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

February 24, 2020 – June 27, 2024 R46238

The Freedom of Information Act (FOIA): A
Legal Overview
June 27, 2024
Benjamin M. Barczewski
Originally enacted in 1966, the Freedom of Information Act (FOIA) establishes a three-part
Legislative Attorney
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
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
other things, final adjudicative opinions and certain “frequently requested” records. Lastly, FOIA requires agencies to
disclose all covered records not made available pursuant to the aforementioned affirmative disclosure provisions to
individuals, corporations, and others upon request.
FOIA contains nine enumerated exemptions from disclosure that permit—but do not require—agencies to withhold certain
information, including classified national security matters, confidential financial information, law enforcement records, and a
variety of materials and types of information exempted by other statutes. FOIA also contains three “exclusions” that
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 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
withheld.” Judicial decisions—including Supreme Court decisions—have often informed or provided the impetus for
congressional amendments to FOIA.
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-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 executive
privilege, may shield information from disclosure). The executive branch has interpreted this provision to apply to each
house of Congress and congressional committees but generally not to individual Members. Individual Members’ requests for
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 Section 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, whether a congressional document possessed by an agency is subject to FOIA depends on whether Congress clearly
expressed its intention to retain control over the specific document.
Congressional Research Service

link to page 22 link to page 65 The Freedom of Information Act (FOIA): A Legal Overview

Tables
Table 1. FOIA Exemptions ............................................................................................................ 18

Contacts
Author Information ........................................................................................................................ 61
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
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 had required agencies to
make certain government information available to the public. 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 FOIA’s drafters, “become the major statutory excuse for withholding Government
records from public view.”11 For example, agencies could withhold information if doing so was
“in the public interest”12 or—for “matters of official record”—when information was “held
confidential for good cause found.”13 In addition, the APA’s public information section lacked 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); see also 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”).
12 5 U.S.C. § 1002 (amended by Administrative Procedure Act Amendments of 1966, Pub. L. No. 89-487, 80 Stat. 150
(1966)).
13 Id. § 1002(c); see also, e.g., id. (limiting the availability of matters of official record “to persons properly and directly
concerned”). See H.R. REP. NO. 1497, at 5–6 (1966) (discussing agencies’ abuse of the APA’s public information
section).
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
withholding agency records” and “order the production of any agency records improperly
withheld.”21
This report provides an overview of FOIA.22 First, the report examines key terms that dictate the
scope of agencies’ disclosure obligations under FOIA.23 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 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.
POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT (last updated Aug. 4, 2020), https://www.justice.gov/oip/doj-
guide-freedom-information-act-0.
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.
Congressional Research Service
2

link to page 63 link to page 63 The Freedom of Information Act (FOIA): A Legal Overview

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
legal regimes: the Federal Advisory Committee Act (FACA),30 the Government in the Sunshine
Act (Sunshine Act),31 and the Privacy Act of 1974.32
Key Terms
FOIA generally requires each federal “agency” to make “agency records” available to the public
and specifically to “any person” who requests them.33 FOIA does not, however, require every
federal entity to disclose government information to the public, nor must a covered entity disclose
every piece of information it possesses. Not all persons have a right to receive records under the
act. Three key statutory terms inform FOIA’s general scope: (1) “agency,”34 (2) “agency
records,”35 and (3) “any person.”36 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
grants the right to request and receive records.
“Agency”
Only an “agency” as defined by FOIA is subject to FOIA’s requirements. FOIA adopts wholesale
the APA’s general definition of “agency.” The APA defines “agency” as “each authority of the
Government of the United States, whether or not it is within or subject to review by another
agency.”37 FOIA further specifies that, for the act’s purposes, the term “includes any executive
department, military department, Government corporation, 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. § 552a; see infra Related Open Government and
Information Laws: FACA, the Sunshine Act, and the Privacy Act.
33 5 U.S.C. § 552(a)(3)(A), (4)(B).
34 See id. §§ 551(1), 552(f)(2); see also id. § 552(a)(3)(A) (requiring that “each agency ... make [requested] records
promptly available” upon receiving a proper request).
35 See id. § 552(a)(4)(B).
36 See id. § 552(a)(3)(A).
37 Id. § 551(1). Several entities, such as Congress and the federal courts, are explicitly excepted from this definition. Id.
§ 551(1)(A), (B).
38 Id. § 552(f)(1).
Congressional Research Service
3

