act (FOIA): A Legal Overview context,” materials protected by the work-product privilege were not “‘routinely’ available in subsequent litigation.”269 Other Privileges The Supreme Court and lower courts have determined that other privileges are embraced by Exemption 5. For example, in ~~26.~~
~~262 Id. at 26-27 (internal quotation marks omitted) (quoting Renegotiation Bd. v. Grunman Aircraft Eng’g Corp., 421~~
~~U.S. 168, 184 (1975)).~~
~~263 The privilege is named after the D.C. Circuit’s decision in Machin v. Zuckert, 316 F.2d 336 (D.C. Cir. 1963).~~
~~264~~ United States v. Weber Aircraft Corp.United States v. Weber Aircraft Corp., the Supreme Court held that the privilege protecting “[c]onfidential statements made to air crash safety inspectors,” known as the Machin privilege,270 was incorporated by the exemption.271 The Court has also held that Exemption 5 applies to “confidential commercial information, at least to the ~~, 465 U.S. 792, 796, 799 (1984).~~
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extent that this information is generated by the Government itself in the process leading up to extent that this information is generated by the Government itself in the process leading up to
awarding a contract.”awarding a contract.”~~265~~272
Exemption 6: Personnel, Medical, and Similar Files
Exemption 6 exempts from disclosure “personnel and medical files and similar files the Exemption 6 exempts from disclosure “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”~~266~~273
Federal agencies maintain a large amount of information about individuals, such as health and Federal agencies maintain a large amount of information about individuals, such as health and
medical records,medical records,~~267~~274 criminal records, criminal records,~~268~~275 home addresses, home addresses,~~269 social security~~276 Social Security numbers, numbers,~~270~~277 and a and a
variety of other types of personal information.variety of other types of personal information.~~271~~278 Exemption 6 helps shield “individuals from the Exemption 6 helps shield “individuals from the
injury and embarrassment” that may stem from the disclosure of personal information maintained injury and embarrassment” that may stem from the disclosure of personal information maintained
~~by the government.272 The exemption applies to citizens and noncitizens alike,273 but courts have~~
~~not extended its protections to corporations.274~~
~~As an initial manner, an agency may only withhold information for impermissibly invading an~~
~~individual’s privacy if it is a personnel, medical, or “similar” file.275 FOIA does not contain a~~

~~265~~ 269 Id. at 26–27 (quoting Renegotiation Bd. v. Grunman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975)). 270 The privilege is named after the D.C. Circuit’s decision in Machin v. Zuckert, 316 F.2d 336 (D.C. Cir. 1963). 271 United States v. Weber Aircraft Corp., 465 U.S. 792, 796, 799 (1984). 272 Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 360 (1979). Confidential commercial Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 360 (1979). Confidential commercial
information submitted to the federal government by individuals or entities from information submitted to the federal government by individuals or entities from outside the federal government, the federal government,
however, is the subject of Exemption 4. however, is the subject of Exemption 4. See ~~supra~~ “supr a Exemption 4: Trade Secrets and Commercial or Financial
Information.”
~~266~~ 273 5 U.S.C. § 552(b)(6). Exemption 7(C) also exempts certain information in order to protect individuals from 5 U.S.C. § 552(b)(6). Exemption 7(C) also exempts certain information in order to protect individuals from
unwarranted intrusions into their privacy. unwarranted intrusions into their privacy. See id. § 552(b)(7)(C). As explained . § 552(b)(7)(C). As explained infra,, “Exemption 7: Law Enforcement
Records or Information,” Exemption 7’s privacy protections are broader than Exemption 6’s, although it is limited to Exemption 7’s privacy protections are broader than Exemption 6’s, although it is limited to
“records or information compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7). “records or information compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7).
Some records covered by Exemptions 6 or 7(C) may also fall under the ambit of the Privacy Act, 5 U.S.C. § 552a. The Some records covered by Exemptions 6 or 7(C) may also fall under the ambit of the Privacy Act, 5 U.S.C. § 552a. The
interplay between FOIA and the Privacy Act is discussed below. interplay between FOIA and the Privacy Act is discussed below. See infra “Related Open Government and Information
Laws: FACA, the Sunshine Act, and the Privacy Act.”
~~267~~274 See, e.g., Joseph W. Diemert, Jr. & Assoc. Co. v. FAA, 218 F. App’x 479 (6th Cir. 2007) (workers compensation , Joseph W. Diemert, Jr. & Assoc. Co. v. FAA, 218 F. App’x 479 (6th Cir. 2007) (workers compensation
records possessed by the Federal Aviation Administration).records possessed by the Federal Aviation Administration).
~~268~~275 See, e.g., DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (FBI “rap sheet” on private DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (FBI “rap sheet” on private
individual). individual).
~~269~~276 See, e.g.,, DOD v. Fed. Labor Relations Auth., 510 U.S. 487 (1994) (home addresses of certain federal employees). DOD v. Fed. Labor Relations Auth., 510 U.S. 487 (1994) (home addresses of certain federal employees).
~~270~~277 See, e.g., Coleman v. Lappin, 680 F. Supp. 2d 192 (D.D.C. 2010) (social security numbers of Bureau of Prisons , Coleman v. Lappin, 680 F. Supp. 2d 192 (D.D.C. 2010) (social security numbers of Bureau of Prisons
employees). employees).
~~271~~278 See S. REP. NO. 813, at 9 (1965) (stating that “[s]uch agencies as the Veterans’ Administration, Department of S. REP. NO. 813, at 9 (1965) (stating that “[s]uch agencies as the Veterans’ Administration, Department of
Health, Education, and Welfare, Selective Service, etc., have great quantifies of files” and that “[t]here is a consensus Health, Education, and Welfare, Selective Service, etc., have great quantifies of files” and that “[t]here is a consensus
that these files should not be opened to the public”); that these files should not be opened to the public”); accord H.R. REP. NO. 1497, at 11 (1966). H.R. REP. NO. 1497, at 11 (1966).
~~272 U.S. Dep’t of State v. Wash. Post. Co., 456 U.S. 595, 599 (1982).~~
~~273~~ Congressional Research Service 33 The Freedom of Information Act (FOIA): A Legal Overview by the government.279 The exemption applies to citizens and noncitizens alike,280 but courts have not extended its protections to corporations.281 As an initial matter, an agency may withhold information for impermissibly invading an individual’s privacy only if it is a personnel, medical, or “similar” file.282 FOIA does not include definitions of these terms, but as some courts have explained, personnel and medical files “generally contain a variety of information about a person, such as place of birth, date of birth, date of marriage, employment history, and comparable data.”283 The Supreme Court has held that the term “similar files” broadly embraces any “information which applies to a particular individual.”284 Courts have identified a variety of information types that qualify as “files” under Exemption 6, including, for example, the names and addresses of federal annuitants;285 individuals’ citizenship information;286 information associated with asylum requests;287 and “information regarding marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, [and] reputation.”288 Information is not exempt from disclosure under FOIA, however, merely because it qualifies as a personnel, medical, or similar file. Such files must still be disclosed upon request unless release “would constitute a clearly unwarranted invasion of personal privacy.”289 To determine whether 279 U.S. Dep’t of State v. Wash. Post. Co., 456 U.S. 595, 599 (1982). 280 See, e.g., U.S. Dep’t of State v. Ray, 502 U.S. 164, 179 (1991) (holding that disclosure of unredacted documents , U.S. Dep’t of State v. Ray, 502 U.S. 164, 179 (1991) (holding that disclosure of unredacted documents
containing identifying information of Haitian citizens would violate Exemption 6). containing identifying information of Haitian citizens would violate Exemption 6).
~~274~~281 Nat’l Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673, 685 n.44 (D.C. Cir. 1976) (noting that “[t]he sixth Nat’l Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673, 685 n.44 (D.C. Cir. 1976) (noting that “[t]he sixth
exemption has not been extended to protect the privacy interests of businesses or corporations”). In exemption has not been extended to protect the privacy interests of businesses or corporations”). In FCC v. AT&T, 562 , 562
U.S. 397 (2011), the Supreme Court held that Exemption 7(C)’s protection of “personal privacy” did not apply to U.S. 397 (2011), the Supreme Court held that Exemption 7(C)’s protection of “personal privacy” did not apply to
corporations. corporations. Id. at 409 at 409-–10. In support of this conclusion, the Court discussed the inclusion of that term in Exemption 6 10. In support of this conclusion, the Court discussed the inclusion of that term in Exemption 6
and explained that while “the question whether Exemption 6 is limited to individuals has not come to us directly, we and explained that while “the question whether Exemption 6 is limited to individuals has not come to us directly, we
have regularly referred to that exemption as involving an ‘individual’s right of privacy.’” have regularly referred to that exemption as involving an ‘individual’s right of privacy.’” Id. at 407at 407-–08 (quoting 08 (quoting Ray, ,
502 U.S. at 175). That said, the D.C. Circuit has held that “Exemption 6 applies to financial information in business 502 U.S. at 175). That said, the D.C. Circuit has held that “Exemption 6 applies to financial information in business
records when the business is individually owned or closely held, and ‘the records would necessarily reveal at least a records when the business is individually owned or closely held, and ‘the records would necessarily reveal at least a
portion of the owner’s personal finances.’” Multi AG Media LLC v. USDA, 515 F.3d 1224, 1228portion of the owner’s personal finances.’” Multi AG Media LLC v. USDA, 515 F.3d 1224, 1228-–29 (D.C. Cir. 2008) 29 (D.C. Cir. 2008)
(quoting (quoting Kleppe, 547 F.2d at 685). , 547 F.2d at 685).
~~275~~282 5 U.S.C. § 552(b)(6); 5 U.S.C. § 552(b)(6); see DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 6, DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 6,
at 4 (at 4 (~~Oct. 4, 2019~~Aug. 19, 2022) [hereinafter DOJ GUIDE, EXEMPTION 6]) [hereinafter DOJ GUIDE, EXEMPTION 6]~~, https://www.justice.gov/oip/page/file/1207336/download.~~
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~~definition of these terms, but, as some courts have explained, personnel and medical files~~
~~“generally contain a variety of information about a person, such as place of birth, date of birth,~~
~~date of marriage, employment history, and comparable data.”276 And the Supreme Court has held~~
~~that the term “similar files” broadly embraces any “information which applies to a particular~~
~~individual.”277 Courts have identified a variety of information types that qualify as “files” under~~
~~Exemption 6, including, for example, the names and addresses of federal annuitants;278~~
~~individuals’ citizenship information;279 information associated with asylum requests;280 and~~
~~“information regarding marital status, legitimacy of children, identity of fathers of children,~~
~~medical condition, welfare payments, alcoholic consumption, family fights, [and] reputation.”281~~
~~Information is not exempt from disclosure under FOIA, however, merely because it qualifies as a~~
~~personnel, medical, or similar file. Such files must still be disclosed upon request unless release~~
~~“would constitute a clearly unwarranted invasion of personal privacy.”282 To determine whether~~
~~disclosure would rise to such a level, agencies and courts balance the privacy interest283~~
~~associated with the requested information against “the public interest in disclosure.”284 Courts~~

~~276~~ https://www.justice.gov/media/1027586/dl?inline. 283 Wood v. FBI, 432 F.3d 78, 86 (2d Cir. 2005 Wood v. FBI, 432 F.3d 78, 86 (2d Cir. 2005~~) (internal quotation marks omitted~~) (quoting ) (quoting Wash. Post. Co., 456 U.S. , 456 U.S.
at 600); at 600); see also Dep’t of Air Force v. Rose, 425 U.S. 352, 377 (1976) (explaining that the requested case summaries of Dep’t of Air Force v. Rose, 425 U.S. 352, 377 (1976) (explaining that the requested case summaries of
Air Force Academy honor and ethics code hearings did “not contain the vast amounts of personal data which constitute Air Force Academy honor and ethics code hearings did “not contain the vast amounts of personal data which constitute
the kind of profile of an individual ordinarily to be found in his personnel file: showing, for example, where he was the kind of profile of an individual ordinarily to be found in his personnel file: showing, for example, where he was
born, the names of his parents, where he has lived from time to time, his high school or other school records, results of born, the names of his parents, where he has lived from time to time, his high school or other school records, results of
examinations, evaluations of his work performance,” and that “access to these files is not drastically limited, as is examinations, evaluations of his work performance,” and that “access to these files is not drastically limited, as is
customarily true of personnel files, only to supervisory personnel directly involved with the individual (apart from the customarily true of personnel files, only to supervisory personnel directly involved with the individual (apart from the
personnel department itself), frequently thus excluding even the individual himself”) (internal personnel department itself), frequently thus excluding even the individual himself”) (internal ~~quotation marks and~~
citation omitted). citation omitted).
~~277~~284 Wash. Post. Co., 456 U.S. at 600, 602; , 456 U.S. at 600, 602; see also id. (stating that Congress “‘intended [Exemption 6] to cover detailed (stating that Congress “‘intended [Exemption 6] to cover detailed
Government records on an individual which can be identified as applying to that individual’” (quoting H.R. REP. NO. Government records on an individual which can be identified as applying to that individual’” (quoting H.R. REP. NO.
1497, at 11 (1966))1497, at 11 (1966))). .
~~278~~285 Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989).
~~279~~286 Wash. Post. Co., 456 U.S. at 602. , 456 U.S. at 602.
~~280~~287 See, e.g., Phillips v. ICE, 385 F. Supp. 2d 296, 304 (S.D.N.Y. 2005); , Phillips v. ICE, 385 F. Supp. 2d 296, 304 (S.D.N.Y. 2005); see also Cook v. Nat’l Archives & Records Cook v. Nat’l Archives & Records
Admin., 758 F.3d 168, 174Admin., 758 F.3d 168, 174-–75 (2d Cir. 2014) (noting that “Passport Office records revealing citizenship status; an 75 (2d Cir. 2014) (noting that “Passport Office records revealing citizenship status; an
investigation report revealing alleged misconduct; letters to Guantanamo Bay detainees revealing the names and investigation report revealing alleged misconduct; letters to Guantanamo Bay detainees revealing the names and
addresses of family members; and records of interview of deported aliens revealing their identities” are all “types of addresses of family members; and records of interview of deported aliens revealing their identities” are all “types of
records [that] have been deemed ‘similar files’ for purposes of Exemption 6”) (footnotes omitted). records [that] have been deemed ‘similar files’ for purposes of Exemption 6”) (footnotes omitted).
~~281~~288 Rural Hous. All. v. USDA, 498 F.2d 73, 77 (D.C. Cir. 1974). Rural Hous. All. v. USDA, 498 F.2d 73, 77 (D.C. Cir. 1974).
~~282~~289 5 U.S.C. § 552(b)(6). The Supreme Court has explained that “the purposes for which [a] request for information is 5 U.S.C. § 552(b)(6). The Supreme Court has explained that “the purposes for which [a] request for information is
(continued...) Congressional Research Service 34 link to page 40 link to page 40 link to page 15 link to page 38 The Freedom of Information Act (FOIA): A Legal Overview disclosure would rise to such a level, agencies and courts balance the privacy interest290 associated with the requested information against “the public interest in disclosure.”291 Courts typically require that an agency assert a privacy interest that is “substantial” (or more than “de minimis”) to justify withholding the information.292 The Supreme Court has held that “the only relevant public interest in disclosure ... is the extent to which disclosure would serve the core purpose of FOIA, which is contributing significantly to public understanding of the operations or activities of the government.”293 If the asserted privacy interest outweighs the public interest in disclosure, the information is exempt.294 made” do not govern “whether an invasion of privacy is warranted.” DOD v. Fed. Labor Relations Auth., 510 U.S. 487, made” do not govern “whether an invasion of privacy is warranted.” DOD v. Fed. Labor Relations Auth., 510 U.S. 487,
496 (1994) (emphasis 496 (1994) (emphasis ~~and internal quotation marks~~ omitted) (quoting omitted) (quoting Reporters Comm., 489 U.S. at 771). , 489 U.S. at 771).
~~283~~290 According to the Supreme Court, “[t]he privacy interest[s] protected by Exemption 6 encompass the individual’s According to the Supreme Court, “[t]he privacy interest[s] protected by Exemption 6 encompass the individual’s
control of information concerning his or her person.” control of information concerning his or her person.” Fed. Labor Relations Auth., 510 U.S. at 500 (, 510 U.S. at 500 (~~internal quotation~~
~~marks, citation,~~citation and alteration omitted). In and alteration omitted). In National Archives and Records Administration v. Favish, 541 U.S. 157 , 541 U.S. 157
(2004), in which the Court considered whether death-scene photographs of a former deputy counsel to the President—(2004), in which the Court considered whether death-scene photographs of a former deputy counsel to the President—
Vincent Foster, Jr.—were exempt under Exemption 7(C), 5 U.S.C. § 552(b)(7), the Court held that FOIA’s privacy Vincent Foster, Jr.—were exempt under Exemption 7(C), 5 U.S.C. § 552(b)(7), the Court held that FOIA’s privacy
protections extended to the privacy interests ofprotections extended to the privacy interests of the close relatives of a record’s subjectthe close relatives of a record’s subject,. 541 U.S. at 161, 168, 171. 541 U.S. at 161, 168, 171.
Exemption 7(C) contains similar invasion-of-privacy language as Exemption 6. Exemption 7(C) contains similar invasion-of-privacy language as Exemption 6. See infra “Exemption 7: Law
Enforcement Records or Information.” See also Clark, Clark, supra no note 9492, at 305 (explaining that Exemption 6 was at 305 (explaining that Exemption 6 was
designed to exempt “all designed to exempt “all personnel and medical files, and all private or personal information contained in other files,” personnel and medical files, and all private or personal information contained in other files,”
where disclosure “would amount to a clearly unwarranted invasion of the privacy of any person, including members of where disclosure “would amount to a clearly unwarranted invasion of the privacy of any person, including members of
the family of the person to whom the information pertains”). the family of the person to whom the information pertains”).
~~284~~291 Fed. Labor Relations Auth., 510 U.S. at 495 (, 510 U.S. at 495 (~~internal quotation marks omitted) (~~quoting DOJ v. Reporters Comm. quoting DOJ v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 776 (1989)); for Freedom of the Press, 489 U.S. 749, 776 (1989)); see Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976). FOIA’s Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976). FOIA’s
legislative history indicates that Congress understood Exemption 6 to require a balancing of private and public legislative history indicates that Congress understood Exemption 6 to require a balancing of private and public
interests. interests. See H.R. REP. NO. 1497, at 11 (1966) (writing that “[t]he limitation of a ‘clearly unwarranted invasion of H.R. REP. NO. 1497, at 11 (1966) (writing that “[t]he limitation of a ‘clearly unwarranted invasion of
personal privacy’ provides a proper balance personal privacy’ provides a proper balance between the protection of an individual’s right of privacy and the ~~between the protection of an individual’s right of privacy and the~~
~~Congressional Research Service~~
35

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~~typically require that an agency assert a privacy interest that is “substantial” (or more than “~~de
~~minimis”) to justify withholding the information.285 And the Supreme Court has held that “the~~
~~only relevant public interest in disclosure . . . is the extent to which disclosure would serve the~~
~~core purpose of FOIA, which is contributing significantly to public understanding of the~~
~~operations or activities of the government.”286 If the asserted privacy interest outweighs the public~~
~~interest in disclosure, the information is exempt.287~~
~~Exemption 7: Law Enforcement Records or Information~~
~~FOIA’s seventh exemption applies to “records or information compiled for law enforcement~~
~~purposes,” but only where disclosure of such agency records “would” or “could reasonably be~~
~~expected to” result in certain harms specified by the exemption (and discussed below).288 As the~~

preservation of the public’s right to Government information by excluding those kinds of files the disclosure of which preservation of the public’s right to Government information by excluding those kinds of files the disclosure of which
might harm the individual”); S. REP. NO. 813, at 9 (1965) (explaining that “[t]he phrase ‘clearly unwarranted invasion might harm the individual”); S. REP. NO. 813, at 9 (1965) (explaining that “[t]he phrase ‘clearly unwarranted invasion
of personal privacy’ enunciates a policy that will involve a balancing of interests between the protection of an of personal privacy’ enunciates a policy that will involve a balancing of interests between the protection of an
individual’s private affairs from unnecessary public scrutiny, and the preservation of the public’s right to governmental individual’s private affairs from unnecessary public scrutiny, and the preservation of the public’s right to governmental
information”). information”).
~~285~~292 See, e.g., Am. Farm Bureau Fed’n v. EPA, 836 F.3d 963, 970 (8th Cir. 2016); Cook v. Nat’l Archives & Records , Am. Farm Bureau Fed’n v. EPA, 836 F.3d 963, 970 (8th Cir. 2016); Cook v. Nat’l Archives & Records
Admin., 758 F.3d 168, 175Admin., 758 F.3d 168, 175-–76 (2d Cir. 2014); Multi AG Media LLC v. USDA, 515 F.3d 1224, 122976 (2d Cir. 2014); Multi AG Media LLC v. USDA, 515 F.3d 1224, 1229-–30 (D.C. Cir. 30 (D.C. Cir.
2008); 2008); see DOJ GUIDE, EXEMPTION 6, DOJ GUIDE, EXEMPTION 6, supra no note ~~275~~282, at 9 at 9-–10. The necessary privacy interest for the Exemption 6 10. The necessary privacy interest for the Exemption 6
balancing analysis has also been described as one that is “significant,” balancing analysis has also been described as one that is “significant,” see Multi AG Media, 515 F.3d at 1229 (citation , 515 F.3d at 1229 (citation
~~and quotation marks~~ omitted), or “nontrivial,” omitted), or “nontrivial,” see Cameranesi v. DOD, 856 F.3d 626, 637 (9th Cir. 2017). Cameranesi v. DOD, 856 F.3d 626, 637 (9th Cir. 2017).
~~286~~ 293 Fed. Labor Relations Auth., 510 U.S. at 495 (emphasis , 510 U.S. at 495 (emphasis ~~and internal quotation marks~~ omitted) (quoting omitted) (quoting Reporters
Comm, 489 U.S. at 777); , 489 U.S. at 777); see also id. at 497 (declaring that “the only relevant public interest in the FOIA balancing at 497 (declaring that “the only relevant public interest in the FOIA balancing
analysis” is “the extent to which disclosure of the information sought would ‘shed light on an agency’s performance of analysis” is “the extent to which disclosure of the information sought would ‘shed light on an agency’s performance of
its statutory duties’ or otherwise let citizens known ‘what their government is up to’” (quoting its statutory duties’ or otherwise let citizens known ‘what their government is up to’” (quoting Reporters Comm, 489 , 489
U.S. at 773)); Bibles v. Or. Natural Desert Ass’n, 519 U.S. 355, 355U.S. at 773)); Bibles v. Or. Natural Desert Ass’n, 519 U.S. 355, 355-–56 (1997) (per curiam) (same); Dep’t of Air Force 56 (1997) (per curiam) (same); Dep’t of Air Force
v. Rose, 425 U.S. 352, 372 (1976)v. Rose, 425 U.S. 352, 372 (1976) (explaining that “Congress sought to construct an exemption [in Exemption 6] that (explaining that “Congress sought to construct an exemption [in Exemption 6] that
would require a balancing of the individual’s right of privacy against the preservation of the basic purpose of [FOIA] would require a balancing of the individual’s right of privacy against the preservation of the basic purpose of [FOIA]
‘to open agency action to the light of public scrutiny’” (quoting Rose v. Dep’t of Air Force, 495 F.2d 261, 263 (2d Cir. ‘to open agency action to the light of public scrutiny’” (quoting Rose v. Dep’t of Air Force, 495 F.2d 261, 263 (2d Cir.
1974), 1974), aff’d, 425 U.S. 352)). , 425 U.S. 352)).
In In National Archives and Records Administration v. Favish, the Supreme Court construed Exemption 7(C) so that a , the Supreme Court construed Exemption 7(C) so that a
requester must “establish a sufficient reason for .requester must “establish a sufficient reason for . . .. disclosure.” 541 U.S. at 172. To meet this burden, he or she must . disclosure.” 541 U.S. at 172. To meet this burden, he or she must
establish (1) “that the public interest sought to be advanced is a significant one, an interest more specific than having establish (1) “that the public interest sought to be advanced is a significant one, an interest more specific than having
the information for its own sake,” and (2) that “the information is likely to advance that interest. Otherwise, the the information for its own sake,” and (2) that “the information is likely to advance that interest. Otherwise, the
invasion of privacy is unwarranted.” invasion of privacy is unwarranted.” Id. When the public interest asserted by the requester concerns government When the public interest asserted by the requester concerns government
misconduct or negligence, the Court held that “the requester must produce evidence that would warrant a belief by a misconduct or negligence, the Court held that “the requester must produce evidence that would warrant a belief by a
reasonable person that the alleged Government impropriety might have occurred,” a showing requiring “more than a reasonable person that the alleged Government impropriety might have occurred,” a showing requiring “more than a
bare suspicion.”bare suspicion.” Id. at 174. at 174.
~~287~~ 294 See, e.g., , Fed. Labor Relations Auth., 510 U.S. at 502 (“Because the privacy interest of bargaining unit employees in , 510 U.S. at 502 (“Because the privacy interest of bargaining unit employees in
nondisclosure of their home addresses substantially out-weighs the negligible FOIA-related public interest in nondisclosure of their home addresses substantially out-weighs the negligible FOIA-related public interest in
disclosure, we conclude that disclosure would constitute a ‘clearly unwarranted invasion of personal privacy’” and that disclosure, we conclude that disclosure would constitute a ‘clearly unwarranted invasion of personal privacy’” and that
~~“FOIA, thus, does not require the agencies to divulge the addresses . . . .” (quoting 5 U.S.C. § 552(b)(6))). If, on the~~
~~other hand, the public interest in disclosure outweighs the asserted privacy interest, the information is not covered by~~
~~Exemption 6. See, e.g., Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 37 (D.C. 2002) (“Given the strong public~~
~~interest in knowing ‘what the government is up to,’ we hold that the Secretary has failed to rebut the presumption~~
~~favoring disclosure . . . .” (citation omitted)).~~
~~An agency’s redaction of sensitive information may, depending on the circumstances, be adequate to remove the~~
~~remaining contents of a record from Exemption 6’s protection. See Rose, 425 U.S. at 380-81 (writing that respondents’~~
~~“request for access to [the requested documents] with personal references or other identifying information deleted[]~~
~~respected the confidentiality interests embodied in Exemption 6,” but that if “deletion of personal references and other~~
~~identifying information is not sufficient to safeguard privacy, then the [documents] should not be disclosed” (internal~~
~~quotation marks and citations omitted)).~~
~~288 5 U.S.C. § 552(b)(7)(A)-(F); John Doe Agency v. John Doe Corp., 493 U.S. 146, 156 (1989) (“Exemption 7~~
~~Congressional Research Service~~
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~~The Freedom of Information Act (FOIA): A Legal Overview~~