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

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),41
courts have determined that several entities within the EOP are nevertheless not subject to the act.
In Kissinger v. Reporters Committee for Freedom of the Press, the Supreme Court held that
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.42 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, inter alia, “(A) the Congress;
(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 any part of the legislative and judicial branches, including their
subcomponents. See, e.g., Mayo v. GPO, 9 F.3d 1450, 1451 (9th Cir. 1993) (recognizing that the Government
Publishing Office, as a legislative branch entity, is not covered by FOIA); Andrade v. U.S. Sentencing Comm’n, 989
F.2d 308, 309–10 (9th Cir. 1993) (ruling that FOIA does not apply to the Sentencing Commission as it is a judicial
branch entity); see also Mayo, 9 F.3d at 1451 (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
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 ‘does not cover congressional documents,’ or documents of
legislative branch agencies”) (citations omitted). However, many entities that are not subject to FOIA nonetheless
authorize public access to many of their records. See, e.g., 4 C.F.R. pt. 81 (authorizing public access to Government
Accountability Office records). Some entities that fall outside FOIA’s coverage are nonetheless required to provide
access to records under non-FOIA statutes. See, e.g., 2 U.S.C. § 603 (requiring public access to Congressional Budget
Office budget data).
40 See, e.g., Grand Cent. 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 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 forth by the Court in Kissinger, 445
U.S. at 136, was quoted from the conference report accompanying 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 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 provided that “[w]ith respect
to the meaning of the term ‘Executive Office of the President’ the conferees intend the result reached in Soucie v.
David, 448 F.2d 1067 (C.A.D.C. 1971).” In Soucie, 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 FOIA. Id. 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.” Id. at 1073. Although 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 staff and not a separate
agency.” Id. at 1075. The Soucie 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 reading of FOIA would
engender.” Judicial Watch, Inc. v. U.S. Secret Service, 726 F.3d 208, 227 (D.C. Cir. 2013).
44 Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1042–43 (D.C. Cir. 1985).
45 Citizens for Responsibility & Ethics in Wash. (CREW) v. Office of Admin., 566 F.3d 219, 226 (D.C. Cir. 2009).
46 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). Cf. Sweetland v. Walters, 60 F.3d 852, 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

(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 Kissinger, stated that the “Executive
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 1974, Pub. L. No. 93-502, 88 Stat. 1561 (1974), SOURCE BOOK:
LEGISLATIVE HISTORY, TEXTS, AND OTHER DOCUMENTS, at 121, 128 (Joint Comm. Print 1975). The Court in Kissinger,
in response to the 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. See
Kissinger, 445 U.S. at 156 (writing that the committee report “indicat[es] that the [NSC] is an executive agency to
which the FOIA applies”). The U.S. Court of Appeals for the Second Circuit in Main St. Legal Servs., Inc. v. Nat'l Sec.
Council, 811 F.3d 542 (2d Cir. 2016), explained that the Kissinger Court’s “assumption that the NSC was an agency
was made only arguendo in concluding ... 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 dictum.” See Rushforth, 762 F.2d at 1040–41 (“Where ...
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 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 case before us should, accordingly, turn on an
examination of Soucie and the sole-function test enunciated in that 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 agency records and to order the production of any agency records improperly withheld”)
(emphasis added).
52 Id. § 552(f)(2)(A).
53 Forsham, 445 U.S. at 178. FOIA does define “record” (unmodified by “agency”). 5 U.S.C. § 552(f)(2). However,
that definition does not provide insight into the meaning of “agency record.” See id. (providing 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 subparagraph (A)
that is maintained for an agency by an entity under Government contract, for the purposes of records management”).
54 492 U.S. 136 (1989).
55 Id. at 144–45 (citations omitted).
56 Id. at 145.
57 See id. 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
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”).
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 ability to obtain materials, if not exercised, does not establish that
such materials are agency records.59 Further, FOIA does not require an agency to create agency
records in response to a FOIA request.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 Tax Analysts explained, “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.
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 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 Consumer