(continued...) Congressional Research Service 35 The Freedom of Information Act (FOIA): A Legal Overview Exemption 7: Law Enforcement Records or Information FOIA’s seventh exemption applies to “records or information compiled for law enforcement purposes” but only where disclosure of such agency records “would” or “could reasonably be expected to” result in certain harms specified by the exemption (as discussed below).295 As the Supreme Court has explained, Exemption 7 stemmed from Congress’s belief “that law Supreme Court has explained, Exemption 7 stemmed from Congress’s belief “that law
enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies
be hindered in their investigations or placed at a disadvantage when it came time to present their be hindered in their investigations or placed at a disadvantage when it came time to present their
~~cases.”289~~case.”296
To qualify as exempt under Exemption 7, a record must have been “compiled” for law To qualify as exempt under Exemption 7, a record must have been “compiled” for law
enforcement purposes.enforcement purposes.~~290~~297 This criterion may be satisfied even if the record was not This criterion may be satisfied even if the record was not originally
compiled for law enforcement purposes, as the Supreme Court has held that this exemption also compiled for law enforcement purposes, as the Supreme Court has held that this exemption also
applies if material was subsequently gathered for law enforcement purposes, prior to the agency’s applies if material was subsequently gathered for law enforcement purposes, prior to the agency’s
response to the FOIA request.response to the FOIA request.~~291~~298 Further, the Court has held that material that Further, the Court has held that material that ~~was~~an agency originally originally
compiled “for law enforcement purposes continues to meet the threshold requirements of compiled “for law enforcement purposes continues to meet the threshold requirements of
Exemption 7 where [it] is reproduced or summarized in a new document prepared for a non-law-Exemption 7 where [it] is reproduced or summarized in a new document prepared for a non-law-
enforcement purpose.”enforcement purpose.”~~292~~299 As explained by the D.C. Circuit, “the term ‘compiled’ in Exemption 7 As explained by the D.C. Circuit, “the term ‘compiled’ in Exemption 7
requires that a document be created, gathered, or used by an agency for law enforcement purposes requires that a document be created, gathered, or used by an agency for law enforcement purposes
at some time before the agency invokes the exemption.”at some time before the agency invokes the exemption.”~~293~~300
Courts have applied Exemption 7 to records compiled for criminal, civil, and administrative Courts have applied Exemption 7 to records compiled for criminal, civil, and administrative
enforcement, as well as to materials associated with agencies’ national and homeland security enforcement, as well as to materials associated with agencies’ national and homeland security
functions.functions.~~294~~301 Further, the exemption not only applies to agencies that primarily engage in law Further, the exemption not only applies to agencies that primarily engage in law
~~enforcement, but also to agencies that possess both administrative and law enforcement~~
~~responsibilities (“mixed-function agencies”).295 Although, on judicial review, an agency must~~

“FOIA, thus, does not require the agencies to divulge the addresses.... ” (quoting 5 U.S.C. § 552(b)(6))). If, on the other hand, the public interest in disclosure outweighs the asserted privacy interest, the information is not covered by Exemption 6. See, e.g., Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 37 (D.C. 2002) (“Given the strong public interest in knowing ‘what the government is up to,’ we hold that the Secretary has failed to rebut the presumption favoring disclosure.... ” (citation omitted). An agency’s redaction of sensitive information may, depending on the circumstances, be adequate to remove the remaining contents of a record from Exemption 6’s protection. See Rose, 425 U.S. at 380–81 (writing that respondents’ “request for access to [the requested documents] with personal references or other identifying information deleted[] respected the confidentiality interests embodied in Exemption 6,” but that if “deletion of personal references and other identifying information is not sufficient to safeguard privacy, then the [documents] should not be disclosed” (internal citations omitted)). 295 5 U.S.C. § 552(b)(7)(A)–(F); John Doe Agency v. John Doe Corp., 493 U.S. 146, 156 (1989) (“Exemption 7 requires the Government to demonstrate that a record is ‘compiled for law enforcement purposes’ and that disclosure requires the Government to demonstrate that a record is ‘compiled for law enforcement purposes’ and that disclosure
would effectuate one or more of .would effectuate one or more of . . .. six specified harms.” (quoting 5 U.S.C. § 552(b)(7))). Exemption 7 is not limited . six specified harms.” (quoting 5 U.S.C. § 552(b)(7))). Exemption 7 is not limited
to to investigative records. records. See Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002); S. REP. NO. 221, at 23 (1983). Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002); S. REP. NO. 221, at 23 (1983).
Although at one time the act did confine the exemption’s scope to such records, Although at one time the act did confine the exemption’s scope to such records, see 5 U.S.C. § 552(b)(7) (1982), in 5 U.S.C. § 552(b)(7) (1982), in
1986, Congress amended Exemption 7 “by deleting the word ‘investigatory’ and inserting the words ‘or information,’ 1986, Congress amended Exemption 7 “by deleting the word ‘investigatory’ and inserting the words ‘or information,’
so that protection is now available to all ‘records or information compiled for law enforcement purposes.’”so that protection is now available to all ‘records or information compiled for law enforcement purposes.’” Abdelfattah Abdelfattah
v. DHS, 488 F.3d 178, 184 (3d Cir. 2007) (per curiam) (alteration omitted) (quoting 5 U.S.C. § 552(b)(7));v. DHS, 488 F.3d 178, 184 (3d Cir. 2007) (per curiam) (alteration omitted) (quoting 5 U.S.C. § 552(b)(7)); see Anti-Drug Abuse Act of 1986, Pub. L. Pub. L.
No. 99-570, § 1802, 100 Stat. 3207, 3207No. 99-570, § 1802, 100 Stat. 3207, 3207-–48 (1986). 48 (1986).
~~289~~296 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978).
~~290~~297 5 U.S.C. § 552(b)(7). 5 U.S.C. § 552(b)(7).
~~291~~298 John Doe Agency, 493 U.S. at 155. , 493 U.S. at 155.
~~292~~299 FBI v. Abramson, 456 U.S. 615, 631 FBI v. Abramson, 456 U.S. 615, 631-–32 (1982). 32 (1982).
~~293~~300 Public Emp.’s for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, 740 F.3d 195, 203 (D.C. Public Emp.’s for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, 740 F.3d 195, 203 (D.C.
Cir. 2014) (Kavanaugh, J.). Cir. 2014) (Kavanaugh, J.).
~~294 DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 7, at 7-9 (May 24, 2019)~~
~~[hereinafter DOJ GUIDE, EXEMPTION~~301 DOJ, Office of Info. Pol’y, Guide to the Freedom of Information Act, Exemption 7, at 7–9 (Jan. 27, 2022) [hereinafter DOJ Guide, Exemption 7], https://www.justice.gov/oip/foia-guide/exemption_7/ 7], https://www.justice.gov/oip/foia-guide/exemption_7/~~download.~~ ~~See~~dl?inline; see, e.g., Stein , Stein
v. v. (continued...) Congressional Research Service 36 link to page 40 The Freedom of Information Act (FOIA): A Legal Overview enforcement, but also to agencies that possess both administrative and law enforcement responsibilities (“mixed-function agencies”).302 Although, on judicial review, an agency must establish that materials withheld under Exemption 7 are compiled for purposes of law enforcement to properly invoke the exemption, agencies whose primary function is criminal law enforcement are often subject to comparatively relaxed standards of proof on this question than are mixed-function agencies.303 Exemption 7 applies only to certain statutorily specified types of law enforcement records.304 Therefore, establishing that material has been compiled for law enforcement purposes is insufficient to exempt it from disclosure under FOIA; even if a withheld record was compiled for such purposes, it may be exempted from disclosure only if disclosure may or will lead to one of the harms identified in subexemptions (A) through (F).305 United States SEC, 266 F. Supp. 3d 326, 343 (D.D.C. 2017) (“Exemption 7(A) applies to law enforcement records United States SEC, 266 F. Supp. 3d 326, 343 (D.D.C. 2017) (“Exemption 7(A) applies to law enforcement records
compiled for civil, administrative, and criminal matters.”) (citing compiled for civil, administrative, and criminal matters.”) (citing Tax Analysts, 294 F.3d at 77)); Ctr. for Nat’l Sec. , 294 F.3d at 77)); Ctr. for Nat’l Sec.
Studies v. DOJ, 331 F.3d 918, 926 (2003) (determining that 9/11 detainees’ names satisfied Exemption 7’s threshold Studies v. DOJ, 331 F.3d 918, 926 (2003) (determining that 9/11 detainees’ names satisfied Exemption 7’s threshold
requirement because “[t]he terrorism investigation is one of DOJ’s chief law enforcement duties, and the investigation requirement because “[t]he terrorism investigation is one of DOJ’s chief law enforcement duties, and the investigation
concerns a heinous violation of federal law as well as a breach of this nation’s security”) (concerns a heinous violation of federal law as well as a breach of this nation’s security”) (~~quotation marks and~~ citation citation
omitted);omitted); see also Milner v. Dep’t of Navy, 562 U.S. 562, 582Milner v. Dep’t of Navy, 562 U.S. 562, 582-–83 (2011) (Alito, J., concurring) (writing that “[t]he 83 (2011) (Alito, J., concurring) (writing that “[t]he
ordinary understanding of law enforcement includes not just the investigation and prosecution of offenses that have ordinary understanding of law enforcement includes not just the investigation and prosecution of offenses that have
already been committed, but also proactive steps designed to prevent criminal activity and to maintain security” and already been committed, but also proactive steps designed to prevent criminal activity and to maintain security” and
that “in recent years, terrorism prevention and national security measures have been recognized as vital to effective law that “in recent years, terrorism prevention and national security measures have been recognized as vital to effective law
enforcement efforts in our Nation”). enforcement efforts in our Nation”).
~~295~~302 See, e.g.,, Tax Analysts, 294 F.3d at 77 (stating that “FOIA makes no distinction between agencies whose principal , 294 F.3d at 77 (stating that “FOIA makes no distinction between agencies whose principal
function is criminal law enforcement and agencies with both law enforcement and administrative functions” and that function is criminal law enforcement and agencies with both law enforcement and administrative functions” and that
“agencies like IRS [the Internal Revenue Service], that combine administrative and law enforcement functions, as well “agencies like IRS [the Internal Revenue Service], that combine administrative and law enforcement functions, as well
as agencies like the Federal Bureau of Investigation (‘FBI’), whose principal function is criminal law enforcement, may as agencies like the Federal Bureau of Investigation (‘FBI’), whose principal function is criminal law enforcement, may
seek to avoid disclosure of records or information pursuant to Exemption 7”); seek to avoid disclosure of records or information pursuant to Exemption 7”); id. (writing that “the District Court (writing that “the District Court
[below] correctly identified IRS as a mixed-function agency”). [below] correctly identified IRS as a mixed-function agency”). See Margaret Kwoka, Deferring to Secrecy, 54 B.C. L. ~~Margaret Kwoka, Deferring to Secrecy, 54 B.C. L.~~
~~Congressional Research Service~~
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~~establish that materials withheld under Exemption 7 are compiled for purposes of law~~
~~enforcement to properly invoke the exemption, agencies whose primary function is criminal law~~
~~enforcement are often subject to comparatively relaxed standards of proof on this question than~~
~~are mixed-function agencies.296~~
~~Exemption 7 only applies to certain statutorily specified types of law enforcement records.297~~
~~Therefore, establishing that material has been compiled for law enforcement purposes is~~
~~insufficient to exempt it from disclosure under FOIA; even if a withheld record was compiled for~~
~~such purposes, it may only be exempted from disclosure if disclosure may or will lead to one of~~
~~the harms identified in subexemptions (A) through (F).298~~
Exemption 7(A) authorizes the withholding of law enforcement records where disclosure “could
~~reasonably be expected to interfere with enforcement proceedings.”299 Courts have held that~~
~~Exemption 7(A) applies in the context of a “pending or prospective” enforcement proceeding and~~
~~where disclosure “could reasonably be expected to cause some articulable harm” to those~~
~~proceedings,300 such as by obstructing an agency’s investigation or placing an agency “at a~~

REV. 185, 217 (2013) (“Both agencies whose principal function is law enforcement, such as the [FBI], and agencies REV. 185, 217 (2013) (“Both agencies whose principal function is law enforcement, such as the [FBI], and agencies
that engage in law enforcement activities and other administrative functions, such as the [IRS], can claim this that engage in law enforcement activities and other administrative functions, such as the [IRS], can claim this
exemption.”) (citing exemption.”) (citing Tax Analysts, 294 F.3d at 77). , 294 F.3d at 77).
~~296~~303 See Pratt v. Webster, 673 F.2d 408, 418 (D.C. Cir. 1982). Courts have generally applied one of two tests when Pratt v. Webster, 673 F.2d 408, 418 (D.C. Cir. 1982). Courts have generally applied one of two tests when
evaluating whether records withheld by an agency whose principal purpose is criminal law enforcement were compiled evaluating whether records withheld by an agency whose principal purpose is criminal law enforcement were compiled
for law enforcement purposes. for law enforcement purposes. See Jordan v. DOJ, 668 F.3d 1188, 1193 Jordan v. DOJ, 668 F.3d 1188, 1193-–94 (10th Cir. 2011) (summarizing the two 94 (10th Cir. 2011) (summarizing the two
tests). Many apply what is known as the “rational nexus test,” which demands that, in the words of the U.S. Court of tests). Many apply what is known as the “rational nexus test,” which demands that, in the words of the U.S. Court of
Appeals for the Third Circuit, “an agency .Appeals for the Third Circuit, “an agency . . .. demonstrate that the relationship between its authority to enforce a statute . demonstrate that the relationship between its authority to enforce a statute
or regulation and the activity giving rise to the requested documents is based upon information sufficient to support at or regulation and the activity giving rise to the requested documents is based upon information sufficient to support at
least a colorable claim of the relationship’s rationality.” least a colorable claim of the relationship’s rationality.” Abdelfattah, 488 F.3d at 186. The rational nexus test was first , 488 F.3d at 186. The rational nexus test was first
articulated by the D.C. Circuit in articulated by the D.C. Circuit in Pratt v. Webster. . See 673 F.2d at 420 673 F.2d at 420-–21 (holding, prior to the 1986 amendments that 21 (holding, prior to the 1986 amendments that
broadened Exemption 7 to embrace noninvestigatory records,broadened Exemption 7 to embrace noninvestigatory records, see discussion and sources supra no note ~~288~~295, that an agency must establish that the that an agency must establish that the
“investigatory activities that give rise to the documents sought .“investigatory activities that give rise to the documents sought . . .. relate[] to the enforcement of federal laws or to the . relate[] to the enforcement of federal laws or to the
maintenance of national security” and that “the nexus between the investigation and one of the agency’s law maintenance of national security” and that “the nexus between the investigation and one of the agency’s law
enforcement duties .enforcement duties . . .. [is] based on information sufficient to support at least a ‘colorable claim’ of its rationality”). In . [is] based on information sufficient to support at least a ‘colorable claim’ of its rationality”). In
contrast, pursuant to the “per se rule,” materials withheld by agencies that primarily engage in criminal law contrast, pursuant to the “per se rule,” materials withheld by agencies that primarily engage in criminal law
enforcement are deemed to be “inherently records compiled for law enforcement purposes within the meaning of enforcement are deemed to be “inherently records compiled for law enforcement purposes within the meaning of
Exemption 7.” Curran v. DOJ, 813 F.2d 473, 475 (1st Cir. 1987) (Exemption 7.” Curran v. DOJ, 813 F.2d 473, 475 (1st Cir. 1987) (~~quotation marks and~~ citation omitted). However, citation omitted). However,
courts often require a more rigorous showing from mixed-function agencies that the information being withheld was courts often require a more rigorous showing from mixed-function agencies that the information being withheld was
compiled for law enforcement purposes. compiled for law enforcement purposes. See, e.g., , Tax Analysts, 294 F.3d at 77 (explaining that the IRS was “subject to , 294 F.3d at 77 (explaining that the IRS was “subject to
an exacting standard when it comes to the threshold requirement of Exemption 7”); Mayer, Brown, Rowe & Maw LLP an exacting standard when it comes to the threshold requirement of Exemption 7”); Mayer, Brown, Rowe & Maw LLP
v. IRS, No. 04-2187, 2006 v. IRS, No. 04-2187, 2006 ~~U.S. Dist. LEXIS 58410, at *23~~WL 2425523, at *7 (D.D.C. Aug. 21, 2006) (“Because the IRS is an agency that (D.D.C. Aug. 21, 2006) (“Because the IRS is an agency that
combines administrative and law enforcement functions, it is entitled to less deference when evaluating its claim that combines administrative and law enforcement functions, it is entitled to less deference when evaluating its claim that
information was compiled for law enforcement purposes.”). information was compiled for law enforcement purposes.”). See DOJ GUIDE, EXEMPTION 7, DOJ GUIDE, EXEMPTION 7, supra note note ~~294, at 17-21.~~
~~297~~ Error! Bookmark not defined., at 17–21. 304 See 5 U.S.C. § 552(b)(7)(A) 5 U.S.C. § 552(b)(7)(A)-–(F). (F).
~~298~~305 See John Doe Agency, 493 U.S. at 156. Congressional Research Service 37 The Freedom of Information Act (FOIA): A Legal Overview Exemption 7(A) Exemption 7(A) authorizes the withholding of law enforcement records where disclosure “could reasonably be expected to interfere with enforcement proceedings.”306 Courts have held that Exemption 7(A) applies in the context of a “pending or prospective” enforcement proceeding and where disclosure “could reasonably be expected to cause some articulable harm” to those proceedings,307 such as by obstructing an agency’s investigation or placing an agency “at a disadvantage when it came time to present [its] case.”308 Courts, however, See John Doe Agency, 493 U.S. at 156.
~~299 5 U.S.C. § 552(b)(7)(A).~~
~~300 Manna v. DOJ, 51 F.3d 1158, 1164 (3d Cir. 1995); see also Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1114~~
~~(D.C. Cir. 2007) (explaining that Exemption 7(A) applies where enforcement proceedings are “reasonably anticipated”)~~
~~(internal quotation marks and citation omitted). In NLRB v. Robbins Tire & Rubber Co., the Supreme Court explained~~
~~that mandating the disclosure of witness statements prior to an NLRB unfair practices hearing raises the risk that~~
~~employers or unions “will coerce or intimidate employees and other[]” witnesses and may “have a chilling effect on the~~
~~Board’s sources.” 437 U.S. at 239-41. The Court held that disclosure in such an instance “would constitute an~~
~~‘interference’ with NLRB enforcement proceedings” in that it would “giv[e] a party litigant earlier and greater access~~
~~to the Board’s case than he would otherwise have.” Id. at 241. Crucially, the Court also held that, under Exemption~~
~~7(A), courts are authorized to determine “that, with respect to particular kinds of enforcement proceedings, disclosure~~
~~of particular kinds of investigatory records while a case is pending would generally ‘interfere with enforcement~~
~~proceedings.’” Id. at 236 (emphasis added) (quoting 5 U.S.C. § 552(b)(7)(A)). This “generic” method allows agencies~~
~~to eschew the “document-by-document” approach to justifying withholding decisions. DOJ, OFFICE OF INFO. POL’Y,~~
~~Congressional Research Service~~
38

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~~disadvantage when it came time to present [its] case[].”301 However, courts~~ have established have established
limits to Exemption 7(A)’s application. For example, many courts have held that agencies must limits to Exemption 7(A)’s application. For example, many courts have held that agencies must
satisfy a high burden in proving that harm will occur from “the release of information that the satisfy a high burden in proving that harm will occur from “the release of information that the
targets of the investigation already possesstargets of the investigation already possess.””~~302~~309
Exemption 7(B) ~~applies where disclosure~~ Exemption 7(B) applies where disclosure of law enforcement records “would deprive a person of a right to a fair trial or an “would deprive a person of a right to a fair trial or an
impartial adjudication.”impartial adjudication.”~~303~~310 The D.C. Circuit has explained “that a trial or adjudication [must be] The D.C. Circuit has explained “that a trial or adjudication [must be]
pending or truly imminent” in order to trigger Exemption 7(B), and “that it [must be] more pending or truly imminent” in order to trigger Exemption 7(B), and “that it [must be] more
probable than not that disclosure .probable than not that disclosure . . .. would seriously interfere with the fairness of those . would seriously interfere with the fairness of those
proceedings.”proceedings.”~~304And the~~311 The D.C. Circuit has held that, as to D.C. Circuit has held that, as to a disclosure’s effect on the fairness of disclosure’s effect on the fairness of
proceedings, courts must examine “the significance of any alleged unfairness in light proceedings, courts must examine “the significance of any alleged unfairness in light ~~of its effect~~
~~. . . on the proceedings as a whole,” and not simply whether disclosure would bestow “a slight~~
~~advantage . . . on a party in a single phase of a case.”305~~
Exemption 7(C) authorizes the withholding of records where disclosure “could reasonably be
~~expected to constitute an unwarranted invasion of personal privacy.”306 Like Exemption 6,307~~
~~Exemption 7(C) was designed to protect personal privacy interests. However, as the Supreme~~
~~Court has explained, the latter exemption provides more protection for materials under its~~
~~coverage than does the former.308 Exemption 6 only applies to disclosures that “would constitute a~~
clearly unwarranted invasion of personal privacy.”309 Exemption 7(C), however, is more
~~encompassing: it does not include the word “clearly,” and it protects against disclosures that~~
~~merely “could reasonably be expected to” effect an unwarranted intrusion into personal~~