59 See 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
which have been in fact obtained, and not to records which merely could have been obtained”); cf. Burka, 87 F.3d at
515 (holding that data possessed by third-party were agency records where agency had “constructive control” of the
data). 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)
(holding that “[t]he Supreme Court’s teachings in Tax Analysts, Forsham, and Kissinger certainly do not compel
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 Kissinger v. Reporters Comm. for Freedom of the Press, 445
U.S. 136 (1980), that the fact that materials are physically located in an agency is not sufficient, alone, to render such
materials agency records. See id. 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 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 as an
‘agency record’ Kissinger’s personal books, speeches, and all other memorabilia stored in his office would have been
agency records subject to disclosure under the FOIA.”).
60 See 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
create”); Kissinger, 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”). 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 See 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
INFORMATION ACT, PROCEDURAL REQUIREMENTS, at 16 (Aug. 20, 2021) [hereinafter DOJ GUIDE, PROCEDURAL
REQUIREMENTS], https://www.justice.gov/oip/page/file/1199421/dl?inline.
62 Tax Analysts, 492 U.S. at 145 (citing Kissinger, 445 U.S. at 157).
63 CREW v. DHS, 527 F. Supp. 2d. 76, 88 n.15 (D.D.C. 2007); see DOJ GUIDE, PROCEDURAL REQUIREMENTS, supra
note 61, at 16.
64 Consumer Fed’n of Am. (CFA) v. USDA, 455 F.3d 283, 287 (D.C. Cir. 2006) (alterations, and citation omitted). The
CFA court cited Burka and Tax Analysts in a footnote when it explained the focus of the “totality of the circumstances”
test. See id. at 287 n.7 (citing Tax Analysts, 492 U.S. at 144–45; Burka, 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 a prior D.C. Circuit decision
with similar facts, Bureau of National Affairs, Inc. (BNA) v. DOJ, 742 F.2d 1484 (D.C. Cir. 1984). See CFA, 455 F.3d
at 288 (explaining that BNA “provides the template necessary to decide this case”). BNA preceded the Supreme Court’s
Tax Analysts decision and the D.C. Circuit’s use of the four-factor control test. The concurring opinion in CFA argued
that the Burka test, not BNA, “provide[d] a better guide to decide th[e] case.” Id. 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
7

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

Federation of America v. Department of Agriculture (USDA), the D.C. Circuit held that 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,” updated and
accessed daily, and maintained on the agency’s computer system.66 The court held that the
officials’ use of the calendars was the “decisive factor.”67 Specifically, the court found it
significant that the calendars were used to schedule agency operations and were distributed to
other agency staff and top officials.68 The court further determined that the electronic calendar of
a separate USDA official was not 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
depended on his calendar to conduct agency business.69
Although FOIA does not require the disclosure of personal records, issues may arise when agency
personnel use nonofficial electronic accounts to communicate.70 In Competitive Enterprise
Institute v. Office of Science & Technology Policy (OSTP),71 the requester sought “all
policy/OSTP-related email[s]” contained within the private email account of the director of
OSTP.72 A private entity maintained an account that the director used for work-related purposes.73
OSTP denied the request, asserting that the private entity (the director’s former employer)
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 CFA, 455
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
the circumstances’ test applied in CFA and BNA—rather than the [Burka] four-factor framework []—best fits this
case”).
65 CFA, 455 F.3d at 293.
66 Id. at 288–90.
67 Id. at 288.
68 Id. at 291. See Edelman, 172 F. Supp. 3d at 153 (explaining that the court found the “distribution” aspect of the “use”
factor in CFA and BNA, important because “distribution served as evidence that [the records] ‘were created for the
purpose of conducting agency business.’” (emphasis omitted) (quoting BNA, 742 F.2d at 1496)).
69 CFA, 455 F.3d at 293.
70 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.
2003 (2014). 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 “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
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.” Id. (codified at 44 U.S.C. § 2911(b)).
71 827 F.3d 145 (D.C. Cir. 2016).
72 Id. at 146 (citation omitted).
73 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 in nongovernmental electronic
accounts.77
“Any Person”
Lastly, FOIA directs agencies to disclose nonexempt agency records to “any person” upon
request.78 A “person” is defined as “an individual, partnership, corporation, association, or public
or private organization other than an agency.”79 Courts have held that, along with individuals,
organizational entities such as corporations 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