306 5 U.S.C. § 552(b)(7)(A). 307 Manna v. DOJ, 51 F.3d 1158, 1164 (3d Cir. 1995); see also Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1114 (D.C. Cir. 2007) (explaining that Exemption 7(A) applies where enforcement proceedings are “reasonably anticipated”) (internal citation omitted). In NLRB v. Robbins Tire & Rubber Co., the Supreme Court explained that mandating the disclosure of witness statements prior to an NLRB unfair practices hearing raises the risk that employers or unions “will coerce or intimidate employees and other[]” witnesses and may “have a chilling effect on the Board’s sources.” 437 U.S. at 239–41. The Court held that disclosure in such an instance “would constitute an ‘interference’ with NLRB enforcement proceedings” in that it would “giv[e] a party litigant earlier and greater access to the Board’s case than he would otherwise have.” Id. at 241. Crucially, the Court also held that, under Exemption 7(A), courts are authorized to determine “that, with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally ‘interfere with enforcement proceedings.’” Id. at 236 (emphasis added) (quoting 5 U.S.C. § 552(b)(7)(A)). This “generic” method allows agencies to eschew the “document-by-document” approach to justifying withholding decisions. DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 7(A), at 20 (Aug. 21, 2019), GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 7(A), at 20 (Aug. 21, 2019),
https://www.justice.gov/oip/page/file/1197816/download.https://www.justice.gov/oip/page/file/1197816/download.
~~301~~ 308 NLRB v. Tire & Rubber Co., 437 U.S. 214, NLRB v. Tire & Rubber Co., 437 U.S. 214, ~~225~~224 (1978) (“In originally enacting Exemption 7, Congress recognized (1978) (“In originally enacting Exemption 7, Congress recognized
that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in
their investigations or placed at a disadvantage when it came time to present their cases.”). their investigations or placed at a disadvantage when it came time to present their cases.”).
~~302~~309 Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng’rs, 677 F. Supp. 2d 101, 108 (D.D.C. 2009) (emphasis Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng’rs, 677 F. Supp. 2d 101, 108 (D.D.C. 2009) (emphasis
omitted) (citing Campbell v. HHS, 682 F.2d 256, 265 (D.C. Cir. 1982)); omitted) (citing Campbell v. HHS, 682 F.2d 256, 265 (D.C. Cir. 1982)); cf. Wright v. Occupational Safety & Health Wright v. Occupational Safety & Health
Admin., 822 F.2d 642, 646 (7th Cir. 1987) (internal Admin., 822 F.2d 642, 646 (7th Cir. 1987) (internal ~~quotation marks and~~ citation omitted) (“We also find that [the citation omitted) (“We also find that [the
Occupational Safety and Health Administration (OSHA)] has not provided an adequate factual basis to allow a court to Occupational Safety and Health Administration (OSHA)] has not provided an adequate factual basis to allow a court to
determine whether the category of evidence and supporting information compiled by the [compliance safety health determine whether the category of evidence and supporting information compiled by the [compliance safety health
officer] is exempt from disclosure. Although there may be reason to believe that such information should be exempt officer] is exempt from disclosure. Although there may be reason to believe that such information should be exempt
under [Exemption] 7(A) to prevent giving away OSHA’s case, this category may contain documents that Union Oil under [Exemption] 7(A) to prevent giving away OSHA’s case, this category may contain documents that Union Oil
itself provided to OSHA during the course of the agency’s investigation. In that case, it is not clear to us why public itself provided to OSHA during the course of the agency’s investigation. In that case, it is not clear to us why public
disclosure of this information would provide Union Oil with any information that it does not already have.”). disclosure of this information would provide Union Oil with any information that it does not already have.”).
~~303~~310 5 U.S.C. § 552(b)(7)(B). 5 U.S.C. § 552(b)(7)(B).
~~304~~311 Chiquita Brands Int’l v. SEC, 805 F.3d 289, 294 (D.C. Cir. 2015 Chiquita Brands Int’l v. SEC, 805 F.3d 289, 294 (D.C. Cir. 2015~~) (quotation marks omitted~~) (quoting Wash. Post ) (quoting Wash. Post
Co. v. DOJ, 863 F.2d 96, 102 (D.C. Cir. 1988)). The D.C. Circuit has held that a “trial” as used in Exemption 7(B) Co. v. DOJ, 863 F.2d 96, 102 (D.C. Cir. 1988)). The D.C. Circuit has held that a “trial” as used in Exemption 7(B)
refers to “the ultimate determination of factual and legal claims by judge or jury in a judicial proceeding” and “that refers to “the ultimate determination of factual and legal claims by judge or jury in a judicial proceeding” and “that
Exemption 7(B) comes into play only when it is probable that the release of law enforcement records will seriously Exemption 7(B) comes into play only when it is probable that the release of law enforcement records will seriously
interfere with the fairness of that final step [of a judicial proceeding] which is called the trial.” interfere with the fairness of that final step [of a judicial proceeding] which is called the trial.” Id. at 295 (at 295 (~~quotation~~
~~marks and~~ citation omitted). The court also held that Exemption 7(B)’s reference to “adjudication” “refers to citation omitted). The court also held that Exemption 7(B)’s reference to “adjudication” “refers to
determinations made by administrative agencies, not,” as the appellant in the case argued, “to pretrial decisions issued determinations made by administrative agencies, not,” as the appellant in the case argued, “to pretrial decisions issued
~~by a judge.” Id. at 296.~~
~~305 Id. at 297-98.~~
~~306 5 U.S.C. § 552(b)(7)(C).~~
~~307 Id. § 552(b)(6). See supra “Exemption 6: Personnel, Medical, and Similar Files.”~~
~~308 DOD v. Fed. Labor Relations Auth., 510 U.S. 487, 496 n.6 (1994); see also 3 HICKMAN & PIERCE, JR., supra note~~
~~151, § 21.13, at 2234.~~
~~309 5 U.S.C. § 552(b)(6) (emphasis added).~~
~~Congressional Research Service~~
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~~privacy.310~~by a judge.” Id. at 296. Congressional Research Service 38 link to page 37 link to page 22 link to page 22 link to page 37 link to page 38 link to page 22 The Freedom of Information Act (FOIA): A Legal Overview of its effect ... on the proceedings as a whole,” and not simply whether disclosure would bestow “a slight advantage ... on a party in a single phase of a case.”312 Exemption 7(C) Exemption 7(C) authorizes the withholding of law enforcement records where disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”313 Like Exemption 6,314 Exemption 7(C) was designed to protect personal privacy interests. As the Supreme Court has explained, however, Exemption 7(C) provides more protection for materials under its coverage than does Exemption 6.315 Exemption 6 applies only to disclosures that “would constitute a clearly unwarranted invasion of personal privacy.”316 Exemption 7(C) is more encompassing: it does not include the word “clearly,” and it protects against disclosures that merely “could reasonably be expected to” effect an unwarranted intrusion into personal privacy.317 Despite these differences, however, both exemptions are guided by many of the same Despite these differences, however, both exemptions are guided by many of the same
privacy principles discussed above in relation to Exemption 6.privacy principles discussed above in relation to Exemption 6.~~311~~318 For example, courts determining For example, courts determining
the availability of Exemption 7(C) often engage in the same type of case-by-case balancing of the the availability of Exemption 7(C) often engage in the same type of case-by-case balancing of the
private interests at stake and the public interest in disclosure as they do in the Exemption 6 private interests at stake and the public interest in disclosure as they do in the Exemption 6
context.context.~~312~~319
Under Exemption 7(C), case-by-case balancing may be eschewed in favor of a categorical approach in some circumstances.320 In Kissinger v. Reporters Committee for Freedom of the Press, the Supreme Court determined that there was a “substantial” privacy interest in “rap sheets”—records of individuals’ criminal histories—which the Court described as publicly available but practically obscure.321 In asserting the principle of “categorical balancing” in the Exemption 7(C) context, the Court explained, “When the subject of such a rap sheet is a private citizen and when the information is in the Government’s control as a compilation, rather than as a record of ‘what the Government is up to,’ the privacy interest protected by Exemption 7(C) is in fact at its apex while the FOIA-based public interest in disclosure is at its nadir.”322 “Such a disparity on the scales of justice,” the Court continued, “holds for a class of cases without regard to individual circumstances; the standard virtues of bright-line rules are thus present, and the difficulties attendant to ad hoc adjudication may be avoided.”323 312 Id. at 297–98. 313 5 U.S.C. § 552(b)(7)(C). 314 Id. § 552(b)(6). See supra Exemption 6: Personnel, Medical, and Similar Files. 315 DOD v. Fed. Labor Relations Auth., 510 U.S. 487, 496 n.6 (1994); see also HICKMAN & PIERCE, JR., supra note 147, § 21.13, at 2234. 316 5 U.S.C. § 552(b)(6) (emphasis added). 317 Id. § 552(b)(7)(C) (emphasis added); Reporters Comm., 489 U.S. at 756; see also PIERCE, JR., supra note 150, at 396. 318 See supra Exemption 6: Personnel, Medical, and Similar Files; DOJ GUIDE, EXEMPTION 6, supra note 282, passim. 319 See, e.g., CREW v. DOJ, 746 F.3d 1082, 1091–96 (D.C. Cir. 2014). 320~~Exemption 7(D)~~ ~~applies to disclosures which “could reasonably be expected to disclose the~~
~~identity of a confidential source,” as well as to “information furnished by a confidential source”~~
~~where “records or information [were] compiled by criminal law enforcement authority in the~~
~~course of a criminal investigation or by an agency conducting a lawful national security~~
~~intelligence investigation.”313 A source is “confidential” if the government expressly pledges to~~
~~keep information supplied by the source in confidence or if “such an assurance could be~~
~~reasonably inferred” from the circumstances.314 According to the Supreme Court’s decision in~~
DOJ v. Landano, “[a] source should be deemed confidential if the source furnished information
~~with the understanding that the [agency] would not divulge the communication except to the~~
extent [it] thought necessary for law enforcement purposes.”315 While the Court in Landano
~~rejected the government’s argument that confidentiality is generally presumed simply because a~~
~~source has worked with the FBI during a criminal investigation, it did hold that such a~~
~~presumption may exist where “circumstances such as the nature of the crime investigated and the~~
~~witness’ relation to it support an inference of confidentiality.”316~~
Exemption 7(E) provides that records may be withheld where disclosure “would disclose
~~techniques and procedures for law enforcement investigations or prosecutions, or would disclose~~

~~310 Id. § 552(b)(7)(C); Reporters Comm., 489 U.S. at 756; see also PIERCE, JR., supra note 154, at 396.~~
~~311 See supra “Exemption 6: Personnel, Medical, and Similar Files”; DOJ GUIDE, EXEMPTION 6, supra note 275, passim.~~
~~312 See, e.g., CREW v. DOJ, 746 F.3d 1082, 1091-96 (D.C. Cir. 2014). Under Exemption 7(C), however, case-by-case~~
~~balancing may be eschewed in favor of a categorical approach in some circumstances.~~ See Reporters Comm., 489 U.S. , 489 U.S.
at 776 (holding “that categorical decisions may be appropriate and individual circumstances disregarded when a case at 776 (holding “that categorical decisions may be appropriate and individual circumstances disregarded when a case
fits into a genus in which the balance characteristically tips in one direction”). fits into a genus in which the balance characteristically tips in one direction”). ~~In Reporters Committee, the Supreme~~
~~Court determined that there was a “substantial” privacy interest in “rap sheets”—records of individuals’ criminal~~
~~histories—which the Court described as publicly available but practically obscure. 489 U.S. at 751,764, 780. In~~
~~asserting the principle of “categorical balancing” in the Exemption 7(C) context, the Court explained that “[w]hen the~~
~~subject of such a rap sheet is a private citizen and when the information is in the Government’s control as a~~
~~compilation, rather than as a record of ‘what the Government is up to,’ the privacy interest protected by Exemption~~
~~7(C) is in fact at its apex while the FOIA-based public interest in disclosure is at its nadir.” Id. at 780. “Such a disparity~~
~~on the scales of justice,” the Court continued, “holds for a class of cases without regard to individual circumstances; the~~
~~standard virtues of bright-line rules are thus present, and the difficulties attendant to ad hoc adjudication may be~~
~~avoided.” Id.; see PIERCE, JR., ET AL., supra note 154, at 396 (writing that the Reporters Committee “Court adopted a~~
~~‘categorical’ approach by holding that rap sheets could not be obtained through the FOIA pursuant to this or any other~~
~~request”).~~
~~313 5 U.S.C. § 552(b)(7)(D). Exemption 7(D) states, in full, that “records or information compiled for law enforcement~~
~~purposes” are exempt where disclosure:~~
321 Id. at 751, 764, 780. 322 Id. at 780. 323 Id.; see PIERCE, JR., supra note 150, at 396 (writing that the Reporters Committee “Court adopted a ‘categorical’ approach by holding that rap sheets could not be obtained through the FOIA pursuant to this or any other request”). Congressional Research Service 39 The Freedom of Information Act (FOIA): A Legal Overview Exemption 7(D) Exemption 7(D) applies to disclosures of law enforcement material that “could reasonably be expected to disclose the identity of a confidential source,” as well as to “information furnished by a confidential source” where “record[s] or information [were] compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation.”324 A source is “confidential” if the government expressly pledges to keep information supplied by the source in confidence or if “such an assurance could be reasonably inferred” from the circumstances.325 According to the Supreme Court’s decision in DOJ v. Landano, a “source should be deemed confidential if the source furnished information with the understanding that the [agency] would not divulge the communication except to the extent [it] thought necessary for law enforcement purposes.”326 Although the Court in Landano rejected the government’s argument that confidentiality is generally presumed simply because a source has worked with the FBI during a criminal investigation, it did hold that such a presumption may exist where “circumstances such as the nature of the crime investigated and the witness’ relation to it support an inference of confidentiality.”327 Exemption 7(E) Exemption 7(E) provides that an agency may withhold law enforcement records where their release “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.”328 This subexemption applies to two different types of investigation and prosecution materials: “techniques and procedures” and “guidelines.” Courts are split as to whether the circumvention requirement applies to the disclosure of both types of materials or only to the “guidelines” mentioned in the subexemption’s second clause.329 324 5 U.S.C. § 552(b)(7)(D). Exemption 7(D) states, in full, that “records or information compiled for law enforcement purposes” are exempt where disclosure “could reasonably be expected to disclose the identity of a confidential source, including a State, could reasonably be expected to disclose the identity of a confidential source, including a State,
local, or foreign agency or authority or any private institution which furnished information on a local, or foreign agency or authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled by criminal law confidential basis, and, in the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation or by an agency conducting a lawful 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.national security intelligence investigation, information furnished by a confidential source.
” Id.
~~314~~325 DOJ v. Landano, 508 U.S. 165, 172 (1993 DOJ v. Landano, 508 U.S. 165, 172 (1993~~) (internal quotation marks omitted~~) (quoting S. REP. NO. 1200, at 13 ) (quoting S. REP. NO. 1200, at 13
(1974) (Conf. Rep.)). (1974) (Conf. Rep.)).
~~315~~326 Id. at 174. at 174.
~~316~~327 Id. at 180 at 180~~-81.~~
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~~guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably~~
~~be expected to risk circumvention of the law.”317 As can be seen from the text, this subexemption~~
~~applies to two different types of investigation and prosecution materials: “techniques and~~
~~procedures” and “guidelines.” Courts are split as to whether the circumvention requirement~~
~~applies to the disclosure of both types of materials or only to the “guidelines” described in the~~
~~subexemption’s second clause.318~~
~~Exemption 7(F)~~ ~~authorizes withholding~~–81. 328 5 U.S.C. § 552(b)(7)(E). 329 Compare, e.g., Hamdan v. DOJ, 797 F.3d 759, 778 (9th Cir. 2015), and Allard K. Lowenstein Int’l Human Rights Project v. DHS, 626 F.3d 678, 681 (2d Cir. 2010) (declaring that “basic rules of grammar and punctuation dictate that the [circumvention language] modifies only the immediately antecedent ‘guidelines’ clause and not the more remote ‘techniques and procedures’ clause ), with Sack v. DOD, 823 F.3d 687, 694 (D.C. Cir. 2016) and Catledge v. Mueller, 323 F. App’x 464, 466–67 (7th Cir. 2009) (explaining that “[u]nder [Exemption 7(E)] government agencies may refuse to release ‘records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... would disclose techniques and procedures for law enforcement investigations or prosecutions ... if such disclosure could reasonably be expected to risk circumvention of the law.’” (quoting 5 U.S.C. § 552(b)(7)(E)). Congressional Research Service 40 link to page 5 link to page 22 link to page 6 The Freedom of Information Act (FOIA): A Legal Overview Exemption 7(F) Exemption 7(F) authorizes withholding law enforcement records where disclosure “could reasonably be expected to where disclosure “could reasonably be expected to
endanger the life or physical safety of any individual.”endanger the life or physical safety of any individual.”~~319~~330 Prior to 1986, this subexemption only Prior to 1986, this subexemption only
protected against disclosures that could endanger law enforcement personnel.protected against disclosures that could endanger law enforcement personnel.~~320 However, the~~
331 The 1986 amendments to FOIA expanded Exemption 7(F)’s coverage by substituting “any individual” 1986 amendments to FOIA expanded Exemption 7(F)’s coverage by substituting “any individual”
for “law enforcement personnel.”for “law enforcement personnel.”~~321~~332
Exemption 8: Financial Institution Reports
Exemption 8 protects matters “contained in or related to examination, operating, or condition Exemption 8 protects matters “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 reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or
supervision of financial institutions.”supervision of financial institutions.”~~322~~333 The Senate report The Senate report ~~underlying~~accompanying the original law explains the original law explains
that, by limiting the availability of the covered financial reports to the agencies tasked with that, by limiting the availability of the covered financial reports to the agencies tasked with
overseeing financial institutions, the exemption was intended to protect such institutions’ overseeing financial institutions, the exemption was intended to protect such institutions’
security.security.~~323~~334 Courts have interpreted Exemption 8 broadly.335 Courts have also opined that Exemption 8 was intended “to safeguard the relationship Courts have also opined that Exemption 8 was intended “to safeguard the relationship
between the banks and their supervising agencies.”between the banks and their supervising agencies.”~~324~~

~~317 5 U.S.C. § 552(b)(7)(E).~~
~~318 Compare, e.g., Hamdan v. DOJ, 797 F.3d 759, 778 (9th Cir. 2015), and Allard K. Lowenstein Int’l Human Rights~~
~~Project v. DHS, 626 F.3d 678, 681 (2d Cir. 2010) (declaring that “basic rules of grammar and punctuation dictate that~~
~~the [circumvention language] modifies only the immediately antecedent ‘guidelines’ clause and not the more remote~~
~~‘techniques and procedures’ clause ), with Sack v. DOD, 823 F.3d 687, 694 (D.C. Cir. 2016) and Catledge v. Mueller,~~
~~323 F. App’x 464, 466-67 (7th Cir. 2009) (explaining that “[u]nder [Exemption 7(E)] government agencies may refuse~~
~~to release ‘records or information compiled for law enforcement purposes, but only to the extent that the production of~~
~~such law enforcement records or information . . . would disclose techniques and procedures for law enforcement~~
~~investigations or prosecutions . . . if such disclosure could reasonably be expected to risk circumvention of the law.’”~~
~~(quoting 5 U.S.C. § 552(b)(7)(E))).~~
~~319 5 U.S.C. § 552(b)(7)(F).~~
~~320 Meese Memorandum, supra note 21 (citing 5 U.S.C. § 552(b)(7)(F) (1982)).~~
~~321 Id. (citing Pub. L. No. 99-570, § 1802, 100 Stat. 3207, 3207-49 (1986)).~~
~~322 5 U.S.C. § 552(b)(8). Courts have interpreted Exemption 8 broadly.~~336 Exemption 9: Geological and Geophysical Information and Data Concerning Wells Exemption 9 exempts from disclosure “geological and geophysical information and data, including maps, concerning wells.”337 Courts have not had many opportunities to interpret this exemption, as agencies do not often invoke it.338 330 5 U.S.C. § 552(b)(7)(F). 331 Meese Memorandum, supra note 8 (citing 5 U.S.C. § 552(b)(7)(F) (1982)). 332 Id. (citing Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1802, 100 Stat. 3207, 3207–49 (1986)). 333 5 U.S.C. § 552(b)(8). 334 S. REP. NO. 813, at 10 (1965); accord H.R. REP. NO. 1497, at 11 (1966) (explaining that Exemption 8 “is designed to insure the security and integrity of financial institutions, for the sensitive details collected by Government agencies which regulate these institutions could, if indiscriminately disclosed, cause great harm”). The D.C. Circuit has written that “there was concern that disclosure of examination, operation, and condition reports containing frank evaluations of the investigated banks might undermine public confidence and cause unwarranted runs on banks.” Consumers Union of U.S., Inc. v. Heimann, 589 F.2d 531, 534 (D.C. Cir. 1978). 335 See, e.g., Williams & Connolly LLP v. Office , Williams & Connolly LLP v. Office
of the Comptroller of the Currency, 39 F. Supp. 3d 82, 90 (D.D.C. 2014) (explaining that “this Circuit has repeatedly of the Comptroller of the Currency, 39 F. Supp. 3d 82, 90 (D.D.C. 2014) (explaining that “this Circuit has repeatedly
recognized the broad scope Congress accorded Exemption 8”); Pub. Investors Arbitration Bar Ass’n v. SEC, 930 F. recognized the broad scope Congress accorded Exemption 8”); Pub. Investors Arbitration Bar Ass’n v. SEC, 930 F.
Supp. 2d 55, 62 (D.D.C. 2013) (“[T]he ‘related to’ language [in Exemption 8] casts a wide net of non-disclosure over Supp. 2d 55, 62 (D.D.C. 2013) (“[T]he ‘related to’ language [in Exemption 8] casts a wide net of non-disclosure over
any documents that are logically connected to an ‘examination, operating, or condition report[].’”) (alteration in any documents that are logically connected to an ‘examination, operating, or condition report[].’”) (alteration in
original) (quoting 5 U.S.C. § 552(b)(8)). original) (quoting 5 U.S.C. § 552(b)(8)).
~~323 S. REP. NO. 813, at 10 (1965); accord H.R. REP. NO. 1497, at 11 (1966) (explaining that Exemption 8 “is designed to~~
~~insure the security and integrity of financial institutions, for the sensitive details collected by Government agencies~~
~~which regulate these institutions could, if indiscriminately disclosed, cause great harm”). The D.C. Circuit has written~~
~~that “there was concern that disclosure of examination, operation, and condition reports containing frank evaluations of~~
~~the investigated banks might undermine public confidence and cause unwarranted runs on banks.” Consumers Union of~~
~~U.S., Inc. v. Heimann, 589 F.2d 531, 534 (D.C. Cir. 1978).~~
~~324 Heimann, 589 F.2d at 534. The Heimann court explained that, “[i]f details of the bank examinations were made~~
~~freely available to the public and to banking competitors, there was concern that banks would cooperate less than fully~~
with federal authorities.” Id.
~~Congressional Research Service~~
41

~~link to page 22 link to page 5 link to page 5 link to page 5 link to page 22~~336 Heimann, 589 F.2d at 534. The Heimann court explained that, “[i]f details of the bank examinations were made freely available to the public and to banking competitors, there was concern that banks would cooperate less than fully with federal authorities.” Id. 337 5 U.S.C. § 552(b)(9). 338 PIERCE, JR., supra note 150, at 397 (noting that Exemption 9 “is rarely invoked or interpreted”). See also O’REILLY, supra note 22, § 18:1, at 391 (stating that Exemptions 8 and 9 “are [FOIA’s] most obscure and least utilized” exemptions). Congressional Research Service 41 The Freedom of Information Act (FOIA): A Legal Overview Glomar Responses An agency may use a special response to a request where the fact that a record exists is itself exempt from disclosure—although such a response is not expressly authorized under FOIA’s statutory exemptions. These responses, often delivered in the form of “the agency can neither confirm nor deny” the existence of the requested records, are known as Glomar responses.339 Glomar: Exemptions v. Exclusions A Glomar response must be used in conjunction with one of FOIA’s exemptions.340 Invocation of Glomar is not limited to a particular exemption or particular subject of the requested records.341 Glomar responses are accordingly part of the FOIA exemption process, meaning the relevant records are still subject to FOIA. Exemptions, however, are distinct from FOIA’s exclusions. While a Glomar response may hide the existence of certain records, because Glomar must be invoked in conjunction with a specific exemption, the invocation of a specific exemption may reveal some information about the records sought if they exist. For that reason, FOIA’s exclusions (discussed below) exclude certain records from FOIA altogether.342 Because records subject to an exclusion are not subject to FOIA at all, the agency is not required to respond to a request seeking such records. Thus, although they are similar, the Glomar response serves a distinct function from FOIA’s exclusions. Development of the Glomar Response Executive Order 13,526 permits agencies to “refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors.”343 Over the past half-century, courts have accepted the Glomar response as appropriate in some circumstances. Glomar responses are named after the deep-sea salvage vessel Hughes Glomar Explorer.344 The Hughes Glomar Explorer was built as part of a secret Central Intelligence Agency (CIA) operation called Project Azorian to recover a Soviet submarine (K-129) that sank in the Pacific Ocean in 1968 in 17,000 feet of water.345 Using the cover story that two Howard Hughes–owned companies, Summa Corporation and Global Marine Development, were conducting deep-sea mining, the CIA recovered a portion of the Soviet submarine in 1974.346 Shortly after the recovery operation concluded, the offices of Howard Hughes were burglarized, and documents related to the Glomar Explorer were stolen.347 Months later, in March 1975, newspapers reported that the 339 Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). 340 Wilner v. NSA, 592 F.3d 60, 68 (2d Cir. 2009) (“To properly employ the Glomar response ... an agency must tether its refusal to respond to one of the nine FOIA exemptions.”). 341 Wadhwa v. Sec’y U.S. Dep’t of Veterans Affs., 707 F. App’x 61, 65 (3d Cir. 2017); Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982). 342 See infra Exclusions. 343 Exec. Order No. 13,526, 79 Fed. Reg. 44093 (Jul. 30, 2014). 344 Military Audit Project v. Casey, 656 F.2d 724, 728–29 (D.C. Cir. 1981); see also JOSH DEAN, THE TAKING OF K-129 389 (2017). 345 Phillipi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981). 346 Id.; Military Audit Project, 656 F.2d at 742. 347 The D.C. Circuit described the burglary as “mysterious” explaining that a “handful of armed men overwhelmed a guard and slipped past a sophisticated electronic alarm system, then burned their way into a Hughes safe containing a document describing the project.” Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981). Congressional Research Service 42 The Freedom of Information Act (FOIA): A Legal Overview Glomar Explorer was purportedly owned by the United States government and was involved in a secret recovery operation.348 Following the initial publications, further reports alleged that the CIA attempted to dissuade news media organizations from publishing what they had learned about the Glomar Explorer.349 The activities of the Glomar Explorer and the alleged cover-up interested journalists and government watchdog groups.350 They filed a series of FOIA requests seeking documents related to the Glomar Explorer and the alleged cover-up.351 The CIA responded by claiming that “in the interest of national security, involvement by the U.S. Government in the activities which are the subject matter of your request can neither be confirmed nor denied.”352 Two appeals were filed in the D.C. federal courts challenging the CIA’s use of the Glomar response. During the litigation, however, the Carter Administration publicly acknowledged ownership of the Glomar Explorer, the contract with Hughes’s corporations, and the attempted cover-up.353 The D.C. Circuit, accordingly, did not address the legality of the CIA’s Glomar response in that case, but it has had occasion to do so in subsequent cases.354 In Gardels v. CIA, the D.C. Circuit held that an agency may invoke a Glomar response “where to answer the FOIA inquiry would cause harm cognizable under an FOIA exception.”355 Put differently, “the existence or nonexistence of a record is a fact exempt from disclosure under a FOIA exemption.”356 In Gardels, for example, the CIA refused to confirm or deny whether it had records pertaining to covert contacts for foreign intelligence purposes between the agency and students and professors at the University of California.357 The CIA invoked Exemption 1 and Exemption 3 to support its response.358 The court upheld the CIA’s use of a Glomar response pursuant to Exemption 3 because divulging the existence of records of contacts could reveal intelligence sources and methods, which is prohibited by Section 403(b)(3) of the National 348 Phillipi, 655 F.2d at 1327. 349 Id. 350 Id. 351 Id. 352 Phillipi v. CIA, 556 F.2d 1009, 1012 (D.C. Cir. 1976). Although the CIA’s Glomar response gave rise to the appeal in Phillipi, the appellant in that case did not challenge the CIA’s legal authority to invoke such a response. Id. The appellant confined her appeal to whether the CIA adequately supported its justification for invoking a Glomar response. Id. 353 Military Audit Project v. Casey, 656 F.2d 724, 729 (D.C. Cir. 1981) Questions about the true purpose of the Glomar Explorer still lingered. “Then there is the puzzle of why so many reporters for major newspapers, magazines and TV networks simultaneously stumbled upon the [Glomar Explorer] trail. [S]ome journalists got the feeling that the CIA had actually been helpful all along in getting the story out, while at the same time it apparently tried to suppress the story. The last theory goes off into the wild blue yonder, suggesting that raising a Soviet submarine was not [the Glomar Explorer’s] mission at all, but the supreme cover for a secret mission as yet safely secure.” Espionage: The Great Submarine Snatch, TIME, Mar. 31, 1975, https://content.time.com/time/subscriber/article/0,33009,879453-8,00.html. 354 See Phillipi v. CIA, 556 F.2d 1009 (D.C. Cir. 1976); Phillipi v. CIA, 655 F.2d 1325 (D.C. Cir. 1981); Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981). 355 689 F.2d 1100, 1103 (D.C. Cir. 1982); see also Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). 356 Int’l Counsel Bureau v. CIA, 774 F. Supp. 2d 262, 266 (D.D.C. 2011). 357 Id. 358 Id. Congressional Research Service 43 link to page 5 link to page 5 The Freedom of Information Act (FOIA): A Legal Overview Security Act.359 The D.C. Circuit had found Section 403(d)(3) of the National Security Act to be an Exemption 3 statute.360 Glomar responses are not confined to national security. For example, the Department of Defense issued a policy statement explaining that it would invoke a Glomar response pursuant to Exemption 7 in responding to requests pertaining to investigative material by the name of the person investigated.361 At least one lower court has upheld invocation of Glomar in these circumstances, where revealing the existence of investigatory records would “cause an unwarranted invasion of personal privacy” protected by Exemption 7.362 Exclusions Sometimes, for an agency with enforcement authority, even admitting that a record exists would potentially cause harm to the agency’s investigation or an associated individual. Therefore, in ~~link to page 5~~ ~~The Freedom of Information Act (FOIA): A Legal Overview~~

~~Exemption 9: Geological and Geophysical Information and Data~~
~~Concerning Wells~~
~~Exemption 9 exempts from disclosure “geological and geophysical information and data,~~
~~including maps, concerning wells.”325 Courts have not had many opportunities to interpret this~~
~~exemption, as agencies do not often invoke it.326~~
~~Exclusions~~
In addition to its nine exemptions, FOIA also contains three records exclusions. FOIA’s addition to its nine exemptions, FOIA also contains three records exclusions. FOIA’s
exclusions allow an agency, in response to a request for certain law enforcement records, to “treat exclusions allow an agency, in response to a request for certain law enforcement records, to “treat
the records as not subject to the requirements of” FOIA.the records as not subject to the requirements of” FOIA.~~327~~363 As the As the Attorney General’s
Memorandum on the 1986 Amendments to the Freedom of Information Act explains, when an explains, when an
agency receives a request for records that fall within the coverage of an exclusion, the agency is agency receives a request for records that fall within the coverage of an exclusion, the agency is
authorized to withhold the records and “respond to the request as if the excluded records d[o] not authorized to withhold the records and “respond to the request as if the excluded records d[o] not
exist.”exist.”~~328~~364 FOIA’s exclusions, in other words, allow agencies to “withhold documents without FOIA’s exclusions, in other words, allow agencies to “withhold documents without
comment.”comment.”~~329~~ 365 Conversely, when an agency invokes a FOIA Conversely, when an agency invokes a FOIA exemption in response to a request for in response to a request for
records, it is required to “reveal the fact of and grounds for any withholdings” to the requester.records, it is required to “reveal the fact of and grounds for any withholdings” to the requester.~~330~~
366 FOIA’s exclusions, therefore, are designed to allow agencies to FOIA’s exclusions, therefore, are designed to allow agencies to ~~better avoid disclosure of the~~
~~narrow categories of records to which they apply.331 Each of FOIA’s three exclusions is codified~~
~~at 5 U.S.C. § 552(c).~~

~~325 5 U.S.C. § 552(b)(9).~~
~~326 PIERCE, JR., ET AL., supra note 154, at 397 (noting that Exemption 9 “is rarely invoked or interpreted”). See also 3~~
~~O’REILLY, supra note 25, § 18:1, at 391 (stating that Exemptions 8 and 9 “are [FOIA’s] most obscure and least~~
~~utilized” exemptions).~~
~~327 5 U.S.C. § 552(c)(1)-(3).~~
~~328 Meese Memorandum, supra note 21, at 18.~~
~~329 Labow v. DOJ, 831 F.3d 523, 532 (D.C. Cir. 2016).~~
~~330 Memphis Publ’g Co. v. FBI, 879 F. Supp. 2d 1, 6-7 (D.D.C. 2012); see CREW v. FEC, 711 F.3d 180, 182-83 (D.C.~~
avoid disclosure of the existence of certain records to which the exclusions apply.367 The exclusions are also intended to cover those situations where an agency’s issuance of a Glomar response would be insufficient to protect certain kinds of sensitive records.368 As discussed above, when an agency issues a Glomar 359 Id. at 1105. In finding that disclosing the records would reveal intelligence sources or methods, the court held that it “must according substantial weight to the Agency’s determinations.” Id. at 1104. 360 Id. (citing Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir. 1980)). 361 Memorandum from Will Kammer, Chief, Defense Freedom of Info. Policy Office, U.S. Dep’t of Defense, to Dep’t of Defense Policy Offices on FOIA Policy on Privacy Protection in Investigations, (Feb. 8, 2006), https://open.defense.gov/Portals/23/Documents/FOIA/FOIA_Resources/Memo-Privacy_Protection_in_Investigations.pdf. 362 See Wadhwa v. Sec’y U.S. Dep’t of Veterans Affs., 707 F. App’x 61, 65 (3d Cir. 2017). But see Roth v. DOJ, 642 F.3d 1161, 1183 (D.C. Cir. 2011) (finding that the public interest in shedding light on the conduct of a government agency in investigating and prosecuting a man for murder outweighed any privacy interests in the subjects of the investigation protected by Exemption 7(C)); McMicheal v. DOD, 910 F. Supp. 2d 47, 54–55 (D.D.C. 2012) (finding that the public interest outweighed any privacy interests in an inspector general investigation into allegations of abusive command environment pursuant to Exemption 7(C)). 363 5 U.S.C. § 552(c)(1)–(3). 364 Meese Memorandum, supra note 8, at 18. 365 Labow v. DOJ, 831 F.3d 523, 532 (D.C. Cir. 2016). 366 Memphis Publ’g Co. v. FBI, 879 F. Supp. 2d 1, 6–7 (D.D.C. 2012); see CREW v. FEC, 711 F.3d 180, 182–83 (D.C. Cir. 2013) (Kavanaugh, J.) (holding that, when making an initial “determination” of a FOIA request under 5 U.S.C. Cir. 2013) (Kavanaugh, J.) (holding that, when making an initial “determination” of a FOIA request under 5 U.S.C. § §
552(a)(6)(A)(i), an “agency must at least indicate within the relevant time period the scope of the documents it will 552(a)(6)(A)(i), an “agency must at least indicate within the relevant time period the scope of the documents it will
produce and the exemptions it will claim with respect to any withheld documents”).produce and the exemptions it will claim with respect to any withheld documents”).
~~The exclusions are also intended to cover those situations where an agency’s issuance of a Glomar response to a FOIA~~
~~request implicating records covered by an exclusion could still result in the dangers sought to be prevented by § 552(c).~~
~~See~~ 367 Cf. Meese Memorandum, Meese Memorandum, supra no note ~~21,~~ ~~at 26. As discussed above, when an agency issues a Glomar response, it~~
~~refuses to either confirm or deny whether records exist. See supra note 152. But, as the U.S. Court of Appeals for the~~
~~Sixth Circuit explained, the “standard” Glomar response requires “a public explanation of the exemption that would~~
~~apply if the records existed.” ACLU v. FBI, 734 F.3d 460, 469, 470 (6th Cir. 2013). A Glomar response, therefore, will~~
~~not adequately protect against the types of dangers the exclusions were intended to prevent. DOJ, OFFICE OF INFO.~~
~~POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXCLUSIONS, at 2 (April 4, 2019) [hereinafter DOJ GUIDE,~~
~~EXCLUSIONS], https://www.justice.gov/oip/foia-guide/exclusions/download; see, e.g., Pickard v. DOJ, 653 F.3d 782,~~
~~784 (9th Cir. 2011) (noting, while explaining the procedural background of the case, that in response to the plaintiff’s~~
~~FOIA request, the agency had cited Exemptions 6 and 7(C) and neither confirmed nor denied whether any responsive~~
~~records existed).~~
~~331 Cf. Meese Memorandum, supra note 21, at 26 (writing that, in contrast to the Glomar principle, FOIA’s exclusions~~
~~“afford[] a higher level of protection” to covered records).~~
~~Congressional Research Service~~
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~~link to page 39 link to page 5 link to page 5 link to page 5~~ ~~The Freedom of Information Act (FOIA): A Legal Overview~~

8, at 26 (writing that, in contrast to the Glomar principle, FOIA’s exclusions “afford[] a higher level of protection” to covered records). 368 See id. Congressional Research Service 44 link to page 46 link to page 40 link to page 5 link to page 5 The Freedom of Information Act (FOIA): A Legal Overview response, it refuses to either confirm or deny whether records exist.369 To deploy a Glomar response, the agency must invoke an exemption and provide a public explanation of the exemption that would apply if the records did exist.370 Exclusions, however, serve to remove records from FOIA’s scope entirely. Accordingly, Glomar is less protective than an exclusion, because invoking an exemption in a Glomar response could result in the dangers sought to be prevented by FOIA’s exclusions. Each of FOIA’s three exclusions is codified at 5 U.S.C. § 552(c). Exclusion (c)(1). The first exclusion covers records protected by Exemption 7(A) (i.e., records The first exclusion covers records protected by Exemption 7(A) (i.e., records
~~whose~~for which disclosure “could reasonably be expected to interfere with enforcement proceedings”), disclosure “could reasonably be expected to interfere with enforcement proceedings”),~~332~~
371 but only if but only if
• the relevant law enforcement proceeding or investigation concerns a “possible” the relevant law enforcement proceeding or investigation concerns a “possible”
criminal violation; criminal violation;~~333~~372 and and
• the agency has “reason to believe” both that the agency has “reason to believe” both that
• the pendency of the proceeding or investigation is unknown to the the pendency of the proceeding or investigation is unknown to the
subject of the proceeding or investigation, and subject of the proceeding or investigation, and
• revealing the records’ existence “could reasonably be expected to revealing the records’ existence “could reasonably be expected to
interfere with enforcement proceedings.” interfere with enforcement proceedings.”~~334~~373
The exclusion was intended to prevent an agency from “tipping off” an individual about the The exclusion was intended to prevent an agency from “tipping off” an individual about the
existence of an investigation of which he or she is a subject by stating, in response to a FOIA existence of an investigation of which he or she is a subject by stating, in response to a FOIA
request, that requested records are exempt from disclosure under Exemption 7(A).request, that requested records are exempt from disclosure under Exemption 7(A).~~335~~374 While While
agencies can rely on this exclusion to prevent such an outcome, by its terms, agencies can rely on this exclusion to prevent such an outcome, by its terms, ~~Exclusion~~exclusion (c)(1) is (c)(1) is
only available to an agency while the conditions described in its text continue.only available to an agency while the conditions described in its text continue.~~336~~375 Accordingly, Accordingly,
once the investigation becomes public, this exclusion no longer applies.once the investigation becomes public, this exclusion no longer applies.~~337~~
Exclusion (c)(2). The second exclusion applies to records that are “maintained by a criminal law
~~enforcement agency under an informant’s name or personal identifier.”338 When a third party~~
~~requests such records “according to the informant’s name or personal identifier,” Exclusion~~
~~(c)(2) authorizes the agency to “treat the records as not subject to the requirements of” FOIA.339~~
~~The Attorney General’s memorandum on the 1986 amendments to FOIA describes FOIA’s~~
~~second exclusion as contemplating “the situation in which a sophisticated requester could try to~~
~~ferret out an informant in his organization by forcing a law enforcement agency” to invoke~~
~~FOIA’s exemption for records relating to a confidential source (Exemption 7(D)), an action that~~
~~would likely corroborate the requester’s suspicion that the individual subject to the request is a~~
~~confidential informant.340 The memorandum cites as an example the situation in which a criminal~~

~~332~~376 369 See supra Glomar Responses. 370 ACLU v. FBI, 734 F.3d 460, 469, 470 (6th Cir. 2013); DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXCLUSIONS 2 (June 3, 2022) [hereinafter DOJ GUIDE, EXCLUSIONS], https://www.justice.gov/oip/foia-guide/exclusions/dl?inline; see, e.g., Pickard v. DOJ, 653 F.3d 782, 784 (9th Cir. 2011) (noting, while explaining the procedural background of the case, that in response to the plaintiff’s FOIA request, the agency had cited Exemptions 6 and 7(C) and neither confirmed nor denied whether any responsive records existed). 371 5 U.S.C. § 552(b)(7)(A); see supra 5 U.S.C. § 552(b)(7)(A); see supra “Exemption 7: Law Enforcement Records or Information.”
~~333~~ 372 5 U.S.C. § 552(c)(1)(A). 5 U.S.C. § 552(c)(1)(A).
~~334~~373 Id. § 552(c)(1)(B). § 552(c)(1)(B).
~~335~~374 See Meese Memorandum, Meese Memorandum, supra no note ~~21,~~ 8, at 19 (“To avail itself of Exemption 7(A) .at 19 (“To avail itself of Exemption 7(A) . . .. an agency must routinely . an agency must routinely
specify that it is relying on that exemption—first administratively and then, if sued, in court—even where it is invoking specify that it is relying on that exemption—first administratively and then, if sued, in court—even where it is invoking
the exemption to withhold all responsive records in their entireties. The difficulty is that in those unusual situations in the exemption to withhold all responsive records in their entireties. The difficulty is that in those unusual situations in
which the investigation’s subject is as yet unaware of the investigation’s existence, the agency’s specific reliance on which the investigation’s subject is as yet unaware of the investigation’s existence, the agency’s specific reliance on
Exemption 7(A) can ‘tip off’ the subject and thereby cause harm.”); Exemption 7(A) can ‘tip off’ the subject and thereby cause harm.”); id. at 20 (“The (c)(1) exclusion permits agencies to at 20 (“The (c)(1) exclusion permits agencies to
avoid having to disclose to investigative subjects a sensitive fact (avoid having to disclose to investigative subjects a sensitive fact (i.e., whether there is an investigation ongoing or not) , whether there is an investigation ongoing or not)
that would be disclosed by the mere invocation of Exemption 7(A).”). The Attorney General’s memorandum on the that would be disclosed by the mere invocation of Exemption 7(A).”). The Attorney General’s memorandum on the
1986 FOIA amendments also states in the case of an individual who submits a request for records in an attempt to 1986 FOIA amendments also states in the case of an individual who submits a request for records in an attempt to
determine whether he or she is the subject of an investigation, “[a]n agency response invoking Exemption 7(A) would determine whether he or she is the subject of an investigation, “[a]n agency response invoking Exemption 7(A) would
confirm the existence of an ongoing investigation,” and that “any response that confirm the existence of an ongoing investigation,” and that “any response that did not invoke Exemption 7(A) in Exemption 7(A) in
withholding law enforcement files would tell such a requester that his activities (or perhaps those of some other entity withholding law enforcement files would tell such a requester that his activities (or perhaps those of some other entity
named in the request) have thus far escaped detection.”named in the request) have thus far escaped detection.” Id. at 20 (emphasis added). at 20 (emphasis added).
~~336~~375 5 U.S.C. § 552(c)(1). 5 U.S.C. § 552(c)(1).
~~337~~376 See Meese Memorandum, Meese Memorandum, supra no note ~~21,~~ 8, at 22 (“Once a law enforcement matter reaches a stage at which all at 22 (“Once a law enforcement matter reaches a stage at which all
subjects are aware of its pendency, or at which the agency otherwise determines that the public disclosure of that subjects are aware of its pendency, or at which the agency otherwise determines that the public disclosure of that
pendency no longer could lead to harm, the exclusion should be regarded as no longer applicable.”). pendency no longer could lead to harm, the exclusion should be regarded as no longer applicable.”).
~~338 5 U.S.C. § 552(c)(2).~~
~~339~~ ~~Id.~~
~~340 Meese Memorandum, supra note 21, at 23; see 5 U.S.C. § 552(b)(7)(D). This report discusses Exemption 7(D)~~
Congressional Research Service Congressional Research Service
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link to page link to page 395 link to page 40 link to page 5 link to page 5 link to page link to page 5 link to page 5 link to page 4549 link to page 26 link to page link to page 26 link to page 4549 link to page 5 The Freedom of Information Act (FOIA): A Legal Overview Exclusion (c)(2). The second exclusion applies to records that are “maintained by a criminal law enforcement agency under an informant’s name or personal identifier.”377 When a third party requests such records “according to the informant’s name or personal identifier,” exclusion (c)(2) authorizes the agency to “treat the records as not subject to the requirements of” FOIA.378 The Attorney General’s memorandum on the 1986 amendments to FOIA describes FOIA’s second exclusion as contemplating “the situation in which a sophisticated requester could try to ferret out an informant in his organization by forcing a law enforcement agency” to invoke FOIA’s exemption for records relating to a confidential source (Exemption 7(D)), an action that would likely corroborate the requester’s suspicion that the individual subject to the request is a confidential informant.379 The memorandum cites as an example the situation in which a criminal ~~link to page 5~~ ~~The Freedom of Information Act (FOIA): A Legal Overview~~

organization that suspects one of its members is a criminal informant either requires that the organization that suspects one of its members is a criminal informant either requires that the
suspected informant request law enforcement records about himself or herself, or else compels suspected informant request law enforcement records about himself or herself, or else compels
the individual to submit a privacy waiver to allow a member of the organization to make such a the individual to submit a privacy waiver to allow a member of the organization to make such a
request.request.~~341~~380 Exclusion (c)(2) authorizes law enforcement agencies to protect against the disclosure Exclusion (c)(2) authorizes law enforcement agencies to protect against the disclosure
of the identities of their confidential informants in such situations. of the identities of their confidential informants in such situations. ~~However, like Exclusion~~
Like exclusion (c)(1), an agency’s ability to use the second exclusion is subject to an important limitation: an (c)(1), an agency’s ability to use the second exclusion is subject to an important limitation: an
agency may not use the second exclusion if “the informant’s status as an informant has been agency may not use the second exclusion if “the informant’s status as an informant has been
officially confirmed.”officially confirmed.”~~342~~381
Exclusion (c)(3). FOIA’s third exclusion protects a subset of FBI records concerning “foreign FOIA’s third exclusion protects a subset of FBI records concerning “foreign
intelligence,” “counterintelligence,” or “international terrorism.”intelligence,” “counterintelligence,” or “international terrorism.”~~343~~382 The FBI may treat such The FBI may treat such
records as excluded from FOIA if “the existence of the records is classified information as records as excluded from FOIA if “the existence of the records is classified information as
provided in” Exemption 1.provided in” Exemption 1.~~344~~383 Exclusion (c)(3) seeks to prevent the harm that may occur from an Exclusion (c)(3) seeks to prevent the harm that may occur from an
agencyagency’s publicly claiming the protection of Exemption 1 in response to a request and, therefore, publicly claiming the protection of Exemption 1 in response to a request and, therefore,
admitting that such sensitive records do indeed exist.admitting that such sensitive records do indeed exist.~~345~~384 Like the other exclusions, however, the Like the other exclusions, however, the
third exclusion’s protective ambit is limited—an agency may third exclusion’s protective ambit is limited—an agency may ~~only use Exclusion~~use exclusion (c)(3) (c)(3) only for such for such
time “as the existence of [such] records remains classified information.”time “as the existence of [such] records remains classified information.”~~346~~385
FOIA-Related Litigation: Selected Issues
FOIA not only established a statutory right of access to agency recordsFOIA not only established a statutory right of access to agency records, but also provided a means but also provided a means
for requesters to enforce that right through judicial review of agency decisions to withhold for requesters to enforce that right through judicial review of agency decisions to withhold
~~records.347 Conversely, parties may initiate legal actions to prevent agencies from disclosing~~
~~information requested under FOIA in certain situations. These aspects of FOIA and FOIA-related~~
~~litigation—judicial review of agencies’ withholding decisions and so-called reverse-FOIA~~
~~litigation—are discussed below.~~
~~Judicial Review of Agency Withholding Decisions~~
~~Under 5 U.S.C. § 552(a)(4)(B), federal district courts have “jurisdiction to enjoin [an] agency~~
~~from withholding agency records and to order the production of any agency records improperly~~