duplicates of emails located in his OSTP account.” Id. 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
in the director’s official OSTP email account. Id. at 22–23. Further, the court determined that OSTP conducted an
adequate search of the director’s official email account. Id. at 23, 24 (citation omitted).
77 See CEI, 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 head.... ”); Claudia Polsky, Open
Records, Shuttered Labs: Ending Political Harassment of Public University Researchers, 66 UCLA L. REV. 208, 271
(2019) (explaining that the Competitive Enterprise Institute court “held ... that the federal FOIA can reach private email
accounts where those accounts contain agency records”) (citing CEI, 827 F.3d at 146).
78 5 U.S.C. § 552(a)(3)(A). See infra Request-Driven Disclosure.
79 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
(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
‘individual, partnership, corporation, association, or public or private organization other than an agency’” (emphasis
omitted) (quoting 5 U.S.C. § 551(2))), aff’d, 601 F.3d 143 (2d Cir. 2010).
80 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
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
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].”). Cf.
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
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
disclosing agency records to foreign governmental entities or representatives thereof. 5 U.S.C. § 552(a)(3)(E) (citation
omitted); see All Party Parliamentary Grp. on Extraordinary Rendition v. U.S. 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
‘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”).
81 See 5 U.S.C. § 551(2) (defining “person” under the APA as “an individual, partnership, corporation, association, or
public or private organization other than an agency”) (emphasis added); cf. Ebling v. DOJ, 796 F. Supp. 2d 52, 62
(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)
(quoting 5 U.S.C. §§ 551(2), 552(a)(3)(A))).
82 See, e.g., 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); see also 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). However, under
the “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. See Maydack v. DOE, 150 F.
App’x 137 (3d Cir. 2005) (affirming district court’s dismissal of fugitive’s FOIA lawsuit under the fugitive
disentitlement doctrine); see also 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
(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 ... 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)
(citations omitted) (quoting Magluta v. Samples, 162 F.3d 662, 664 (11th Cir. 1998)). See DOJ GUIDE, PROCEDURAL
REQUIREMENTS, supra note 61, at 19 & n.90.
83 See 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.”); id. 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
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
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, 144 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
shared by the average member of the public”). See DOJ GUIDE, PROCEDURAL REQUIREMENTS, supra note 61, at 21–22.
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).
For information on FOIA fees, see CRS In Focus IF11272, Freedom of Information Act Fees for Government
Information, by Meghan M. Stuessy (2022).
84 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
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 citations omitted) (third alteration in original).
85 5 U.S.C. § 552(a)(1)–(2).
86 Id. § 552(a)(3)(A), 4(B). See supra “Agency Records” & “Any Person”
87 See 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”).
88 See DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, PROACTIVE DISCLOSURES 1 (Aug. 4,
2020) [hereinafter DOJ GUIDE, PROACTIVE DISCLOSURES], https://www.justice.gov/oip/foia-
guide/proactive_disclosures/dl?inline.
89 5 U.S.C. § 552(a)(1), (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:
(1) descriptions of agency organization and information regarding how, where, and
from whom “the public may obtain information, make submittals or requests, or
obtain decisions”;93
(2) information on how agency “functions are channeled and determined, including
the nature and requirements of all formal and informal procedures available”;94
(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
papers, reports, or examinations”;95
(4) “substantive rules of general applicability adopted as authorized by law,” as well
as agency “statements of general policy or interpretations of general
applicability”;96 and
(5) every “amendment, revision, or repeal of the foregoing.”97
FOIA imposes a penalty for an agency’s failure to publish the above information. It provides that
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 published” unless the affected party
received “actual and timely notice of the terms thereof.”98 In other words, an agency may not
enforce any material against an affected party that the agency did not publish in the Federal
Register as required under subsection (a)(1) 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 Id. § 552(a)(1)(E). See generally DOJ GUIDE, PROACTIVE DISCLOSURES, supra note 88, at 2.
98 Id. § 552(a)(1). See 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
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”).
99 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
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”); see Appalachian Power Co. v. Train, 566 F.2d 451, 455–56 (4th Cir.
1977); see also United States v. San Juan Lumber Co., 313 F. Supp. 703, 706–08 (D. Col. 1969) (holding that failure to
(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 was not a defense where the defendant had received actual notice of the Federal Trade
Commission’s resolution authorizing an investigation).
5 U.S.C. § 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
Federal Register.” (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 Federal Register, as long as
the Office of the Federal Register approves of the incorporation and the matter incorporated is “reasonably available.”
Id. This authorization is intended to effectuate Congress’s intent to ensure the Federal Register is “kept down to a
manageable size.” S. REP. NO. 1219, at 4 (1964); see also S. REP. NO. 813, at 6 (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 rather than too little.”). For more on
incorporation by reference, see Daniel J. Sheffner, Integrating Technical Standards into Federal Regulations:
Incorporation by Reference, in THE CAMBRIDGE HANDBOOK OF TECHNICAL STANDARDIZATION LAW: FURTHER
INTERSECTIONS OF PUBLIC AND PRIVATE LAW 108–23 (Jorge Contreras, ed., 2019).
100 See CREW v. DOJ, 846 F.3d 1235, 1240 (D.C. Cir. 2017) (“Our precedent makes clear that FOIA’s remedial
provision ... governs judicial review of ... requests for information under section[] 552(a)(1).... ”) (first ellipses in
original) (quoting Kennecott Utah Copper Corp. v. DOI, 88 F.3d 1191, 1202 (D.C. Cir. 1996)); Campaign for
Accountability v. DOJ, 278 F. Supp. 3d 303, 306 (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 withholding violates any one of
the statute’s ... disclosure requirements,” including the requirement contained in “section[] 552(a)(1)”); cf. 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 Analysts, 492 U.S. 136, 150 (1989), and 5
U.S.C. § 552(a)(4)(B)).
101 Kennecott, 88 F.3d at 1202–03.
102 Id. at 1203 (quoting 5 U.S.C. § 552(A)(4)(B)) (emphasis in original).
103 Id.
104 See supra text accompanying notes 98–99.
105 Kennecott, 88 F.3d at 1203.
106 See, e.g., 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
Amendments of 1996 (E-FOIA Amendments), Pub. L. No. 104-231, 110 Stat. 3048 (1996), which required agencies to
make subsection (a)(2) materials available “by electronic means,” the locations within agency websites housing (a)(2)
materials became known as “electronic reading rooms.” See Daniel J. Sheffner, Access to Adjudication Materials on
(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;109
(3) “administrative staff manuals and instructions to staff that affect a member of the
public”;110
(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
subsequent requests for substantially the same records” due to the nature of the
records’ subject or (b) “have been requested 3 or more times”;111 and
(5) indexes of such previously released records.112
The 1966 House report accompanying 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 agencies,” information that the report described as constituting “the bureaucracy[’s]
... own form of case law.”113 In that vein, the Supreme Court has explained that FOIA’s second
affirmative disclosure provision “represents a strong congressional aversion to ‘secret [agency]
law.’”114 Materials subject to subsection (a)(2) are now generally made accessible on agency