377 5 U.S.C. § 552(c)(2). 378 Id. 379 Meese Memorandum, supra note 8, at 23; see 5 U.S.C. § 552(b)(7)(D). This report discusses Exemption 7(D) above. See supra above. See supra “Exemption 7: Law Enforcement Records or Information.”
~~341~~ 380 Meese Memorandum, Meese Memorandum, supra no note 218, at 23 at 23-–24. 24.
~~342~~381 5 U.S.C. § 552(c)(2); 5 U.S.C. § 552(c)(2); see Meese Memorandum, Meese Memorandum, supra no note ~~21,~~ 8, at 24 n.43. For information on judicial treatment of at 24 n.43. For information on judicial treatment of
the “officially confirmed” limitation of Exclusion (c)(2), see DOJ GUIDE, EXCLUSIONS, the “officially confirmed” limitation of Exclusion (c)(2), see DOJ GUIDE, EXCLUSIONS, supra no note ~~330~~370, at 9 at 9-–11.11.
~~343~~382 5 U.S.C. § 552(c)(3). 5 U.S.C. § 552(c)(3).
~~344~~383 Id.; ; see 5 U.S.C. § 552(b)(1). 5 U.S.C. § 552(b)(1). See supra “Exemption 1: National Defense or Foreign Policy.”
~~345~~ 384 DOJ GUIDE, EXCLUSIONS, DOJ GUIDE, EXCLUSIONS, supra nonote ~~330~~370, at 12. at 12.
~~346~~385 5 U.S.C. § 552(c)(3). The Attorney General’s memorandum on the 1986 FOIA amendments states that, while 5 U.S.C. § 552(c)(3). The Attorney General’s memorandum on the 1986 FOIA amendments states that, while
Exclusion (c)(3) explicitly concerns FBI records, “it is conceivable that records derived from such FBI records might Exclusion (c)(3) explicitly concerns FBI records, “it is conceivable that records derived from such FBI records might
be maintained elsewhere, potentially in contexts in which the harm sought to be prevented by this exclusion is no less be maintained elsewhere, potentially in contexts in which the harm sought to be prevented by this exclusion is no less
threatened.” Meese Memorandum, threatened.” Meese Memorandum, supra no note 218, at 25 n.45. For “any such extreme situation,” the memorandum states at 25 n.45. For “any such extreme situation,” the memorandum states
that “it would be appropriate for another agency and the FBI jointly to consider the possible applicability of this that “it would be appropriate for another agency and the FBI jointly to consider the possible applicability of this
exclusion, on a derivative basis, where necessary to avoid an anomalous result.” exclusion, on a derivative basis, where necessary to avoid an anomalous result.” Id.
~~347 FOIA’s judicial review provision was a notable distinction from the APA’s prior public information section. See S.~~
~~REP. NO. 813, at 5 (1965) (listing as one of the problems associated with the APA’s prior information-access section the~~
~~fact that “[t]here is no remedy in case of wrongful withholding of information from citizens by Government officials”).~~
~~While the discussion in this section pertains to the general requirements governing legal challenges to agency~~
~~withholding decisions, FOIA requesters may also challenge other agency FOIA-related actions in federal court.~~ ~~See,~~
~~e.g., 5 U.S.C. § 552(a)(4)(A)(vii) (authorizing “action[s] . . . regarding the waiver of [request processing] fees”).~~
~~Congressional Research Service~~
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~~withheld from the complainant.”348~~Congressional Research Service 46 link to page 21 The Freedom of Information Act (FOIA): A Legal Overview records.386 Conversely, parties may initiate legal actions to prevent agencies from disclosing information requested under FOIA in certain situations. These aspects of FOIA and FOIA-related litigation—judicial review of agencies’ withholding decisions and so-called reverse-FOIA litigation—are discussed below. Judicial Review of Agency Withholding Decisions Under 5 U.S.C. § 552(a)(4)(B), federal district courts have “jurisdiction to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.”387 The Supreme Court, accordingly, has explained that a court The Supreme Court, accordingly, has explained that a court
has jurisdiction under § 552(a)(4)(B) if it can be shown “that an agency has (1) improperly; has jurisdiction under § 552(a)(4)(B) if it can be shown “that an agency has (1) improperly;
(2) (2) withheld; (3) agency records.”388 FOIA instructs courts to review appeals from agency withholding decisions “de novo.”389 Under this standard of review, a court accords no deference to the agency’s decision below.390 That said, courts will sometimes defer to an agency’s judgment in some aspects of FOIA litigation. For example, courts in FOIA disputes generally accord “some measure of deference to the executive in cases implicating national security.”391 The agency has the burden of proving that it properly withheld information under a FOIA exemption.392 To withhold information the agency must point to a specific exemption that permits it to withhold the requested documents. In DOJ v. Tax Analysts, the Supreme Court held that, because FOIA’s exemptions are “exclusive,” agency records are “improperly” withheld when an 386 FOIA’s judicial review provision was a notable distinction from the APA’s prior public information section. See S. REP. NO. 813, at 5 (1965) (listing as one of the problems associated with the APA’s prior information-access section the fact that “[t]here is no remedy in case of wrongful withholding of information from citizens by Government officials”). While the discussion in this section pertains to the general requirements governing legal challenges to agency withholding decisions, FOIA requesters may also challenge other agency FOIA-related actions in federal court. See, e.g., 5 U.S.C. § 552(a)(4)(A)(vii) (authorizing “action[s] ... regarding the waiver of [request processing] fees”). 387~~withheld; (3) agency records.”349 In DOJ v. Tax Analysts, the Court held that, because FOIA’s~~
~~exemptions are “exclusive,” agency records are “improperly” withheld when an agency refuses to~~
~~disclose requested records that are not protected by an applicable exemption.350 Yet the Court has~~
~~also held that an agency’s decision to withhold a record is not “improper” if a court order~~
~~prohibits the agency from disclosing the record.351 Further, in~~ ~~Kissinger v. Reporters Committee~~
~~for Freedom of the Press, the Court held that records are not “withheld” under § 552(a)(4)(B) if,~~
~~before a request was filed, the records were “removed from the possession of the agency.”352 The~~
~~Court did not answer whether an agency “withholds” a record when it “purposefully route[s] a~~
~~document out of agency possession in order to circumvent a FOIA request.”353 However, as one~~
~~court has explained, “an agency’s FOIA obligations might extend to documents that are not in the~~
~~agency’s immediate custody or control . . . when there is evidence to suggest that the requested~~
~~records are outside of the agency's control precisely because the agency has attempted to shield~~
~~its records from search or disclosure under the FOIA.”354~~
~~An improper withholding is not limited to those situations in which an agency explicitly rejects a~~
~~FOIA request or fails to respond to a request. For example, an inadequate search for responsive~~

~~348~~ 5 U.S.C. § 552(a)(4)(B). Venue is available “in the district in which the complainant resides, or has his principal 5 U.S.C. § 552(a)(4)(B). Venue is available “in the district in which the complainant resides, or has his principal
place of business, or in which the agency records are situated, or in the District of Columbia.” place of business, or in which the agency records are situated, or in the District of Columbia.” Id. The U.S. District The U.S. District
Court for the District of Columbia reviews a considerably large number of FOIA lawsuits.Court for the District of Columbia reviews a considerably large number of FOIA lawsuits. See Margaret B. Kwoka, Margaret B. Kwoka, The
Freedom of Information Act Trial, 61 AM. U. L. REV. 217, 261 (2011) (“The District Court for the District of Columbia , 61 AM. U. L. REV. 217, 261 (2011) (“The District Court for the District of Columbia
is the forum for a disproportionate share of FOIA cases, disposing of 38% of all FOIA cases in the country, even is the forum for a disproportionate share of FOIA cases, disposing of 38% of all FOIA cases in the country, even
though it disposes of only 1.3% of all district court litigation.”) (citing FED. JUDICIAL CTR., FEDERAL COURT CASES: though it disposes of only 1.3% of all district court litigation.”) (citing FED. JUDICIAL CTR., FEDERAL COURT CASES:
INTEGRATED DATABASES (1979INTEGRATED DATABASES (1979-–2008)); 2008)); cf. LITIGATION UNDER THE FEDERAL OPEN GOVERNMENT LAWS 325 (Harry A. LITIGATION UNDER THE FEDERAL OPEN GOVERNMENT LAWS 325 (Harry A.
Hammitt et al. eds., 25th ed. 2010) (“Because the vast majority of FOIA lawsuits are filed in the District of Columbia, Hammitt et al. eds., 25th ed. 2010) (“Because the vast majority of FOIA lawsuits are filed in the District of Columbia,
the district court and court of appeals there have developed a substantial body of expertise in FOIA matters that may be the district court and court of appeals there have developed a substantial body of expertise in FOIA matters that may be
lacking in other jurisdictions.”). lacking in other jurisdictions.”).
~~349~~388 See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (internal Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (internal ~~quotation marks and~~
citation omitted). All three elements must be established in order to obtain judicial review of an agency’s withholding citation omitted). All three elements must be established in order to obtain judicial review of an agency’s withholding
decision.decision. Id. at 150; at 150; accord DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989). DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989).
~~350 492 U.S. at 151 (“It follows from the exclusive nature of the § 552(b) exemption scheme that agency records which~~
~~do not fall within one of the exemptions are ‘improperly’ withheld.”).~~
~~351 GTE Sylvania v. Consumers Union of U.S., Inc., 445 U.S. 375, 384, 386-87 (1980) (holding that the Consumer~~
~~Product Safety Commission had not withheld records “improperly” where the agency was enjoined by a federal court~~
~~from disclosing them in unrelated litigation); see Alley v. HHS, 590 F.3d 1195, 1198 (11th Cir. 2009) (“Under the rule~~
~~of GTE Sylvania[], an agency that complies with a court order forbidding disclosure does not violate the FOIA.”). In~~
Tax Analysts, the Court acknowledged that the records at issue in GTE Sylvania had not been covered by any
~~exemptions. 492 U.S. at 154. But while observing that “GTE Sylvania represents a departure from the FOIA’s self-~~
~~contained exemption scheme,” the Court explained that “this departure was a slight one at best, and was necessary in~~
~~order to serve a critical goal independent of FOIA—the enforcement of a court order.” Id. at 155.~~
~~352 445 U.S. at 150. “In such a case,” the Court wrote, “the agency has neither the custody nor control necessary to~~
~~enable it to withhold.” Id. at 150-51. The Court further explained that an agency’s “refusal to resort to legal remedies to~~
~~obtain possession” of documents that were formally within the agency’s control does not constitute a withholding under~~
~~FOIA. Id. at 151; see also Tax Analysts, 492 U.S. at 150 (holding that DOJ “withheld” requested copies of district court~~
~~tax decisions that it had received when it “refused to comply with [the complainant’s] requests,” even though the~~
~~decisions were made publicly available by the issuing court).~~
~~353 Kissinger, 445 U.S. at 155 n.9. The Court also did not decide whether or not an agency “withholding” occurs when~~
an individual “wrongfully remove[s]” a record from an agency after the filing of a request. Id.
~~354 Gawker Media, LLC v. U.S. Dep’t of State, 266 F. Supp. 3d 152, 159 (D.D.C. 2017); cf. Judicial Watch v. U.S.~~
~~Dep’t of State, No. 13-1363, 2016 U.S. Dist. LEXIS 62283, at *10-12 (D.D.C. May 4, 2016).~~
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~~records is also an improper withholding.355 (The requirement that an agency conduct an adequate~~
~~search is discussed above.)356~~
~~FOIA instructs courts to review appeals from agency withholding decisions “de novo.”357 Under~~
~~this standard of review, a court accords no deference to the agency’s decision below.358 That said,~~
~~courts will sometimes defer to an agency’s judgment in some aspects of FOIA litigation. For~~
~~example, courts in FOIA disputes generally accord “some measure of deference to the executive~~
~~in cases implicating national security.”359 The scope and standard of review in FOIA cases may~~
~~differ in other instances, as well.360 For instance, while judicial review of an agency’s decision~~
~~regarding fee waivers is de novo, FOIA states that review “shall be limited to the record before~~
~~the agency.”361~~
~~The agency has the burden of proving that it properly withheld information under a FOIA~~
~~exemption.362~~ 389 5 U.S.C. § 552(a)(4)(B). Judicial review of an agency’s decision to deny a fee waiver is also reviewed under the de novo standard. 5 U.S.C. § 552(a)(4)(A)(vii); see DOJ GUIDE, LITIGATION CONSIDERATIONS, supra note 144, at 28. 390 See Louis v. U.S. Dep’t of Labor, 419 F.3d 970, 977 (9th Cir. 2005). 391 Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 926–27 (D.C. Cir. 2013); id. at 927 (“[B]oth the Supreme Court and this Court have expressly recognized the propriety of deference to the executive in the context of FOIA claims which implicate national security.”); see CIA v. Sims, 471 U.S. 159, 179 (1985) (“Here the Director concluded that disclosure of the institutional affiliations of the MKULTRA researchers could lead to identifying the researchers themselves and thus the disclosure posed an unacceptable risk of revealing protected ‘intelligence sources.’ The decisions of the Director, who must of course be familiar with ‘the whole picture,’ as judges are not, are worthy of great deference given the magnitude of the national security interests and potential risks at stake.”) (footnote omitted). 392 5 U.S.C. § 552(a)(4)(B). Congressional Research Service 47 link to page 18 link to page 21 The Freedom of Information Act (FOIA): A Legal Overview agency refuses to disclose requested records that are not protected by an applicable exemption.393 At the same time, the Court has also held that an agency’s decision to withhold a record is not “improper” if a court order prohibits the agency from disclosing the record.394 Further, in Kissinger v. Reporters Committee for Freedom of the Press, the Court held that records are not “withheld” under § 552(a)(4)(B) if, before a request was filed, the records were “removed from the possession of the agency.”395 The Court did not answer whether an agency “withholds” a record when it “purposefully route[s] a document out of agency possession in order to circumvent a FOIA request.”396 As one court has explained, however, “an agency’s FOIA obligations might extend to documents that are not in the agency’s immediate custody or control ... when there is evidence to suggest that the requested records are outside of the agency’s control precisely because the agency has attempted to shield its records from search or disclosure under the FOIA.”397 An improper withholding is not limited to those situations in which an agency explicitly rejects a FOIA request or fails to respond to a request. An inadequate search for responsive records is also an improper withholding.398 Agencies defending withholding decisions in federal court often supply what is Agencies defending withholding decisions in federal court often supply what is
known as a “known as a “Vaughn Index” to aid in justifying their decisions. Index” to aid in justifying their decisions.~~363~~399 In FOIA lawsuits, the plaintiff In FOIA lawsuits, the plaintiff
generally does not know with any specificity the contents of the requested records, which the generally does not know with any specificity the contents of the requested records, which the
D.C. Circuit has declared can “seriously distort[] the traditional adversary nature of our legal D.C. Circuit has declared can “seriously distort[] the traditional adversary nature of our legal
system’s form of dispute resolution.”system’s form of dispute resolution.”~~364~~400 A A Vaughn Index, which is akin to a privilege log, is a Index, which is akin to a privilege log, is a
response to this informational asymmetry.365 The D.C. Circuit has held that a proper Vaughn
~~Index “provide[s] a relatively detailed justification [for withholdings], specifically identifying the~~
~~reasons why a particular exemption is relevant and correlating those claims with the particular~~
~~part of a withheld document to which they apply.”366 Agencies can also justify nondisclosure~~

~~355 See Lockett v. Wray, 271 F. Supp. 3d 205, 208 (D.D.C. 2017) (“An inadequate search for records constitutes an~~
~~improper withholding under the FOIA.”).~~
~~356 See supra “Request-Driven Disclosure.”~~
~~357 5 U.S.C. § 552(a)(4)(B).~~
~~358 See Louis v. U.S. Dep’t of Labor, 419 F.3d 970, 977 (9th Cir. 2005).~~
~~359 Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 926-27 (D.C. Cir. 2013); id. at 927 (“[B]oth the Supreme Court~~
~~and this Court have expressly recognized the propriety of deference to the executive in the context of FOIA claims~~
~~which implicate national security.”); see CIA v. Sims, 471 U.S. 159, 179 (1985) (“Here the Director concluded that~~
~~disclosure of the institutional affiliations of the MKULTRA researchers could lead to identifying the researchers~~
~~themselves and thus the disclosure posed an unacceptable risk of revealing protected ‘intelligence sources.’ The~~
~~decisions of the Director, who must of course be familiar with ‘the whole picture,’ as judges are not, are worthy of~~
~~great deference given the magnitude of the national security interests and potential risks at stake.”) (footnote omitted).~~
~~360 See DOJ GUIDE, LITIGATION CONSIDERATIONS, supra note 147, at 28.~~
~~361 5 U.S.C. § 552(a)(4)(A)(vii); see DOJ GUIDE, LITIGATION CONSIDERATIONS, supra note 147, at 28.~~
~~362 5 U.S.C. § 552(a)(4)(B).~~
~~363 This process stems from the decision in Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), from which it~~
~~takes its name. See DOJ GUIDE, LITIGATION CONSIDERATIONS, supra note 147~~response to this 393 492 U.S. at 151 (“It follows from the exclusive nature of the § 552(b) exemption scheme that agency records which do not fall within one of the exemptions are ‘improperly’ withheld.”). 394 GTE Sylvania v. Consumers Union of U.S., Inc., 445 U.S. 375, 384, 386–87 (1980) (holding that the Consumer Product Safety Commission had not withheld records “improperly” where the agency was enjoined by a federal court from disclosing them in unrelated litigation); see Alley v. HHS, 590 F.3d 1195, 1198 (11th Cir. 2009) (“Under the rule of GTE Sylvania[], an agency that complies with a court order forbidding disclosure does not violate the FOIA.”). In Tax Analysts, 492 U.S. at 154, the Court acknowledged that the records at issue in GTE Sylvania had not been covered by any exemptions. While observing that “GTE Sylvania represents a departure from the FOIA’s self-contained exemption scheme,” the Court explained that “this departure was a slight one at best, and was necessary in order to serve a critical goal independent of FOIA—the enforcement of a court order.” Id. at 155. 395 445 U.S. at 150. “In such a case,” the Court wrote, “the agency has neither the custody nor control necessary to enable it to withhold.” Id. at 150–51. The Court further explained that an agency’s “refusal to resort to legal remedies to obtain possession” of documents that were formerly within the agency’s control does not constitute a withholding under FOIA. Id. at 151; see also Tax Analysts, 492 U.S. at 149 (holding that DOJ “withheld” requested copies of district court tax decisions that it had received when it “refused to comply with [the complainant’s] requests,” even though the decisions were made publicly available by the issuing court). 396 Kissinger, 445 U.S. at 155 n.9. The Court also did not decide whether an agency “withholding” occurs when an individual “wrongfully remove[s]” a record from an agency after the filing of a request. Id. 397 Gawker Media, LLC v. U.S. Dep’t of State, 266 F. Supp. 3d 152, 159 (D.D.C. 2017); cf. Judicial Watch v. U.S. Dep’t of State, No. 13-1363, 2016 WL 11530536, at *4–6 (D.D.C. May 4, 2016). 398 See Lockett v. Wray, 271 F. Supp. 3d 205, 208 (D.D.C. 2017) (“An inadequate search for records constitutes an improper withholding under the FOIA.”). The requirement that an agency conduct an adequate search is discussed above. See supra Request-Driven Disclosure. 399 This process stems from the decision in Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir. 1973), from which it takes its name. See DOJ GUIDE, LITIGATION CONSIDERATIONS, supra note 144, at 82 (“A distinguishing feature of FOIA at 82 (“A distinguishing feature of FOIA
litigation is that the defendant agency bears the burden of sustaining its action of withholding records. The most litigation is that the defendant agency bears the burden of sustaining its action of withholding records. The most
commonly used device for meeting this burden of proof is the commonly used device for meeting this burden of proof is the Vaughn Index, fashioned by the Court of Appeals for the Index, fashioned by the Court of Appeals for the
District of Columbia Circuit in a case entitled District of Columbia Circuit in a case entitled Vaughn v. Rosen.”) (footnotes omitted); .”) (footnotes omitted); accord Am. Immigration Am. Immigration
Lawyers Ass’n v. Exec. Office for Immigration Rev., 830 F.3d 667, 673 (D.C. Cir. 2016) (“An agency can carry its Lawyers Ass’n v. Exec. Office for Immigration Rev., 830 F.3d 667, 673 (D.C. Cir. 2016) (“An agency can carry its
burden by submitting a burden by submitting a Vaughn index index ~~. . . .~~.... ”). ”).
~~364~~400 King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987 King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987~~) (internal quotation marks omitted~~) (quoting ) (quoting Vaughn, 484 F.2d at , 484 F.2d at
~~825).~~
~~365 Id. Specifically, the D.C. Circuit has explained that the Vaughn Index was intended to “to permit adequate adversary~~
~~testing of the agency’s claimed right to an exemption, and enable the District Court to make a rational decision whether~~
~~the withheld material must be produced without actually viewing the documents themselves, as well as to produce a~~
~~record that will render [its] decision capable of meaningful review on appeal.” Id. at 218-19 (internal quotation marks~~
~~and footnotes omitted).~~
~~366 Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977).~~
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825). Congressional Research Service 48 The Freedom of Information Act (FOIA): A Legal Overview informational asymmetry.401 The D.C. Circuit has held that a proper Vaughn Index provides “a relatively detailed justification [for withholdings], specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.”402 Agencies can also justify nondisclosure decisions through the submission of affidavits of agency officials that, per the D.C. Circuit, decisions through the submission of affidavits of agency officials that, per the D.C. Circuit,
“describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the
information withheld logically falls within the claimed exemption, and are not controverted by information withheld logically falls within the claimed exemption, and are not controverted by
either contrary evidence in the record nor by evidence of agency bad faith.”either contrary evidence in the record nor by evidence of agency bad faith.”~~367~~403
FOIA also authorizes courts to review records FOIA also authorizes courts to review records in camera (i.e., privately and outside of the (i.e., privately and outside of the
plaintiffs’ view) to determine whether the records have been appropriately withheld.plaintiffs’ view) to determine whether the records have been appropriately withheld.~~368~~404 Courts Courts
often conductoften conduct in camera inspection of withheld information when an agency has not “provide[d] inspection of withheld information when an agency has not “provide[d]
a sufficiently detailed explanation to enable the .a sufficiently detailed explanation to enable the . . .. court to make a de novo determination of the . court to make a de novo determination of the
agency’s claims of exemption.”agency’s claims of exemption.”~~369~~405 Courts retain discretion whether to conduct Courts retain discretion whether to conduct in camera reviewreview,
but generally but generally ~~only~~ do so do so only in “exceptional” cases.in “exceptional” cases.~~370~~406 In certain situations, courts may authorize In certain situations, courts may authorize
agencies to submit agencies to submit in camera agency affidavitsagency affidavits~~; however~~. However, as opposed to , as opposed to in camera inspection of inspection of
withheld records, “use of in camera affidavits has generally been disfavored.”withheld records, “use of in camera affidavits has generally been disfavored.”~~371~~407
Reverse-FOIA Litigation
~~While~~Although requesters requesters ~~may~~often seek judicial review of an agency’s decision to withhold information under seek judicial review of an agency’s decision to withhold information under
FOIA, in some circumstances parties may pursue judicial action to FOIA, in some circumstances parties may pursue judicial action to prevent an agency’s disclosure an agency’s disclosure
of information in response to a FOIA request.of information in response to a FOIA request.~~372~~408 These actions are often called reverse- 401 Id. Specifically, the D.C. Circuit has explained that the Vaughn Index was intended to “to permit adequate adversary testing of the agency’s claimed right to an exemption, and enable the District Court to make a rational decision whether the withheld material must be produced without actually viewing the documents themselves, as well as to produce a record that will render [its] decision capable of meaningful review on appeal.” Id. at 218–19 (footnotes omitted). 402 Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). 403 ~~These actions are often called reverse-FOIA~~
~~lawsuits.373 An entity ordinarily institutes a reverse-FOIA action to prevent an agency from~~
~~disclosing sensitive information, often concerning commercial or financial matters, that the entity~~