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. Subsection (a)(2)
authorizes agencies to “delete identifying details” from (a)(2) materials in order “to prevent a clearly unwarranted
invasion of personal privacy.” Id. An agency must generally explain its reason for doing so and indicate “the extent of
such deletion ... on the portion of the record which is made available or published.” See id. (“[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
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
deletion shall be indicated at the place in the record where the deletion was made.”).
113 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
materials listed above). See An Act to amend section 3 of the Administrative Procedure Act, Pub. L. No. 89-487, 80
Stat. 250, 250–51 (1966). The previously-requested-records requirement and the related index requirement pertaining
to such records, see 5 U.S.C. § 552(a)(2)(D)–(E), were added to FOIA in 1996. See E-FOIA Amendments, Pub. L. No.
104-231, § 4, 110 Stat. at 3049 (1996). The “requested 3 or more times” prong of § 552(a)(2)(D) was added in 2016.
See FOIA Improvement Act of 2016, Pub. L. No. 114-185, § 2, 130 Stat. 538, 538 (2016).
114 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)).
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 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.117
As with (a)(1) materials,118 FOIA authorizes judicial review of challenges to the availability of
materials subject to disclosure under subsection (a)(2).119 Courts do not appear to agree, however,
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
production of records to individual complainants.120
Request-Driven Disclosure
Under FOIA’s third system of disclosure, agencies must disclose covered records not “made
available under” the affirmative disclosure provisions, discussed above, on a case-by-case basis
after receiving a request.121 As discussed below, FOIA imposes certain procedural requirements
on requesters and agencies in making and responding to requests 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); see supra Publication in the Federal Register.
119 See CREW v. DOJ, 846 F.3d 1235, 1240 (D.C. Cir. 2017) (“Our precedent makes clear that FOIA’s remedial
provision ... governs judicial review of ... requests for information under section[] 552(a) ... (2).... ”) (first ellipses in
original)(quoting Kennecott Utah Copper Corp. v. DOI, 88 F.3d 1191, 1202 (D.C. Cir. 1996)).
120 Compare id. at 1243 (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]
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)) with 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
post records in an online reading room” under § 552(a)(2)).
121 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
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
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)). The meaning of “agency records” under FOIA is discussed above. See supra “Agency Records”.
122 See generally DOJ GUIDE, PROCEDURAL REQUIREMENTS, supra note 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] 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
effort.”126 Second, a FOIA request must comply with the agency’s “published rules stating the
time, place, fees (if any), and procedures to be followed.”127
If a requester submits a valid request, an agency must execute an “adequate” or “reasonable”
search.128 This standard requires that an agency conduct a search that is “reasonably calculated to
uncover all relevant documents.”129 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
search for responsive documents was adequate.”130 FOIA also states that agencies must “make
reasonable efforts to search for ... records in electronic form or format,” unless doing so “would
significantly interfere with the operation of the agency’s automated information system.”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); see 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)) (same). Relatedly, courts
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. 1990) (quoting Goland v. CIA 607
F.2d 339, 353 (D.C. Cir. 1978)); see DOJ GUIDE, PROCEDURAL REQUIREMENTS, supra note 61, at 52 (stating that
“courts have held that the FOIA does not require agencies to conduct ‘unreasonably burdensome’ searches for
records”).
127 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. See, e.g., Memorandum, Stephen W. Warren, Executive in Charge and 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
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]”).
128 See Hamdan v. DOJ, 797 F.3d 759, 770 (9th Cir. 2015); 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
an adequate search for responsive records.”).
129 Hamdan, 797 F.3d at 770; see Edleman, 172 F. Supp. 3d at 144.
130 Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (per curiam); cf. In re Clinton, 970 F.3d 357, 367 (D.C. Cir.
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 document does not alone render a search
inadequate.”) (citations omitted).
131 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
(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
the agency in that form or format.”).
132 DOJ, Office of Info. Pol’y, FOIA Update: Congress Enacts FOIA Amendments (Jan. 1, 1996),
https://www.justice.gov/oip/blog/foia-update-congress-enacts-foia-amendments.
133 See 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,” inter alia, “established timetables for agencies to respond
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.
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
expedited processing of requests,” id. § 552(a)(6)(c). Agencies must also develop regulations governing fees for
processing requests, including in regard to “when such fees should be waived or reduced.” Id. § 552(a)(4)(A).
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 ... to seek
assistance from the FOIA Public Liaison of the agency,” as well as “to seek dispute resolution services from the
[agency’s] FOIA Public Liaison ... or the Office of Government Information Services.” Id. § 552(a)(6)(A)(i)(II)-(III).
The twenty-day period does not include Saturdays, Sundays, or public holidays. Id. § 552(a)(6)(A)(i). An agency is
authorized to toll this period in certain circumstances. See id. § 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 ... await[s] such information that it has
reasonably requested from the requester”); id. § 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”).
135 5 U.S.C. § 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”:
(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;
(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
(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
agency having substantial subject-matter interest therein.
Id. § 552(a)(6)(B)(iii).
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
complete its review of [its] records” if “exceptional circumstances exist and ... 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 limitless
term. FOIA states that the term “does not include a delay that results from a predictable agency workload of 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 time frame is “a factor in
determining whether exceptional circumstances exist.” Id. § 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 Open America v. Watergate Special Prosecution
Force, 547 F.2d 605 (D.C. Cir. 1976). In Open America, the court held that “‘exceptional circumstances exist,’” and
therefore a stay is warranted under subsection (a)(6)(C), “when an agency ... 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 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” after it indicates the
scope of the records it will disclose and the exemptions it will invoke.138
Appeals and Exhaustion of Administrative Remedies
A requester who receives an adverse determination may appeal the determination within the
agency.139 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
by ten days for unusual circumstances.140 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
agency withholding decisions.141 Judicial review can proceed if the requester remains
dissatisfied.142
Before challenging an agency’s nondisclosure decision in federal court, a requester 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
deadline for the underlying determination, and simply requires that the ensuing production of records be made to the
requester ‘promptly’ thereafter”).
139 5 U.S.C. § 552(a)(6)(A). Within twenty (or, in the event of unusual circumstances, thirty) days of receiving a proper
request, 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 adverse determination,” id. §
552(a)(6)(A)(i), (B)(i), (a)(6)(A)(i)(III)(aa).
140 Id. § 552(a)(6)(A)(ii), (B)(i). The same unusual circumstances listed above in relation to initial determinations, see
discussion and sources supra note 135, apply in the case of administrative appellate determinations, see id. §
552(a)(6)(B)(i), (iii).
141 Id. § 552(a)(6)(A)(ii).
142 See infra FOIA-Related Litigation: Selected Issues.
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 FOIA reflects this desire by
exempting a variety of records and information from mandatory disclosure pursuant to nine
enumerated exemptions.148 Information protected by FOIA’s exemptions ranges from certain
classified national security information to geological information pertaining to wells.149 Together,
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
confidence to the extent necessary without permitting indiscriminate secrecy.”150
FOIA’s exemptions are codified at 5 U.S.C. § 552(b). Table 1 lists each exemption. All nine
exemptions are explained more fully below.
Table 1. FOIA Exemptions
5 U.S.C. § 552(b)(1)-(9)
Exemptions
Text of Exemptions
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. § Matters that are ... related solely to the internal personnel
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 U.S.C.
§ 552(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
subject to both FOIA’s request-driven and affirmative disclosure provisions. See 3 KRISTIN E. HICKMAN & RICHARD J.
PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 21.2, at 2185 (6th ed. 2019) [hereinafter 3 HICKMAN & PIERCE, JR.].
148 5 U.S.C. § 552(b)(1), (9). In certain circumstances, agencies “may refuse to confirm or deny the 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 original) (quoting 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); Abramson, 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
specific exemptions under which disclosure could be refused”).
150 John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quoting H.R. REP. NO. 1497, at 6 (1966)); cf.
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 government or the economy if the
information were released.”).
Congressional Research Service
18