~~367~~ Am. Immigration Lawyers Ass’n, 830 F.3d at 673 (, 830 F.3d at 673 (~~internal quotation marks and~~ citation omitted); citation omitted); see Dutton v. Dutton v.
DOJ, 302 F. Supp. 3d 109, 121 (D.D.C. 2018) (“[W]hen an agency seeks to withhold information, it must provide a DOJ, 302 F. Supp. 3d 109, 121 (D.D.C. 2018) (“[W]hen an agency seeks to withhold information, it must provide a
relatively detailed justification for the withholding .relatively detailed justification for the withholding . . .. through a . through a Vaughn index, an affidavit, or by other means.” index, an affidavit, or by other means.”
~~(internal quotation marks and~~ (citations omitted) (alteration in original)); citations omitted) (alteration in original)); see also CREW v. DOJ, 746 F.3d 1082, 1088 CREW v. DOJ, 746 F.3d 1082, 1088
(D.C. Cir. 2014) (“Agency affidavits sometimes take the form of a ‘(D.C. Cir. 2014) (“Agency affidavits sometimes take the form of a ‘Vaughn index’ index’ ~~. . . .~~.... ”). ”).
~~368~~404 5 U.S.C. § 552(a)(4)(B) (providing that district courts “may examine the contents of [withheld] agency records in 5 U.S.C. § 552(a)(4)(B) (providing that district courts “may examine the contents of [withheld] agency records in
camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in
subsection (b) of [§ 552]”).subsection (b) of [§ 552]”).
~~369~~405 Spirko v. USPS, 147 F.3d 992, 997 (D.C. Cir. 1998). Spirko v. USPS, 147 F.3d 992, 997 (D.C. Cir. 1998). In camera review may occur in other situations. review may occur in other situations. See id. at 996 at 996
(“[(“[I]]n camera inspection may be particularly appropriate when either the agency affidavits are insufficiently detailed to inspection may be particularly appropriate when either the agency affidavits are insufficiently detailed to
permit meaningful review of exemption claims or there is evidence of bad faith on the part of the agency, when the permit meaningful review of exemption claims or there is evidence of bad faith on the part of the agency, when the
number of withheld documents is relatively small, and when the dispute turns on the contents of the withheld number of withheld documents is relatively small, and when the dispute turns on the contents of the withheld
documents, and not the parties’ interpretations of those documents.”) (citation documents, and not the parties’ interpretations of those documents.”) (citation ~~and internal quotation marks~~ omitted). omitted).
~~370~~406 See NLRB v. Robbins Tire & Rubber, 437 U.S. 214, 224 (1978) (“The NLRB v. Robbins Tire & Rubber, 437 U.S. 214, 224 (1978) (“The in camera review provision is discretionary review provision is discretionary
by its terms, and is designed to be invoked when the issue before the District Court could not be resolved.”); Elec. by its terms, and is designed to be invoked when the issue before the District Court could not be resolved.”); Elec.
Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d 100, 119 (D.D.C. 2005) (“[C]ourts disfavor Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d 100, 119 (D.D.C. 2005) (“[C]ourts disfavor in camera inspection and it is inspection and it is
more appropriate in only the exceptional case.”). more appropriate in only the exceptional case.”).
~~371~~407 Armstrong v. EOP, 97 F.3d 575, 580 (D.C. Cir. 1996). Armstrong v. EOP, 97 F.3d 575, 580 (D.C. Cir. 1996).
~~372~~408 Paul R. Verkuil, Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 44 WM. & MARY L. REV. 679, 717 (2002). , 44 WM. & MARY L. REV. 679, 717 (2002).
Reverse-FOIA suits ordinarily arise after an agency informs a party that the agency has received a request for the Reverse-FOIA suits ordinarily arise after an agency informs a party that the agency has received a request for the
records at issue or that it has decided to release such records in response to a request. records at issue or that it has decided to release such records in response to a request. See, e.g., Chrysler Corp. v. , Chrysler Corp. v.
Brown, 441 U.S. 281, 287 (1979) (explaining that the lawsuit “began .Brown, 441 U.S. 281, 287 (1979) (explaining that the lawsuit “began . . .. when the [agency] informed Chrysler that . when the [agency] informed Chrysler that
third parties had made an FOIA request for disclosure of the [records at issue]”); Nat’l Bus. Aviation Ass’n v. FAA, third parties had made an FOIA request for disclosure of the [records at issue]”); Nat’l Bus. Aviation Ass’n v. FAA,
686 F. Supp. 2d 80, 83686 F. Supp. 2d 80, 83-–84 (D.D.C. 2010) (“The [Federal Aviation Administration (FAA)] contacted the [plaintiff] by 84 (D.D.C. 2010) (“The [Federal Aviation Administration (FAA)] contacted the [plaintiff] by
~~telephone and advised that the FAA had made an initial determination that the [material at issue] was releasable in~~
~~response to [a FOIA] request. The FAA asked for input from the [plaintiff] before making a final decision. The~~
~~[plaintiff] objected to the proposed release on the basis of FOIA Exemption 4. Subsequently, the FAA determined that~~
~~the [material] was not protected from disclosure under Exemption 4 because it was not a trade secret or commercial or~~
~~financial information. . . . . After receiving [FAA’s explanation], the [plaintiff] filed this suit seeking to enjoin the~~
~~FAA’s release of the [material] . . . .”) (citations omitted).~~
373 Chrysler~~, 441 U.S. at 285.~~(continued...)
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FOIA lawsuits.409 An entity ordinarily institutes a reverse-FOIA action to prevent an agency from disclosing sensitive information, often concerning commercial or financial matters, that the entity had previously submitted to the agency.had previously submitted to the agency.~~374~~410 In In Chrysler Corporation v. Brown, the Supreme Court , the Supreme Court
held that neither held that neither ~~the FOIA statute~~FOIA nor the TSA authorizes a private right of action to enjoin an nor the TSA authorizes a private right of action to enjoin an
agency from disclosing information in violation of the TSA.agency from disclosing information in violation of the TSA.~~375 However, the Court held~~411 The Court held, however, that that
judicial review of such actions is available under the APA.judicial review of such actions is available under the APA.~~376~~412 In reverse-FOIA suits, courts In reverse-FOIA suits, courts
generally review an agency’s decision to disclose information under § 706(2)(A) of the APA, generally review an agency’s decision to disclose information under § 706(2)(A) of the APA,
which provides that courts are to “hold unlawful and set aside agency action, findings, and which provides that courts are to “hold unlawful and set aside agency action, findings, and
conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.”with law.”~~377~~413 The burden of proof in a reverse-FOIA action is on the plaintiff The burden of proof in a reverse-FOIA action is on the plaintiff~~.378~~ (i.e., the party attempting to prevent the agency from disclosing information).414
Under Executive Order Under Executive Order ~~12600~~12,600, an agency is required, in certain circumstances, to provide notice , an agency is required, in certain circumstances, to provide notice
to those who submitted “records containing confidential commercial information” if the agency to those who submitted “records containing confidential commercial information” if the agency
has concluded that the records may need to be disclosed in response to a FOIA request.has concluded that the records may need to be disclosed in response to a FOIA request.~~379~~415 Agency Agency
procedures generally must allow applicable submitters to object to disclosure and provide that the procedures generally must allow applicable submitters to object to disclosure and provide that the
agency, in the event it disagrees with the submitter’s objection, supply the submitter with the agency, in the event it disagrees with the submitter’s objection, supply the submitter with the
reasons for its disagreement.reasons for its disagreement.~~380~~416 The executive order defines “confidential commercial The executive order defines “confidential commercial
information” as information submitted to an agency “that arguably contain[s] material exempt information” as information submitted to an agency “that arguably contain[s] material exempt
from release under Exemption 4 .from release under Exemption 4 . . .. because disclosure could reasonably be expected to cause . because disclosure could reasonably be expected to cause
substantial competitive harm.”substantial competitive harm.”~~381~~417 Notably, Notably,~~382~~418 the Supreme Court abrogated the “substantial the Supreme Court abrogated the “substantial
competitive harm” test for Exemption 4 in competitive harm” test for Exemption 4 in FMI v. Argus Leader Media..~~383~~419 In response, DOJ has In response, DOJ has
advised agencies to use the broader definition of “confidential” declared in advised agencies to use the broader definition of “confidential” declared in FMI in their in their
predisclosure notification procedures.predisclosure notification procedures.~~384~~

~~374 CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1133~~420 telephone and advised that the FAA had made an initial determination that the [material at issue] was releasable in response to [a FOIA] request. The FAA asked for input from the [plaintiff] before making a final decision. The [plaintiff] objected to the proposed release on the basis of FOIA Exemption 4. Subsequently, the FAA determined that the [material] was not protected from disclosure under Exemption 4 because it was not a trade secret or commercial or financial information..... After receiving [FAA’s explanation], the [plaintiff] filed this suit seeking to enjoin the FAA’s release of the [material].... ”) (citations omitted). 409 Chrysler, 441 U.S. at 285. 410 CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1134 n.1 (D.C. Cir. 1987) (explaining that, in a reverse-FOIA suit, n.1 (D.C. Cir. 1987) (explaining that, in a reverse-FOIA suit,
“[t]ypically, a submitter of information—usually a corporation or other business entity required to report various and “[t]ypically, a submitter of information—usually a corporation or other business entity required to report various and
sundry data on its policies, operations, or products—seeks to prevent the agency that collected the information from sundry data on its policies, operations, or products—seeks to prevent the agency that collected the information from
revealing it to a third party in response to the latter’s FOIA request”). revealing it to a third party in response to the latter’s FOIA request”).
~~375~~411 Chrysler, 441 U.S. at 294, 316, 441 U.S. at 294, 316-–17. The TSA is a criminal statute that prohibits the unlawful disclosure of a variety 17. The TSA is a criminal statute that prohibits the unlawful disclosure of a variety
of commercial and financial information. of commercial and financial information. See 18 U.S.C. § 1905. 18 U.S.C. § 1905. ~~But the~~The statute allows disclosure of covered statute allows disclosure of covered
information when disclosure is “authorized by law.” information when disclosure is “authorized by law.” Id.
~~376~~412 Chrysler, 441 U.S., 441 U.S. at 317at 317-–18. 18.
~~377~~413 5 U.S.C. § 706(2)(A); 5 U.S.C. § 706(2)(A); see CNA, 830 F.2d at 1162; , 830 F.2d at 1162; Chrysler, 441 U.S. at 318. Review under this standard is more , 441 U.S. at 318. Review under this standard is more
deferential to the agency than is the deferential to the agency than is the de novo review of agency withholding decisions required by FOIA. review of agency withholding decisions required by FOIA. See supra
“Judicial Review of Agency Withholding Decisions.” In In Chrysler, 441 U.S. at 318, the Court explained that “any disclosure that , the Court explained that “any disclosure that
violates [the TSA] is ‘not in accordance with law’ within the meaning of 5 U.S.C. § 706(2)(A).” violates [the TSA] is ‘not in accordance with law’ within the meaning of 5 U.S.C. § 706(2)(A).” ~~441 U.S. at 318.~~
~~378~~414 See AAR Airlift Grp., Inc. v. U.S. Transp. Command, 161 F. Supp. 3d 37, 43 (D.D.C. 2015). AAR Airlift Grp., Inc. v. U.S. Transp. Command, 161 F. Supp. 3d 37, 43 (D.D.C. 2015).
~~379~~415 Exec. Order No. 12,600 §§ 1, 3 (Jan. 1, 1987). Exec. Order No. 12,600 §§ 1, 3 (Jan. 1, 1987).
~~380~~416 Id. §§ 5, 6. §§ 5, 6.
~~381~~417 Id. § 2(a). § 2(a).
~~382~~418 See supra “Exemption 4: Trade Secrets and Commercial or Financial Information.”
~~383~~ 419 139 S. Ct. 2356, 2363 139 S. Ct. 2356, 2363-–66 (2019). 66 (2019).
~~384~~420 See DOJ, Office of Info. Pol’y, DOJ, Office of Info. Pol’y, Exemption 4 After the Supreme Court’s Ruling in Food Marketing Institute v. Argus Food Marketing Institute v. Argus
~~Leader Media (last updated Oct. 4, 2019), https://www.justice.gov/oip/exemption-4-after-supreme-courts-ruling-food-~~
~~marketing-institute-v-argus-leader-media (“Many agency predisclosure notification regulations have followed the~~
~~model provided by [DOJ], which defines the term ‘confidential commercial information’ more broadly, without~~
~~reference to competitive harm, and instead refers more generically to material that may be protected under Exemption~~
~~4. In the wake of Argus Leader, agencies should now use those predisclosure notification procedures when necessary to~~
~~seek the submitter’s views on whether the two conditions [stemming from the Court’s decision, see supra text~~
~~accompanying notes 225] that agencies should consider in determining whether information is ‘confidential’ for~~
~~purposes of Exemption 4 of the FOIA . . . are met.”).~~(continued...)
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Selected Issues of Potential Interest for Congress
While Congress is not subject to FOIA, the act raises questions of particular relevance to the While Congress is not subject to FOIA, the act raises questions of particular relevance to the
legislative branch. For example, per the act, an agency may not “withhold information from legislative branch. For example, per the act, an agency may not “withhold information from
Congress” on the basis that such information is exempt under FOIA.Congress” on the basis that such information is exempt under FOIA.~~385~~421 There are different views, There are different views,
however, about what “Congress” means in this instance—in particular, whether this withholding however, about what “Congress” means in this instance—in particular, whether this withholding
prohibition applies to requests from individual Members of Congressprohibition applies to requests from individual Members of Congress, or whether the provision is or whether the provision is
limited to access requests from each house of Congress or congressional committees. In addition, limited to access requests from each house of Congress or congressional committees. In addition,
although Congress is under no obligation to disclose its own materials under FOIA, whether a although Congress is under no obligation to disclose its own materials under FOIA, whether a
congressional document possessed by an congressional document possessed by an agency is subject to FOIA depends on whether is subject to FOIA depends on whether ~~or not~~
Congress clearly expressed its determination to retain control over the document.Congress clearly expressed its determination to retain control over the document.~~386~~422
Although this section Although this section ~~only discusses~~discusses only the two topics just mentioned, FOIA implicates the two topics just mentioned, FOIA implicates
congressional interests in many other ways. For example, Congress has often expressed its congressional interests in many other ways. For example, Congress has often expressed its
interest in the frequency with which agencies use exemptions to withhold information from interest in the frequency with which agencies use exemptions to withhold information from
requesters, as well as the general backlog of FOIA requests.requesters, as well as the general backlog of FOIA requests.~~387~~423 Further, FOIA evidences Further, FOIA evidences
Congress’s general interest in executive branch transparency, and Congress has amended FOIA Congress’s general interest in executive branch transparency, and Congress has amended FOIA
several times since its 1965 enactment, often due or in response to judicial interpretations of the several times since its 1965 enactment, often due or in response to judicial interpretations of the
act or agencies’ administration thereof.act or agencies’ administration thereof.~~388~~424
Congressional Access to Agency Information: FOIA’s “Special
Access” Provision
FOIA’s “special access”FOIA’s “special access”~~389~~425 provision—codified at 5 U.S.C. § 552(d)—states that FOIA “is not provision—codified at 5 U.S.C. § 552(d)—states that FOIA “is not
authority to withhold information from Congress.”authority to withhold information from Congress.”~~390~~426 The Senate report The Senate report ~~underlying~~accompanying the original the original
act explained that this provision is intended to clarify “that, because [FOIA] only refers act explained that this provision is intended to clarify “that, because [FOIA] only refers ~~to the~~
~~public’s right to know, it cannot . . . be backhandedly construed as authorizing the withholding of~~
~~information from the Congress, the collective representative of the public.”391 While this~~
~~provision undoubtedly prohibits agencies from withholding information from Congress based on~~
~~a FOIA exemption, there is some dispute over whether subsection (d) affords individual Members~~

~~385 5 U.S.C. § 552(d).~~
~~386 ACLU v. CIA, 823 F.3d 655, 662-63 (D.C. Cir. 2016).~~
~~387 See S. REP. NO. 4, at 2-3 (2015).~~
388 See, e.g., id. ~~at 2, 7-~~ Leader Media (last updated Oct. 4, 2019), https://www.justice.gov/oip/exemption-4-after-supreme-courts-ruling-food-marketing-institute-v-argus-leader-media (“Many agency predisclosure notification regulations have followed the model provided by [DOJ], which defines the term ‘confidential commercial information’ more broadly, without reference to competitive harm, and instead refers more generically to material that may be protected under Exemption 4. In the wake of Argus Leader, agencies should now use those predisclosure notification procedures when necessary to seek the submitter’s views on whether the two conditions [stemming from the Court’s decision, see supra text accompanying note 225] that agencies should consider in determining whether information is ‘confidential’ for purposes of Exemption 4 of the FOIA ... are met.”). 421 5 U.S.C. § 552(d). 422 ACLU v. CIA, 823 F.3d 655, 662–63 (D.C. Cir. 2016). 423 See S. REP. NO. 4, at 2–3 (2015). 424 See, e.g., id. at 2, 7–8 (explaining that “there are concerns that some agencies are overusing FOIA exemptions that 8 (explaining that “there are concerns that some agencies are overusing FOIA exemptions that
allow, but do not require, information to be withheld from disclosure” and that the 2016 amendments to FOIA codified allow, but do not require, information to be withheld from disclosure” and that the 2016 amendments to FOIA codified
“[t]he standard .“[t]he standard . . .. that an agency may withhold information only if it . that an agency may withhold information only if it reasonably foresees a specific identifiable harm
to an interest protected by an exemption, or if disclosure is prohibited by law”); H.R. REP. NO. 1441, at 14 (1976) ”); H.R. REP. NO. 1441, at 14 (1976)
(Conf. Rep.) (writing that “[t]he conferees intend [the 1976 amendments to Exemption 3] to overrule the decision of the (Conf. Rep.) (writing that “[t]he conferees intend [the 1976 amendments to Exemption 3] to overrule the decision of the
Supreme Court in Supreme Court in Administrator, FAA v. v. Robertson, 422 U.S. 255 (1975)”); S. REP. NO. 1200, at 9 (1974) (Conf. Rep.) , 422 U.S. 255 (1975)”); S. REP. NO. 1200, at 9 (1974) (Conf. Rep.)
(explaining that, “[i]n (explaining that, “[i]n Environmental Protection Agency v. v. Mink, et al., 410 U.S. 73 (1973), the Supreme Court ruled , et al., 410 U.S. 73 (1973), the Supreme Court ruled
that that in camera inspection of documents withheld under section 552(b) (1) of the law, authorizing the withholding of inspection of documents withheld under section 552(b) (1) of the law, authorizing the withholding of
classified information, would ordinarily be precluded in [FOIA] cases, unless Congress directed otherwise,” and that classified information, would ordinarily be precluded in [FOIA] cases, unless Congress directed otherwise,” and that
the 1974 amendments to FOIA “amend[] the present law to permit such the 1974 amendments to FOIA “amend[] the present law to permit such in camera examination at the discretion of the examination at the discretion of the
court”). court”).
~~389~~425 See DOJ, Office of Info. Pol’y, DOJ, Office of Info. Pol’y, Congressional Access Under FOIA, 5 FOIA UPDATE 1 (Jan. 1, 1984) [hereinafter , 5 FOIA UPDATE 1 (Jan. 1, 1984) [hereinafter
Congressional Access Under FOIA], https://www.justice.gov/oip/blog/foia-update-oip-guidance-congressional-access-], https://www.justice.gov/oip/blog/foia-update-oip-guidance-congressional-access-
under-foia. under-foia.
~~390~~426 5 U.S.C. § 552(d 5 U.S.C. § 552(d).
~~391 S. REP. NO. 813, at 10 (1965~~). ).
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to the public’s right to know, it cannot ... be backhandedly construed as authorizing the withholding of information from the Congress, the collective representative of the public.”427 Although this provision undoubtedly prohibits agencies from withholding information from Congress based on a FOIA exemption, there is some dispute over whether subsection (d) affords individual Members of Congress access to otherwise exempt records under FOIAof Congress access to otherwise exempt records under FOIA, or, on the other hand, whether the or, on the other hand, whether the
provision is limited to access requests from provision is limited to access requests from ~~the broader arms of Congress (i.e.,~~ either house of either house of
Congress and congressional committeesCongress and congressional committees~~).392~~
~~The Department of Justice~~.428 DOJ has long maintained that the special access provision does not has long maintained that the special access provision does not
generally apply to records requests from individual Members of Congressgenerally apply to records requests from individual Members of Congress~~, meaning that agencies~~
~~generally can invoke relevant exemptions to withhold materials in response to individual Member~~
~~requests.393~~. In 1984, DOJ issued an opinion explaining its position on FOIA’s special access provision. In the opinion, DOJ distinguishes between requests for information from (1) “a House of Congress as DOJ distinguishes between requests for information from (1) “a House of Congress as
a whole (including through its committee structure)” and (2) individual Members.a whole (including through its committee structure)” and (2) individual Members.~~394~~429 In DOJ’s In DOJ’s
~~view, requests from the former benefit from subsection (d)’s withholding prohibition; however,~~
~~requests from the latter generally do not, no matter—as DOJ has explained—~~view, an agency cannot invoke a FOIA exemption to requests from a house of Congress or a committee. Requests from individual Members of Congress, however, are subject to FOIA’s exemptions even if the individual if the individual
Member is “clearly acting in a completely official capacity” in making the request.Member is “clearly acting in a completely official capacity” in making the request.~~395 Under~~
~~DOJ’s interpretation, a~~430 A request by an individual Member in his or her official capacity is request by an individual Member in his or her official capacity is ~~only~~
covered by the special access provision covered by the special access provision only if the request is from the chair of a committee or if the request is from the chair of a committee or
subcommittee or authorized by a committee or subcommittee or authorized by a committee or subcommittee.431 DOJ’s interpretation stems from its view that to treat individual Member requests the same as requests from a house of Congress or a committee violates FOIA’s text and legislative history.432 DOJ has argued, for example, that interpreting “Congress” as it is used in the special access provision—i.e., to include individual Members—conflicts with Article I, § 1 of the Constitution, which provides that Congress “consist[s] of a Senate and a House of Representatives” but does not mention the individuals who serve in those chambers.433 Moreover, DOJ has argued that individual Members do not exercise Congress’s constitutional investigatory powers.434 Under the Constitution, Congress has inherent power to gather information in aid of its legislative functions and compel the disclosure of that information if necessary.435 According to DOJ, however, Congress has not typically delegated its investigatory authority to individual Members who are 427 S. REP. NO. 813, at 10 (1965). 428~~subcommittee.396 That said, individual Members~~
~~of Congress can submit FOIA requests to the same extent as other persons.397~~
~~But DOJ’s interpretation of the special access provision has been criticized by some as too~~
~~narrow. This criticism finds support in language from the D.C. Circuit’s decision in~~ ~~Murphy v.~~
~~Department of the Army,398 which interpreted the special access provision as applying to~~
~~individual Members acting in their official capacities.399 The court held that the Army had not~~
~~waived Exemption 5 protection for an internal agency memorandum by sharing it with an~~
~~individual Member of Congress.400 The court based its holding on an interpretation of the special~~
~~access provision, concluding that agencies will not waive the exemption in such circumstances~~
~~“to the extent that Congress has reserved to itself in section 552([d]) the right to receive~~
~~information not available to the general public.”401 In responding to the requester’s argument that~~
~~the special access provision was limited to Congress as a whole (and not its component parts—~~
~~including individual Members), the court wrote~~

~~392~~ While the special access provision may prohibit application of a FOIA exemption to prevent disclosure to Congress, While the special access provision may prohibit application of a FOIA exemption to prevent disclosure to Congress,
it does not govern whether another source of law, such as executive privilege, may protect information from disclosure. it does not govern whether another source of law, such as executive privilege, may protect information from disclosure.
Congressional Access Under FOIA, , supra no note ~~389~~425. 429 Id. 430 Id. 431 Id.; see.
393 See id.
394 Id.
395 Id.
396 Id. See also Authority of Individual Members of Congress to Conduct Oversight of the Authority of Individual Members of Congress to Conduct Oversight of the ~~Executive~~Exec. Branch, 41 Op. Branch, 41 Op.
O.L.C. 1, 1 (2017) (opining that “the constitutional authority to conduct oversight .O.L.C. 1, 1 (2017) (opining that “the constitutional authority to conduct oversight . . .. may be exercised only be each . may be exercised only be each
house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen)” and that house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen)” and that
“[i]ndividual members of Congress .“[i]ndividual members of Congress . . .. do not have the authority to conduct oversight in the absence of a specific . do not have the authority to conduct oversight in the absence of a specific
delegation by a full house, committee, or subcommittee”); delegation by a full house, committee, or subcommittee”); id. at 3 (asserting that “[i]ndividual members who have not at 3 (asserting that “[i]ndividual members who have not
been authorized to conduct oversight are entitled to no more than the voluntary cooperation of agency officials or been authorized to conduct oversight are entitled to no more than the voluntary cooperation of agency officials or
private persons”) (internal private persons”) (internal ~~quotation marks and~~ citation omitted). citation omitted).
~~397~~ 432 See Congressional Access Under FOIA, supra note 425; U.S. DOJ, Office of Info. Pol’y, Release of Exempt Information to Members of Congress: The Impact of the Murphy Decision, 1 FOIA UPDATE 4 (Jan. 1, 1980) [hereinafter Release of Exempt Information to Members of Congress], https://www.justice.gov/oip/blog/foia-update-policy-guidance-release-exempt-information-members-congress-impact-murphy. 433 U.S. CONST. art. I, § 1; Release of Exempt Information to Members of Congress, infra note 431. 434 Authority of Individual Members of Congress to Conduct Oversight of the Exec. Branch, 41 Op. O.L.C. 1, 2 (2017). 435 Id. at 1 (citing McGrain v. Daugherty, 273 U.S. 135, 174 (1927)). Congressional Research Service 52 link to page 55 link to page 55 link to page 56 The Freedom of Information Act (FOIA): A Legal Overview not committee chairs.436 DOJ thus claims that individual Members who are not committee chairs do not fall within the meaning of “Congress” in FOIA’s special access provision because they are not authorized to wield Congress’s constitutional oversight authority.437 DOJ also asserts that its position finds support in the 1966 House report for FOIA.438 In discussing the special access provision, the report states that “Members of Congress have all of the rights of access guaranteed to ‘any person’ by [FOIA], and the Congress has additional rights of access to all Government information which it deems necessary to carry out its functions.”439 DOJ’s interpretation of the special access provision was in response to the D.C. Circuit’s decision in Murphy v. Department of the Army,440 which interpreted the provision as applying to individual Members acting in their official capacities.441 The court held that the Army had not waived Exemption 5 protection for an internal agency memorandum by sharing it with an individual Member of Congress.442 The court based its holding on an interpretation of the special access provision, concluding that agencies will not waive the exemption in such circumstances “to the extent that Congress has reserved to itself in Section 552([d]) the right to receive information not available to the general public.”443 In responding to the requester’s argument that the special access provision was limited to Congress as a whole (and not its component parts—including individual Members), the court wrote: All Members have a constitutionally recognized status See H.R. REP. NO. 1497, at 11-12 (1966).
~~398 613 F.2d 1151 (D.C. Cir. 1979).~~
~~399 See All Party Parliamentary Grp. on Extraordinary Rendition v. DOD, 754 F.3d 1047, 1052 (D.C. Cir. 2014)~~
~~(explaining that Murphy, 613 F.2d at 1157, interpreted the special access provision “as requiring agencies to distinguish~~
~~between requests made by members of Congress in their official capacities and those made in their individual~~
~~capacities”).~~
~~400 See Murphy, 613 F.2d at 1154, 1159.~~
~~401 Id. at 1156.~~
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~~All Members have a constitutionally recognized status~~ entitling them to share in general entitling them to share in general
congressional powers and responsibilities, many of them requiring access to executive congressional powers and responsibilities, many of them requiring access to executive
information. It would be an inappropriate intrusion into the legislative sphere for the courts information. It would be an inappropriate intrusion into the legislative sphere for the courts
to decide without congressional direction that, for example, only the chairman of a to decide without congressional direction that, for example, only the chairman of a
committee shall be regarded as the official voice of the Congress for purposes of receiving committee shall be regarded as the official voice of the Congress for purposes of receiving
such information, as distinguished from its ranking minority member, other committee such information, as distinguished from its ranking minority member, other committee
members, or other members of the Congress. Each of them participates in the law-making members, or other members of the Congress. Each of them participates in the law-making
process; each has a voice and a vote in that process; and each is entitled to request such process; each has a voice and a vote in that process; and each is entitled to request such
information from the executive agencies as will enable him to carry out the responsibilities information from the executive agencies as will enable him to carry out the responsibilities
of a legislator.of a legislator.~~402~~444
Instead, the court opined that the special access rule applies when a Member’s request is made in Instead, the court opined that the special access rule applies when a Member’s request is made in
his or her official—as opposed to “purely private or personal”—capacity.his or her official—as opposed to “purely private or personal”—capacity.~~403 Members of~~
~~Congress from both major political parties have cited Murphy in support of individual Members’~~
~~right to access information from the executive branch.404~~
~~DOJ’s more narrow interpretation, discussed above, was a reaction to Murphy’s reading of~~
~~FOIA’s application to Members, which it views as being inconsistent with the act’s text and~~
~~legislative history.405 DOJ has argued, for example, that interpreting “Congress” to include~~
~~individual Members conflicts with Article I, § 1 of the Constitution, which provides that Congress~~
~~“consist[s] of a Senate and a House of Representatives,” but does not mention the individuals~~
~~who serve in those chambers.406 DOJ also asserts its position finds support in the 1966 House~~
~~report for FOIA. In discussing the special access provision, the report states that “Members of~~
~~Congress have all of the rights of access guaranteed to ‘any person’ by [FOIA], and the Congress~~
~~has additional rights of access to all Government information which it deems necessary to carry~~
~~out its functions.”407 DOJ has also maintained that the D.C. Circuit’s discussion of FOIA’s~~
~~application to individual Members “was not indispensable to the [Murphy] decision” and~~
~~therefore does not constitute a binding rule.408 But while~~445 DOJ has maintained that the D.C. Circuit’s discussion of FOIA’s application to individual Members “was not indispensable to the [Murphy] decision” and therefore does not constitute a binding rule.446 More recently, DOJ has contended that the executive branch’s treatment of 436 Id. at 2. 437 Id. at 3. 438 Congressional Access Under FOIA, supra note 425 (citing H.R. Rep. No. 1497, 89th Cong., 2d Sess. 11–12 (1966)). 439 H.R. REP. NO. 1497, at 11–12 (1966) (emphasis added); Congressional Access Under FOIA, supra note 425. 440 613 F.2d 1151 (D.C. Cir. 1979). 441 See All Party Parliamentary Grp. on Extraordinary Rendition v. DOD, 754 F.3d 1047, 1052 (D.C. Cir. 2014) (explaining that Murphy, 613 F.2d at 1157, interpreted the special access provision “as requiring agencies to distinguish between requests made by members of Congress in their official capacities and those made in their individual capacities”). 442 See Murphy, 613 F.2d at 1154, 1159. 443 Id. at 1156. 444 Id. at 1157. 445 Id. 446 Release of Exempt Information to Members of Congress, infra note 431. Congressional Research Service 53 The Freedom of Information Act (FOIA): A Legal Overview requests from individual Members is “consistent” with Murphy.447 DOJ asserts that although Murphy found that FOIA does not limit the flow of information between federal agencies and individual Members, that point does not undercut DOJ’s constitutional argument that individual Members do not typically exercise Congress’s oversight authority.448 While the D.C. Circuit has not had opportunity the D.C. Circuit has not had opportunity
to revisit to revisit Murphy on the question of FOIA’s application to agency communications with on the question of FOIA’s application to agency communications with
individual Members, later appellate panel and lower court decisions within the circuit have individual Members, later appellate panel and lower court decisions within the circuit have
appeared to treat appeared to treat Murphy’s interpretation as controlling.’s interpretation as controlling.~~409~~