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

Exemptions
Text of Exemptions
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 ... trade secrets and commercial or
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.
Matters that are ... inter-agency or intra-agency memoranda
§ 552(b)(5)).
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)).
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)).
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. §
Matters that are ... contained in or related to examination,
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)).
Matters that are ... geological and geophysical information
and data, including maps, concerning wells.
Source: 5 U.S.C. § 552(b)(1)–(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 portion of a record” that has been requested “after deletion of the portions
which are exempt.”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 agencies, and pursuant to the 2016 amendments to
FOIA,155 an agency may not withhold government information protected by an exemption unless
it “reasonably foresees that disclosure would harm an interest protected by an exemption” or if
disclosing the information is legally prohibited.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 implementation of the
statute’s prodisclosure mandate.
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
an applicable exemption.158 In American Immigration Lawyers Association v. Executive Office for
Immigration Review,159 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 “non-
responsive,” but instead is limited by FOIA’s nine exemptions in the types of information it may
redact.160 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 request,
the statute compels disclosure of the responsive record ... as a unit.”161 Thus, per the 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 disclosure of a
responsive record, not disclosure of responsive information within a record.”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,
shall be indicated on the released portion of the record, unless including that indication would harm an interest
protected by the exemption ... 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
deletion is made.”).
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 (2016).
156 Id. § 2(1), 130 Stat. at 539 (codified at 5 U.S.C. § 552(a)(8)(A)(i)(I)–(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
under FOIA.163 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
covered information.164 An agency’s disclosure of information protected by an Exemption 3
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
certain confidential “commercial or financial information” and trade secrets,165 the Trade Secrets
Act (TSA)166 imposes criminal penalties for disclosing certain confidential materials if disclosure
is not “authorized by law.”167 Thus, while Exemption 4 grants agencies discretion to withhold
information covered by both the exemption and the TSA, the TSA prohibits the unauthorized
disclosure of the information.168 Ultimately, however, if records within FOIA’s coverage are not
exempt under FOIA or prohibited from being disclosed by another law, an agency must disclose
such records upon request.169
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.
Circuit has “held ... 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
domain.’”170 Courts have often 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.171