~~402 Id. at 1157.~~
~~403~~ ~~Id.~~
~~404 See, e.g., Letter to Gary M. Stern, Gen’l Counsel, Nat’l Archives & Rec. Admin., from Senators Richard~~
~~Blumenthal, Dianne Feinstein, Patrick Leahy, Richard J. Durbin, Sheldon Whitehouse, Amy Klobuchar, Christopher A.~~
~~Coons, Mazie K. Hirono, Cory A. Booker, and Kamala D. Harris (Aug. 8, 2018); 163 CONG. REC. S4077, S4078 (daily~~
~~ed. July 19, 2017) (Senator Charles E. Grassley).~~
~~405 See Congressional Access Under FOIA, supra note 389; DOJ, Office of Info. Pol’y,~~ ~~Release of Exempt Information~~
~~to Members of Congress: The Impact of the~~ ~~Murphy Decision, 1 FOIA UPDATE 4 (Jan. 1, 1980) [hereinafter~~ ~~Release of~~
~~Exempt Information to Members of Congress], https://www.justice.gov/oip/blog/foia-update-policy-guidance-release-~~
~~exempt-information-members-congress-impact-murphy.~~
~~406 U.S. CONST. art. I, § 1; Release of Exempt Information to Members of Congress, supra note 405.~~
~~407 H.R. REP. NO. 1497, at 11-12 (1966) (emphasis added); Congressional Access Under FOIA, supra note 389.~~
~~408 Release of Exempt Information to Members of Congress, supra note 405.~~
~~409~~449 Some Members of Congress have criticized DOJ’s interpretation of the special access provision as too narrow. Members of Congress from both major political parties have cited Murphy in support of individual Members’ right to access information from the executive branch.450 Despite Murphy and Members’ reliance on the decision, DOJ has consistently asserted that the provision does not apply to individual Member requests. Nonetheless, DOJ has vacillated on whether the executive branch should grant individual Member requests some special consideration.451 DOJ issued two opinions—one in 2017 and another in 2019—discussing the executive branch’s treatment of individual Member requests for information. The 2017 opinion reiterated DOJ’s position that FOIA’s special access provision applies only to a request from a house of Congress, a committee, or a Member authorized by a committee.452 For requests from individual Members not authorized by Congress to conduct oversight, the executive branch would follow “a general policy of providing only documents and information that are already public or would be available to the public through the Freedom of Information Act.”453 In other words, individual Members of Congress can submit FOIA requests to the same extent as the public.454 In response to the 2017 opinion, Senator Charles Grassley sent a letter to Steven A. Engel, the then-nominee to be head of DOJ’s Office of Legal Counsel, objecting to DOJ’s position differentiating between requests from “Congress” and those from individual Members and treating individual Members’ requests in the same way as those received from the public pursuant to FOIA.455 The letter inquired about the nominee’s views regarding DOJ’s 2017 memo.456 447 Requests by Individual Members of Congress for Exec. Branch Information, 43 Op. O.L.C. 1, 9 (2019). 448 Id. 449 See, e.g., All Party Parliamentary Grp. on Extraordinary Rendition v. DOD, 754 F.3d 1047, 1052 (D.C. Cir. 2014) , All Party Parliamentary Grp. on Extraordinary Rendition v. DOD, 754 F.3d 1047, 1052 (D.C. Cir. 2014)
(“[T]his Court has interpreted FOIA section 552(d), which provides that FOIA exemptions do not apply to requests (“[T]his Court has interpreted FOIA section 552(d), which provides that FOIA exemptions do not apply to requests
from Congress, as requiring agencies to distinguish between requests made by members of Congress in their official from Congress, as requiring agencies to distinguish between requests made by members of Congress in their official
capacities and those made in their individual capacities.”) (citing Murphy v. Dep’t of Army, 613 F.2d 1151, 1157 capacities and those made in their individual capacities.”) (citing Murphy v. Dep’t of Army, 613 F.2d 1151, 1157
(D.C.(D.C. Cir.Cir. 1979)); Elec. Privacy Info. Ctr. v. Transp. Sec. Admin., 928 F. Supp. 2d 156, 165 (D.D.C. 2013) (“1979)); Elec. Privacy Info. Ctr. v. Transp. Sec. Admin., 928 F. Supp. 2d 156, 165 (D.D.C. 2013) (“~~And~~
~~earlier~~[E]arlier, in , in Murphy v. Department of the Army, the Circuit held that a document disclosed by the Army to a congressman , the Circuit held that a document disclosed by the Army to a congressman
was protected under was protected under ~~exemption~~Exemption 5 even where the army did not actively condition disclosure on confidentiality.” (citing Murphy, 613 F.2d at 1156)). 450 See, e.g., Letter to Gary M. Stern, Gen’l Counsel, Nat’l Archives & Rec. Admin., from Senators Richard Blumenthal, et al. (Aug. 8, 2018); 163 CONG. REC. 11130–32 (2017) (statement of Sen. Charles E. Grassley). 451 Compare Authority of Individual Members of Congress to Conduct Oversight of the Exec. Branch, 41 Op. O.L.C. 1, 3 (2017), with Requests by Individual Members of Congress for Exec. Branch Information, 43 Op. O.L.C. 1, 7–8 (2019). 452 Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, 41 Op. O.L.C. 1, 2 (2017). 453 Id. 454 See H.R. REP. NO. 1497, at 11–12 (1966). 455 163 CONG. REC. 11130 (2017). 456 Id. Mr. Engel provided responses to Senator Grassley in two separate letters, both reprinted in the Congressional Record. 163 CONG. REC. 11130–32 (2017). In his responses, Mr. Engel committed to reviewing the 2017 opinion and agreed that “in the interest of comity, the Executive Branch should give due weight and sympathetic consideration to (continued...) ~~5 even where the army did not actively condition disclosure on confidentiality.” (citing~~
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link to page link to page 910 link to page link to page 910 link to page link to page 910 The Freedom of Information Act (FOIA): A Legal Overview DOJ’s subsequent opinion issued in 2019 appeared to soften its stance on treatment of information requests from individual Members.457 Although DOJ continued to maintain its position that individual Members lacked constitutional oversight authority, DOJ explained that it is appropriate for agencies to “give due weight and sympathetic consideration to requests for information from individual members of Congress.”458 Executive branch policy is to provide “good-faith responses” to Member inquiries, which in turn exhibits “a proper respect” for a coordinate branch of government.459 These good-faith responses may “and often do” exceed what a federal agency discloses pursuant to FOIA.460 Nonetheless, DOJ considers these responses to be “discretionary.”461 According to DOJ, agencies may decline to respond to individual Member requests if responding to the requests would “be overly burdensome; inhibit the Executive’s responsibility to protect information that is privileged, confidential, or otherwise protected by law; or would interfere with the ability to respond in a timely manner to requests for information submitted pursuant to Congress’s oversight authority.”462 ~~The Freedom of Information Act (FOIA): A Legal Overview~~

Congressional Records
As discussed above, FOIA requires federal agencies to disclose “agency records” after receiving a As discussed above, FOIA requires federal agencies to disclose “agency records” after receiving a
valid request.valid request.~~410 But~~463 Congress is not an “agency” under FOIA. Congress is not an “agency” under FOIA.~~411~~464 Congress, accordingly, is not Congress, accordingly, is not
obligated to respond to FOIA requests for documents in its possession.obligated to respond to FOIA requests for documents in its possession.~~412 But~~465 Congress’s Congress’s
exemption from FOIA extends beyond requests directed specifically at it. Crucially, the D.C. exemption from FOIA extends beyond requests directed specifically at it. Crucially, the D.C.
Circuit has held that a document that an agency obtains from Congress or creates in response to a Circuit has held that a document that an agency obtains from Congress or creates in response to a
congressional request qualifies as a congressional record exempt from FOIA if “Congress congressional request qualifies as a congressional record exempt from FOIA if “Congress
manifested a clear manifested a clear intent to control the document.”466 requests from individual Members of Congress.” Id. Citing Murphy, Mr. Engel also explained that the D.C. Circuit has recognized that an individual member has a “constitutionally recognized status that includes a legitimate need to request such information from executive agencies as will enable him to carry out the responsibilities as a legislator,” but noted that it is a separate question as to whether Congress has by its own rules empowered individual members to seek such information from the executive branch. Id. 457 Requests by Individual Members of Congress for Exec. Branch Information, 43 Op. O.L.C. 1, 7–8 (2019). 458 Id. 459 Id. at 7. 460 Id. at 8. 461 Id. at 7. 462 Id. at 8. 463~~intent to control the document.”413~~
~~Congress is not required to provide “contemporaneous instructions when forwarding” documents~~
to agencies to manifest its intent to control a document.414 In American Civil Liberties Union v.

Murphy, 613 F.2d at 1156)).
~~410~~ See supra “Agency Records”; 5 U.S.C. § 552(a)(3)(A), (4)(B). 5 U.S.C. § 552(a)(3)(A), (4)(B).
~~411~~464 See 5 U.S.C. §§ 551(1), 552(f)(1); 5 U.S.C. §§ 551(1), 552(f)(1); see also ACLU v. CIA, 823 F.3d 655, 662 (D.C. Cir. 2016) (“[ACLU v. CIA, 823 F.3d 655, 662 (D.C. Cir. 2016) (“[~~B]ecause it~~I]t is is
undisputed that Congress is not an agency, it is also undisputed that ‘congressional documents are not subject to undisputed that Congress is not an agency, it is also undisputed that ‘congressional documents are not subject to
FOIA’s disclosure requirements.’” (quoting United We Stand Am., Inc. v. IRS, 359 F.3d 595, 597 (D.C. Cir. 2004))FOIA’s disclosure requirements.’” (quoting United We Stand Am., Inc. v. IRS, 359 F.3d 595, 597 (D.C. Cir. 2004))); ;
see Dow Jones & Co. v. DOJ, 917 F.2d 571, 574 (D.C. Cir. 1990) (“[M]embers of Congress are not within the Dow Jones & Co. v. DOJ, 917 F.2d 571, 574 (D.C. Cir. 1990) (“[M]embers of Congress are not within the
definition of agency under FOIA.”). definition of agency under FOIA.”).
~~412~~465 See ACLU, 823 F.3d at 662. , 823 F.3d at 662.
~~413~~466 Id. at 662at 662~~-63 (internal quotation marks omitted)~~–63 (quoting Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, (quoting Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208,
221 (D.C. Cir. 2013)). 221 (D.C. Cir. 2013)).
As discussed above, material does not qualify as an “agency record” if an agency does not have “control” of it at the As discussed above, material does not qualify as an “agency record” if an agency does not have “control” of it at the
time a FOIA request for the material is issued.time a FOIA request for the material is issued. See supra “Agency Records”; DOJ v. Tax Analysts, 492 U.S. 136, 145 DOJ v. Tax Analysts, 492 U.S. 136, 145
(1989). (1989). ~~The~~This report previously explained that the D.C. Circuit developed the “ report previously explained that the D.C. Circuit developed the “Burka test” for determining whether an test” for determining whether an
agency has “control” over material that it has created or obtained. agency has “control” over material that it has created or obtained. See supra “Agency Records” The The test considers test considers
(1) the intent of the document’s creator to retain or relinquish control over the records; (2) the (1) the intent of the document’s creator to retain or relinquish control over the records; (2) the
ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency
personnel have read or relied upon the document; and (4) the degree to which the document was personnel have read or relied upon the document; and (4) the degree to which the document was
integrated into the agency’s record system or files. integrated into the agency’s record system or files.
Burka v. Burka v. ~~United States~~ HHS, 87 F.3d 508, 515 (D.C. Cir. 1996) (HHS, 87 F.3d 508, 515 (D.C. Cir. 1996) (~~internal quotation marks and~~ citation omitted). The citation omitted). The
court has explained that the congressional-intent-to-control test “renders the first two factors of the [court has explained that the congressional-intent-to-control test “renders the first two factors of the [Burka] test ] test
effectively dispositive.” effectively dispositive.” Judicial Watch, 726 F.3d at 221. , 726 F.3d at 221.
Congressional Research Service 55 The Freedom of Information Act (FOIA): A Legal Overview The D.C. Circuit uses the congressional-intent-to-control test when determining whether material created or obtained The D.C. Circuit uses the congressional-intent-to-control test when determining whether material created or obtained
by an agency is a congressional recordby an agency is a congressional record, because focusing “on Congress’ intent to control (and not on the agency’s) because focusing “on Congress’ intent to control (and not on the agency’s)
reflects those special policy considerations which counsel in favor of according due deference to Congress’ reflects those special policy considerations which counsel in favor of according due deference to Congress’
~~affirmatively expressed intent to control its own documents.” Paisley v. CIA, 712 F.2d 686, 693 n.30 (D.C. Cir. 1983);~~
see also Goland v. CIA, 607 F.2d 339, 346 (D.C. Cir. 1978) (explaining that a test that would provide that “an agency’s
~~possession of a document per se dictates that document’s status as an ‘agency record’” would mean that “Congress~~
~~would be forced either to surrender its constitutional prerogative of maintaining secrecy, or to suffer an impairment of~~
~~its oversight role”).~~affirmatively expressed intent to control its own documents.”467 As the court has explained, under the congressional-intent-to-control test, if “Congress has As the court has explained, under the congressional-intent-to-control test, if “Congress has
manifested its own intent to retain control, then the agency—by definition—cannot lawfully ‘control’ the documents .manifested its own intent to retain control, then the agency—by definition—cannot lawfully ‘control’ the documents . .
... , and hence they are not ‘agency records.’”468 Congress is not required to provide “contemporaneous instructions when forwarding” documents to agencies to manifest its intent to control a document.469 In American Civil Liberties Union v. CIA~~, and hence they are not ‘agency records.’” Paisley, 712 F.2d at 693 (footnotes omitted).~~
~~The court has also used the intent-to-control test in regard to records “created in response to requests by the Office of~~
~~the President.” Judicial Watch, Inc. v. Secret Service, 726 F.3d 208, 222-23 (D.C. Cir. 2013); id. at 224 (“[T]he~~ ~~United~~
~~We Stand~~ ~~test is appropriate in this case.”); cf. Doyle v. DHS, 959 F.3d 72, 78 (2d Cir. 2020) (following “the lead of~~
Judicial Watch [v. Secret Service] in declining to compel the disclosure of [visitor logs for the presidential residence at
~~the Mar-a-Lago resort in Florida and the White House Complex] under FOIA given the difficult but avoidable~~
~~constitutional question that compelling disclosure would raise if [the court] were to interpret ‘agency records’ in a~~
~~different way”).~~
~~414 Holy Spirit Ass’n for Unification of World Christianity v. CIA, 636 F.2d 838, 842 (D.C. Cir. 1980); see ACLU, 823~~
~~F.3d at 665 (explaining that D.C. Circuit precedent “make[s] it clear that Congress may manifest an intent to retain~~
~~control over documents either when the documents are created or when the documents are transmitted to an agency”).~~
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~~The Freedom of Information Act (FOIA): A Legal Overview~~

~~Central Intelligence Agency (CIA)~~, the D.C. Circuit determined that a confidential report authored , the D.C. Circuit determined that a confidential report authored
by the Senate Select Committee on Intelligence was a congressional record and, therefore, not by the Senate Select Committee on Intelligence was a congressional record and, therefore, not
subject to FOIA.subject to FOIA.~~415~~470 The case concerned the committee’s evaluation of a CIA program on The case concerned the committee’s evaluation of a CIA program on
detention and interrogation.detention and interrogation.~~416~~471 In 2014, the committee completed a final report based on its In 2014, the committee completed a final report based on its
review.review.~~417~~472 Although the committee did not publicly release the final report, it distributed copies to Although the committee did not publicly release the final report, it distributed copies to
the President and other executive branch officials.the President and other executive branch officials.~~418~~473 In 2009, before beginning its review, the In 2009, before beginning its review, the
committee’s chair and vice chair sent a letter to the CIA memorializing an agreement concerning committee’s chair and vice chair sent a letter to the CIA memorializing an agreement concerning
the committee’s examination of CIA documents at a secure electronic CIA reading room.the committee’s examination of CIA documents at a secure electronic CIA reading room.~~419~~474 The The
letter provided the following conditions: letter provided the following conditions:
Any documents generated on the network drive referenced in paragraph 5, as well as any Any documents generated on the network drive referenced in paragraph 5, as well as any
other notes, documents, draft and final recommendations, reports or other materials other notes, documents, draft and final recommendations, reports or other materials
generated by Committee staff or Members, are the property of the Committee and will be generated by Committee staff or Members, are the property of the Committee and will be
kept at the Reading Room solely for secure safekeeping and ease of reference. These kept at the Reading Room solely for secure safekeeping and ease of reference. These
documents remain congressional records in their entirety and disposition and control over documents remain congressional records in their entirety and disposition and control over
these records, even after the completion of the Committee’s review, lies exclusively with these records, even after the completion of the Committee’s review, lies exclusively with
thethe ~~Committee. As such, these records are not CIA records under [FOIA] or any other law~~
~~. . .~~ Committee. As such, these records are not CIA records under [FOIA] or any other law.... If the CIA receives any request or demand for access to these records from outside . If the CIA receives any request or demand for access to these records from outside
the CIA under [FOIA] or any other authority, the CIA will immediately notify the the CIA under [FOIA] or any other authority, the CIA will immediately notify the
Committee and will respond to the request or demand based upon the understanding that Committee and will respond to the request or demand based upon the understanding that
these are congressional, not CIA, records.these are congressional, not CIA, records.~~420~~
~~The D.C. Circuit reasoned that these conditions made “it plain that the Senate Committee~~
~~intended to control any and all of its work product, including the [resulting 2014 final report],~~
~~emanating from its oversight investigation of the CIA.”421 The committee’s subsequent~~
~~transmission of the report to executive branch officials, with the instruction to the CIA and other~~
~~agencies to use the report “as broadly as appropriate” both to ensure that the practices the report~~
~~criticized were never repeated and to help in the development of CIA programs and executive~~
~~branch guidelines, did not erase “the Senate Committee’s clear intent to maintain control of the”~~
~~final report.422~~

~~415 ACLU, 823 F.3d at 667-68.~~
~~416 Id. at 658.~~
~~417 Id. at 658.~~
~~418 Id. at 660.~~
~~419 Id. at 659.~~
~~420 Id. at 665 (citation and internal quotation marks omitted) (ellipses in original) (emphasis omitted).~~ ~~Id.~~
~~421 It further explained that its “command is unequivocal, and it contains no temporal limitations.” ACLU, 823 F.3d at~~
~~665 (citation and internal quotation marks omitted).~~
~~422 Id. at 667. The court’s decision was supported by the fact that the committee had publicly released the report’s~~
~~executive summary, only provided copies of the final report to a limited number of executive branch officials, and,~~
~~when the committee submitted a draft of the report to executive branch officials in 2012, the committee “made it clear~~
~~that [it] would determine if and when to publicly disseminate the” final report.” Id. at 666-67.~~
~~Congressional Research Service~~
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~~The Freedom of Information Act (FOIA): A Legal Overview~~
475 467 Paisley v. CIA, 712 F.2d 686, 693 n.30 (D.C. Cir. 1983); see also Goland v. CIA, 607 F.2d 339, 346 (D.C. Cir. 1978) (explaining that a test that would provide that “an agency’s possession of a document per se dictates that document’s status as an ‘agency record’” would mean that “Congress would be forced either to surrender its constitutional prerogative of maintaining secrecy, or to suffer an impairment of its oversight role”). 468 Paisley, 712 F.2d at 693 (footnotes omitted). The court has also used the intent-to-control test in regard to records created by the Office of the President, portions of which are not subject to FOIA. Judicial Watch, Inc. v. Secret Service, 726 F.3d 208, 222–23 (D.C. Cir. 2013); cf. Doyle v. DHS, 959 F.3d 72, 78 (2d Cir. 2020) (following “the lead of Judicial Watch [v. Secret Service] in declining to compel the disclosure of [visitor logs for the presidential residence at the Mar-a-Lago resort in Florida and the White House Complex] under FOIA given the difficult but avoidable constitutional question that compelling disclosure would raise if [the court] were to interpret ‘agency records’” in a way that compelled disclosure in such a way as to possibly infringe on the President’s constitutional privileges). 469 Holy Spirit Ass’n for Unification of World Christianity v. CIA, 636 F.2d 838, 842 (D.C. Cir. 1980); see ACLU, 823 F.3d at 664 (explaining that D.C. Circuit precedent “make[s] it clear that Congress may manifest an intent to retain control over documents either when the documents are created or when the documents are transmitted to an agency”). 470 ACLU, 823 F.3d at 667–68. 471 Id. at 658. 472 Id. at 658. 473 Id. at 660. 474 Id. at 659. 475 Id. at 665. Congressional Research Service 56 The Freedom of Information Act (FOIA): A Legal Overview The D.C. Circuit reasoned that these conditions made “it plain that the Senate Committee intended to control any and all of its work product, including the [resulting 2014 final report], emanating from its oversight investigation of the CIA.”476 The committee’s subsequent transmission of the report to executive branch officials, with the instruction to the CIA and other agencies to use the report “as broadly as appropriate” both to ensure that the practices the report criticized were never repeated and to help in the development of CIA programs and executive branch guidelines, did not erase “the Senate Committee’s clear intent to maintain control of the [final] report.... ”477
Whether Congress’s manifestation of intent to control extends to a particular record depends on Whether Congress’s manifestation of intent to control extends to a particular record depends on
the language used in Congress’s directive to the agency. In the language used in Congress’s directive to the agency. In United We Stand America v. Internal
Revenue Service (IRS), the D.C. Circuit held that a letter sent from the chief of staff of the Joint , the D.C. Circuit held that a letter sent from the chief of staff of the Joint
Committee on Taxation to the IRS requesting information in connection with a committee Committee on Taxation to the IRS requesting information in connection with a committee
investigation did not fully protect the IRS’s response.investigation did not fully protect the IRS’s response.~~423~~478 The request stated The request stated:
This document is a This document is a ~~Congressional~~congressional record and is entrusted to the record and is entrusted to the [IRS] for your use only. [IRS] for your use only.
This document may not be disclosed without the prior approval of the Joint Committee.This document may not be disclosed without the prior approval of the Joint Committee.~~424~~479
The IRS transmitted documents in response to the committee’s request (of which the agency The IRS transmitted documents in response to the committee’s request (of which the agency
retained a copy).retained a copy).~~425~~480 In litigation arising from a FOIA request for the committee’s request and the In litigation arising from a FOIA request for the committee’s request and the
agency’s response thereto, the court held that, although the language from the committee’s agency’s response thereto, the court held that, although the language from the committee’s
request quoted above—which referred to “[t]his document”—conveyed a sufficient manifestation request quoted above—which referred to “[t]his document”—conveyed a sufficient manifestation
of intent to control the committee’s request, that manifestation of intent did not extend to the of intent to control the committee’s request, that manifestation of intent did not extend to the
IRS’s response, save for “those portions of the IRS response that would effectively disclose th[e] IRS’s response, save for “those portions of the IRS response that would effectively disclose th[e]
[committee’s] request.”[committee’s] request.”~~426~~481 As the court explained, “[if] the Joint Committee intended to keep As the court explained, “[if] the Joint Committee intended to keep
confidential not just ‘this document’ but also the IRS response, it could have done so by referring confidential not just ‘this document’ but also the IRS response, it could have done so by referring
to ‘this document and all IRS documents created in response to it.’”to ‘this document and all IRS documents created in response to it.’”~~427~~482 Accordingly, the court of Accordingly, the court of
appeals remanded the case to the district court to conclude whether information in the response appeals remanded the case to the district court to conclude whether information in the response
that would reveal the committee’s request could be redacted and to direct the agency to “release that would reveal the committee’s request could be redacted and to direct the agency to “release
any segregable portions that are not otherwise protected by one of FOIA’s nine exemptions.”any segregable portions that are not otherwise protected by one of FOIA’s nine exemptions.”~~428~~483
The D.C. Circuit has articulated other principles The D.C. Circuit has articulated other principles that may be helpful for determining whether Congress has helpful for determining whether Congress has
manifested sufficient intent to control a particular record. For example, the court has found that manifested sufficient intent to control a particular record. For example, the court has found that
“post-hoc objections” to disclosure raised by Congress “long after the .“post-hoc objections” to disclosure raised by Congress “long after the . . .. record[s’] creation” and . record[s’] creation” and
“in response to the FOIA litigation” do not convey sufficient manifestations of intent to control.“in response to the FOIA litigation” do not convey sufficient manifestations of intent to control.~~429~~
484 Nor are proper manifestations of intent contained in expressions that are “too Nor are proper manifestations of intent contained in expressions that are “too ~~general and~~
~~sweeping.”430 In Paisley v. CIA, for example, the court acknowledged that letters sent by the~~
~~Senate Select Committee on Intelligence to the CIA “indicate[d] the Committee’s desire to~~
~~prevent release without its approval of any documents generated by the Committee or by an~~
~~intelligence agency in response to a Committee inquiry.”431 However, the court held that the~~
~~letters did not alone manifest sufficient congressional intent to control the documents at issue~~

~~423 United We Stand, 359 F.3d at 602.~~
~~424 Id. at 597 (citation and internal quotation marks omitted).~~
~~425~~ ~~Id.~~
~~426 Id. at 602.~~
~~427 Id. at 601.~~
~~428 Id. at 605.~~
~~429~~ 476 It further explained that its “command is unequivocal, and it contains no temporal limitations.” ACLU, 823 F.3d at 665 (citation omitted). 477 Id. at 667. The court’s decision was supported by the fact that the committee had publicly released the report’s executive summary, only provided copies of the final report to a limited number of executive branch officials, and, when the committee submitted a draft of the report to executive branch officials in 2012, the committee “made it clear that [it] would determine if and when to publicly disseminate the” final report.” Id. at 666–67. 478 United We Stand, 359 F.3d at 602. 479 Id. at 597 (citation omitted). 480 Id. 481 Id. at 602. 482 Id. at 601. 483 Id. at 605. 484 Id. at 602; at 602; see ACLU, 823 F.3d at 664 (explaining that a letter sent by the new chairman of the committee to the , 823 F.3d at 664 (explaining that a letter sent by the new chairman of the committee to the
President demanding the return of the final report “was sent after Appellants had submitted their FOIA request and President demanding the return of the final report “was sent after Appellants had submitted their FOIA request and
after they had filed suit in the District Court” and concluding, accordingly, that the letter “is a ‘post-hoc objection[] to after they had filed suit in the District Court” and concluding, accordingly, that the letter “is a ‘post-hoc objection[] to
~~disclosure,’ and, as such, it ‘cannot manifest the clear assertion of congressional control that our case law requires.’”)~~
~~(citation and internal quotation marks omitted) (alteration in original); cf. Am. Oversight, Inc. v. HHS, No. 17-827,~~
~~2018 U.S. Dist. LEXIS 220885, at *19 (D.D.C. Aug. 10, 2018) (”[T]o satisfy the requirement regarding the timing of~~
~~congressional manifestation of intent, Congress must establish its intent to retain control over the records prior to the~~
~~FOIA request to which the records are responsive.”).~~
~~430 Paisley, 712 F.2d at 694; see United We Stand, 359 F.3d at 602 (agency’s argument that the congressional~~
~~committee had an expectation of confidentiality regarding its communications with the agency based “on its consistent~~
~~course of dealing with the” agency, as “such an understanding is far too general to remove the [document] from FOIA’s~~
~~disclosure requirement”).~~
~~431 Paisley, 712 F.2d at 695.~~
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(continued...) Congressional Research Service 57 The Freedom of Information Act (FOIA): A Legal Overview general and sweeping.”485 In Paisley v. CIA, for example, the court acknowledged that letters sent by the Senate Select Committee on Intelligence to the CIA “indicate[d] the Committee’s desire to prevent release without its approval of any documents generated by the Committee or by an intelligence agency in response to a Committee inquiry.”486 However, the court held that the letters did not alone manifest sufficient congressional-intent-to-control the documents at issue because “there [was] no discussion of any particular documents or of any particular criteria by because “there [was] no discussion of any particular documents or of any particular criteria by
which to evaluate and limit the breadth of [the Committee’s] interdiction.”which to evaluate and limit the breadth of [the Committee’s] interdiction.”~~432~~487
Whether Congress has sufficiently manifested intent to control a document ultimately depends on Whether Congress has sufficiently manifested intent to control a document ultimately depends on
the circumstances underlying each case.the circumstances underlying each case.~~433~~488 For example, in For example, in United We Stand (discussed above), (discussed above),
the D.C. Circuit specifically underscored that the manifestation of intent to control at issue in that the D.C. Circuit specifically underscored that the manifestation of intent to control at issue in that
case was contained “in a letter written by the Joint Committee’s chief of staff as part of an case was contained “in a letter written by the Joint Committee’s chief of staff as part of an
investigation authorized by the chairman, vice-chairman, and ranking members of the Joint investigation authorized by the chairman, vice-chairman, and ranking members of the Joint
Committee,” as well as that an IRS document that the committee relied on “expressly Committee,” as well as that an IRS document that the committee relied on “expressly
recognize[d] the confidentiality of Joint Committee requests.”recognize[d] the confidentiality of Joint Committee requests.”~~434 On the other hand, in~~489 In American
Oversight, Inc. v. Department of Health & Human Services, the , the ~~U.S.~~United States District Court for the District Court for the
District of District of Columbia~~Columbia did not explicitly emphasize the level of formality of the congressional~~
~~manifestation of assent in reaching its decision that the materials at issue were not agency records~~
~~subject to disclosure under FOIA.435 Instead, the court~~ relied on its reading of language contained relied on its reading of language contained
in email messages between staff of the House Committee on Ways and Means and executive in email messages between staff of the House Committee on Ways and Means and executive
branch personnel addressing “health care reform” to find that Congress had manifested its intent branch personnel addressing “health care reform” to find that Congress had manifested its intent
to retain control over the messages.to retain control over the messages.~~436~~490 Records that are not “congressional records”—as that term has been defined by the courts but originated in Congress and were transmitted to the agency as advice solicited by the agency—may also be withheld under Exemption 5’s consultant corollary.491 Congress, in other words, can be considered a “consultant” for the purposes of Exemption 5 in certain circumstances. In Ryan v. disclosure,’ and, as such, it ‘cannot manifest the clear assertion of congressional control that our case law requires.’”) (citation omitted) (alteration in original). 485 Paisley, 712 F.2d at 694; see United We Stand, 359 F.3d at 602 (rejecting agency’s argument that the congressional committee had an expectation of confidentiality regarding its communications with the agency based “on its consistent course of dealing with the” agency, as “such an understanding is far too general to remove the [document] from FOIA’s disclosure requirement”). 486 Paisley, 712 F.2d at 695. 487 Id. 488
~~Related Open Government and Information Laws:~~
~~FACA, the Sunshine Act, and the Privacy Act~~
~~FOIA is the primary statutory mechanism by which the public may gain access to federal~~
~~government records and information. But other laws—specifically FACA, the Sunshine Act, and~~
~~the Privacy Act—also set forth rights and limitations on the public’s access to government~~
~~information or activities. FACA governs the establishment and operation of certain advisory~~
~~committees created to supply advice and recommendations to federal agencies or the President.437~~

432 Id.
~~433~~ See Goland, 607 F.2d at 347 (“Whether a congressionally generated document has become an agency record ., 607 F.2d at 347 (“Whether a congressionally generated document has become an agency record . . .. .
depends on whether under all the facts of the case, the document has passed from the control of Congress and become depends on whether under all the facts of the case, the document has passed from the control of Congress and become
property subject to the free disposition of the agency with which the document resides.”). property subject to the free disposition of the agency with which the document resides.”).
~~434~~489 United We Stand, 359 F.3d at 605. , 359 F.3d at 605. ~~But the~~The court “express[ed] no view about the sufficiency of congressional court “express[ed] no view about the sufficiency of congressional
manifestations of intent to control documents that are created under other circumstances.”manifestations of intent to control documents that are created under other circumstances.” Id.
~~435 See 2018 U.S. Dist. LEXIS 220885, at *14-21.~~
436 Id.*5, *14-21490 Am. Oversight, Inc. v. U.S. Dep't of Health & Hum. Servs., No. CV 17-827 EGS/DAR, 2018 WL 4765145, at *4–6 (D.D.C. Aug. 10, 2018), report and recommendation adopted in part, rejected in part, No. CV 17-827 (EGS/DAR), 2022 WL 1719001 (D.D.C. May 27, 2022). The language consisted of boilerplate that the committee included in each email chain at issue and . The language consisted of boilerplate that the committee included in each email chain at issue and
stated: stated:
This document and any related documents, notes, draft and final legislation, recommendations, reports, or other This document and any related documents, notes, draft and final legislation, recommendations, reports, or other
materials generated by the Members or staff of the Committee on Ways and Means are records of the Committee, materials generated by the Members or staff of the Committee on Ways and Means are records of the Committee,
remain subject to the Committee’s control, and are entrusted to your agency only for use in handling this matter. remain subject to the Committee’s control, and are entrusted to your agency only for use in handling this matter.
Any such documents created or compiled by an agency in connection with any response to this Committee Any such documents created or compiled by an agency in connection with any response to this Committee
document or any related Committee communications, including but not limited to any replies to the Committee, document or any related Committee communications, including but not limited to any replies to the Committee,
are also records of the Committee and remain subject to the Committee's control. Accordingly, the aforementioned are also records of the Committee and remain subject to the Committee's control. Accordingly, the aforementioned
documents are not documents are not “‘agency recordsagency records”’ for purposes of the Freedom of Information Act or other law. for purposes of the Freedom of Information Act or other law.
Id. at * at *~~8 (quotation marks added) (citation omitted).~~
~~437~~3 (citation omitted). 491 See, e.g., Rockwell Int’l Corp. v. DOJ, 235 F.3d 598, 604 (D.C. Cir. 2001); Ryan v. DOJ, 617 F.2d, 781, 790 (D.C. Cir. 1980). Congressional Research Service 58 The Freedom of Information Act (FOIA): A Legal Overview DOJ, for example, DOJ sent questionnaires to all Senators regarding judicial appointments.492 The Senators’ responses, held by DOJ, were then the subject of a FOIA request.493 The D.C. Circuit held that the Senators’ responses were “intra-agency” memoranda pursuant to Exemption 5 because DOJ solicited the responses and they were part of DOJ’s deliberative process.494 Records or information originating from Congress, however, must still meet the two-part consultant corollary test discussed above to qualify as intra-agency memoranda under Exemption 5.495 It may be difficult for Members and their staff to meet the consultant corollary test, however. In order to meet the test, Members and their staff must be “the functional equivalent of an agency employee working on the same matter.”496 That is, they cannot “have a stake in the outcome of the agency’s process” or “represent an interest of [their] own.”497 In May 2024, the D.C. Circuit held that communications between the executive branch and Members and their staff related to pending legislation was not protected by the consultant corollary, because “[w]hen members of Congress and their staffs engage with executive agencies concerning legislation, they are almost inevitably acting on behalf of other interests than those of the agencies, including those of Congress as an institution and those of their constituents.”498 The court declined to determine whether Members and their staff could ever satisfy the consultant corollary test.499 Related Open Government and Information Laws: FACA, the Sunshine Act, and the Privacy Act FOIA is the primary statutory mechanism by which the public may gain access to federal government records and information. Other laws—specifically FACA, the Sunshine Act, and the Privacy Act—also set forth rights and limitations on the public’s access to government information or activities.500 FACA governs the establishment and operation of certain advisory committees created to supply advice and recommendations to federal agencies or the President.501 Among other things, the statute generally mandates the public availability of an advisory 492 617 F.2d at 784. 493 Id. 494 Id. at 790. 495 See Am. Oversight v. DOT, No. 18-1272 (CKK), 2022 WL 103306, at *5 (D.D.C. Jan. 11, 2022); Am. Oversight v. HHS, No. 17-827 (EGS/DAR), 2022 WL 1719001, at *12–*14 (D.D.C. May 27, 2022), reversed and remanded by 101 F.4th 909, (D.C. Cir. 2024). 496 Am. Oversight v. HHS, 101 F.4th 909, 917 (D.C. Cir. 2024). 497 Id. 498 Id. at *8. 499 Id. 500 Federal Advisory Committee Act (FACA), Pub. L. No. 92-463, 86 Stat. 770 (1972), 5 U.S.C. §§ 1001–1014; Government in the Sunshine Act (Sunshine Act), Pub. L. No. 94-409, 90 Stat. 1241 (1976) 5 U.S.C. § 552b; Privacy Act, Pub. L. No. 93-579, 88 Stat. 1896 (1974), 5 U.S.C. § 552a; CRS Report R47058, Access to Government Information: An Overview, by Meghan M. Stuessy (2023). 501 An “advisory committee,” as defined by FACA, is “any committee, board, commission, council, conference, panel, An “advisory committee,” as defined by FACA, is “any committee, board, commission, council, conference, panel,
task force, or other similar group” that has been “established by statute or reorganization plan” or “established or task force, or other similar group” that has been “established by statute or reorganization plan” or “established or
utilized” by either the President or an agency “in the interest of obtaining advice or recommendations for the President utilized” by either the President or an agency “in the interest of obtaining advice or recommendations for the President
or one or more agencies or officers of the Federal Government.” 5 U.S.C. app.or one or more agencies or officers of the Federal Government.” 5 U.S.C. app. 2 § 3. However, groups that are entirely 2 § 3. However, groups that are entirely
composed of federal employees are excluded from the definition of “advisory committee,” as are committees of the composed of federal employees are excluded from the definition of “advisory committee,” as are committees of the
National Academy of Sciences and National Academy of Public Administration. National Academy of Sciences and National Academy of Public Administration. Id.;; see also id. § 4 (providing that § 4 (providing that
FACA does not apply to committees established or utilized by the CIA, Federal Reserve System, or Office of the FACA does not apply to committees established or utilized by the CIA, Federal Reserve System, or Office of the
Director of National Intelligence (ODNI) (but only, in regard to the ODNI, to the extent that the Director “determines that for reasons of national security such advisory committee cannot comply with” FACA). Congressional Research Service 59 ~~Congressional Research Service~~
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The Freedom of Information Act (FOIA): A Legal Overview

~~Among other things, the statute generally mandates the public availability of an advisory~~
committee’s “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, committee’s “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies,
agenda, or other documents,”agenda, or other documents,”~~438~~502 and members of the public are authorized under FACA to attend and members of the public are authorized under FACA to attend
and participate in advisory committee meetings.and participate in advisory committee meetings.~~439~~503 The availability of an advisory committee’s The availability of an advisory committee’s
papers is subject to FOIA’s exemptions.papers is subject to FOIA’s exemptions.~~440~~504
Another general open government statute, the Sunshine Act, imposes transparency obligations on Another general open government statute, the Sunshine Act, imposes transparency obligations on
the meetings of certain multimember boards and commissions.the meetings of certain multimember boards and commissions.~~441~~505 The statute requires that The statute requires that
covered agencies allow the public to attend their covered agencies allow the public to attend their ~~meetings442~~meetings506 and have access to relevant and have access to relevant
information.information.~~443~~507 Meetings and information required to be disclosed under the act are subject to ten Meetings and information required to be disclosed under the act are subject to ten
exemptions, many of which resemble FOIA’s.exemptions, many of which resemble FOIA’s.~~444~~508
Lastly, the Privacy Act governs the “collection, maintenance, use and dissemination” of agency Lastly, the Privacy Act governs the “collection, maintenance, use and dissemination” of agency
records that contain individually identifiable information about United States citizens and lawful records that contain individually identifiable information about United States citizens and lawful
permanent residents.permanent residents.~~445~~509 The act forbids the disclosure of covered records without the written The act forbids the disclosure of covered records without the written
consent or request of the individual identified by the record, subject to twelve exceptions.consent or request of the individual identified by the record, subject to twelve exceptions.~~446~~510 One One
Privacy Act exception covers records for which disclosure “would be .Privacy Act exception covers records for which disclosure “would be . . .. required” by FOIA.. required” by FOIA.~~447~~511
Under this exception, an agency record subject to the Privacy Act that is Under this exception, an agency record subject to the Privacy Act that is not protected by any of protected by any of
FOIA’s exemptions—and which therefore must be disclosed under FOIA upon request—is not FOIA’s exemptions—and which therefore must be disclosed under FOIA upon request—is not
prohibited from being disclosed by the Privacy Act.prohibited from being disclosed by the Privacy Act.~~448~~512 The Privacy Act also permits individuals to The Privacy Act also permits individuals to

~~Director of National Intelligence (ODNI) (but only, in regard to the ODNI, to the extent that the Director “determines~~
~~that for reasons of national security such advisory committee cannot comply with” FACA).~~
~~438~~ 502 Id. § 10(b). § 10(b).
~~439~~503 Id. § 10(a)(1), (3).§ 10(a)(1), (3). But see id. § 10(d) (providing that these requirements “shall not apply to any portion of an § 10(d) (providing that these requirements “shall not apply to any portion of an
advisory committee meeting where the President, or the head of the agency to which the advisory committee reports, advisory committee meeting where the President, or the head of the agency to which the advisory committee reports,
determines that such portion of such meeting may be closed to the public in accordance with [the Sunshine Act]”). determines that such portion of such meeting may be closed to the public in accordance with [the Sunshine Act]”).
~~440~~504 See id. § 10(b); Nat. Res. Def. Council v. Johnson, 488 F.3d 1002, 1003 (D.C. Cir. 2007) (explaining that FACA, at § 10(b); Nat. Res. Def. Council v. Johnson, 488 F.3d 1002, 1003 (D.C. Cir. 2007) (explaining that FACA, at
§ 10(b), “incorporates the FOIA exemptions”). § 10(b), “incorporates the FOIA exemptions”).
~~441~~505 See 5 U.S.C. § 552b. The Sunshine Act specifically applies to each “agency” (as that term is described in FOIA at 5 U.S.C. § 552b. The Sunshine Act specifically applies to each “agency” (as that term is described in FOIA at
§ 552(f)) that is “headed by a collegial body composed of two or more individual members, a majority of whom are § 552(f)) that is “headed by a collegial body composed of two or more individual members, a majority of whom are
appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof
authorized to act on behalf of the agency.”authorized to act on behalf of the agency.” Id. § 552b(a)(1). § 552b(a)(1).
~~442~~506 The Sunshine Act defines “meeting” to generally mean “the deliberations of at least the number of individual The Sunshine Act defines “meeting” to generally mean “the deliberations of at least the number of individual
agency members required to take action on behalf of the agency where such deliberations determine or result in the agency members required to take action on behalf of the agency where such deliberations determine or result in the
joint conduct or disposition of official agency business.” 5 U.S.C. § 552b(a)(2). joint conduct or disposition of official agency business.” 5 U.S.C. § 552b(a)(2).
~~443~~507 See id. § 552b(b); § 552b(b); see also, e.g., , id. § 552b(f)(2) (directing agencies to “make promptly available to the public . § 552b(f)(2) (directing agencies to “make promptly available to the public . ~~. .~~
.. the transcript, electronic recording, or minutes .the transcript, electronic recording, or minutes . . .. of the discussion of any item on the agenda, or of any item of the . of the discussion of any item on the agenda, or of any item of the
testimony of any witness received at [a] meeting” or portion of a meeting that was closed by the agency pursuant to the testimony of any witness received at [a] meeting” or portion of a meeting that was closed by the agency pursuant to the
exemptions contained in § 552b(c). exemptions contained in § 552b(c).
~~444~~508 See id. § 552b(c)(1) § 552b(c)(1)-–(10). (10).
~~445~~509 Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984); Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984); see 5 U.S.C.5 U.S.C. § 552a(a)(2) (defining “individual” for purposes § 552a(a)(2) (defining “individual” for purposes
of the Privacy Act as “a citizen of the United States or an alien lawfully admitted for permanent residence”). of the Privacy Act as “a citizen of the United States or an alien lawfully admitted for permanent residence”).
~~446 5 U.S.C. § 552a(b)(1)-~~For more information about the Privacy Act see CRS Report R47863, The Privacy Act of 1974: Overview and Issues for Congress, by Meghan M. Stuessy (2023). 510 5 U.S.C. § 552a(b)(1)–(12). The Privacy Act applies to “any record which is contained in a system of records.” (12). The Privacy Act applies to “any record which is contained in a system of records.” Id.
The act defines “record” as “any item, collection, or grouping of information about an individual that is maintained by The act defines “record” as “any item, collection, or grouping of information about an individual that is maintained by
an agency .an agency . . .. and that contains his name, or the identifying number, symbol, or other identifying particular assigned to . and that contains his name, or the identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voice print or a photograph.” the individual, such as a finger or voice print or a photograph.” Id. § 552a(a)(4). A “system of records” is “a group of § 552a(a)(4). A “system of records” is “a group of
any records under the control of any agency from which information is retrieved by the name of the individual or by any records under the control of any agency from which information is retrieved by the name of the individual or by
some identifying number, symbol, or other identifying particular assigned to the individual.” some identifying number, symbol, or other identifying particular assigned to the individual.” Id. § 552a(a)(5). § 552a(a)(5).
~~447~~511 Id. § 552a(b)(2). § 552a(b)(2).
~~448~~512 See, e.g., DOD v. Fed. Labor Relations Auth., 510 U.S. 487, 502 (1994) (holding that “FOIA ., DOD v. Fed. Labor Relations Auth., 510 U.S. 487, 502 (1994) (holding that “FOIA . . .. does not require . does not require
the agencies to divulge the [records at issue], and the Privacy Act, therefore, prohibits their release”). the agencies to divulge the [records at issue], and the Privacy Act, therefore, prohibits their release”).
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request “access to [their] record[s] or to any information pertaining to [them] which is contained request “access to [their] record[s] or to any information pertaining to [them] which is contained
in” a system of records, and to seek the amendment of such records, subject to exemptions.in” a system of records, and to seek the amendment of such records, subject to exemptions.~~449~~513

Author Information

~~Daniel J. Sheffner~~Benjamin M. Barczewski

Legislative Attorney Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
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copy or otherwise use copyrighted material. copy or otherwise use copyrighted material.

~~449~~ 513 See 5 U.S.C.5 U.S.C. § 552a(d), (j), (k).§ 552a(d), (j), (k). FOIA’s exemptions may not be used “to withhold from an individual any record FOIA’s exemptions may not be used “to withhold from an individual any record
which is otherwise accessible to such individual under the provisions of” the Privacy Act. which is otherwise accessible to such individual under the provisions of” the Privacy Act. Id. § 552a(t)(1). § 552a(t)(1).
The Privacy Act also authorizes individuals to request accountings of certain disclosures of records in which they are The Privacy Act also authorizes individuals to request accountings of certain disclosures of records in which they are
identified, and requires agencies to “inform any person or other agency about any correction or notation of dispute identified, and requires agencies to “inform any person or other agency about any correction or notation of dispute
made by the agency .made by the agency . . .. of any record that has been disclosed to the person or agency if an accounting of the disclosure . of any record that has been disclosed to the person or agency if an accounting of the disclosure
was made.” was made.” Id. § 552a(c)(3), (4). An agency may, under certain circumstances, exempt a system of records from those § 552a(c)(3), (4). An agency may, under certain circumstances, exempt a system of records from those
provisions. provisions. See id. § 552a(j), (k). § 552a(j), (k).
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