163 See DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, WAIVER AND DISCRETIONARY
DISCLOSURE 15–16 (Aug. 31, 2022) [hereinafter DOJ GUIDE, WAIVER AND DISCRETIONARY DISCLOSURE],
https://www.justice.gov/d9/pages/attachments/2019/08/27/waiver_and_discretionary_disclosure_final.pdf. See 5 U.S.C.
§ 552(b)(3)(A)(i).
164 See 5 U.S.C. § 552(b)(3). Exemption 3 is discussed below. See infra Exemption 3: Matters Exempted by Other
Statutes.
165 5 U.S.C. § 552(b)(4). Exemption 4 is discussed below. See infra Exemption 4: Trade Secrets and Commercial or
Financial Information.
166 18 U.S.C. § 1905.
167 Id.
168 See Chrysler Corp. v. Brown, 441 U.S. 281, 291–94, 318–19 (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.
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 Food Marketing Institute (FMI) v. Argus Leader
Media, 139 S. Ct. 2356 (2019). See, e.g., 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-
preliminary-assessment-part-ii/.
169 Cf. 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
made available on demand to any member of the general public.”).
170 Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (citations omitted); see also 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-
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.”); 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 ... the government waives any claim that the information is exempt from
disclosure under the deliberative process privilege [of FOIA’s Exemption 5].”).
171 See, e.g., 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
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
in [5 U.S.C. § 552(d)] the right to receive information not available to the general public, and actually does receive
(continued...)
Congressional Research Service
21

link to page 25 link to page 25 link to page 15 The Freedom of Information Act (FOIA): A Legal Overview

Whether an agency has waived an exemption is necessarily dependent on “the specific nature and
circumstances of the prior disclosure.”172
Exemption 1: National Defense or Foreign Policy
The first FOIA exemption authorizes agencies to withhold certain matters that pertain to “national
defense or foreign policy.”173 Exemption 1 allows an agency to withhold information 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 classified
pursuant to such Executive order.”174 This exemption reflects Congress’s interest in maintaining
the confidentiality of information implicating national defense and security.175 As the text makes
clear, however, not all national-security-related information may be withheld under Exemption 1.
Instead, only those national defense or foreign policy matters that have been properly classified
through an applicable executive order are covered.176
At present, Executive Order 13,526 primarily governs the classification of national security
information by the executive branch.177 The executive order prescribes the procedures for
classifying national security information and lists the categories of information to which the order
applies, which include “military plans, weapons systems, or operations”; “scientific,
technological, or economic matters relating to ... national security”; and “United States
Government programs for safeguarding nuclear materials or facilities.”178 Information that an
agency seeks to withhold from disclosure under Exemption 1 must satisfy the substantive and
procedural requirements contained in Executive Order 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
large.”); see also 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
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, supra note 163, at 10
(“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.”); but see, e.g., Dow Jones, 917
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,
“[f]or that reason, we do not think that [DOJ’s] letter to the House Ethics Committee can be withheld under Exemption
5.”).
172 DOJ GUIDE, WAIVER AND DISCRETIONARY DISCLOSURE, supra note 163, at 1.
173 5 U.S.C. § 552(b)(1).
174 Id.
175 See Clark, supra note 92, at 298; Lyndon B. Johnson, Statement by the President Upon Signing S. 1160 (July 4,
1966).
176 5 U.S.C. § 552(b)(1).
177 DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 1, at 3 (Mar. 4, 2021)
[hereinafter DOJ GUIDE, EXEMPTION 1], https://www.justice.gov/media/1128106/dl?inline.
178 See, e.g., 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
applies to information that has been classified pursuant to an applicable executive order, Executive Order No. 13526
specifically authorizes agencies to classify or reclassify, as the case may be, previously undisclosed information upon
receipt of a FOIA request. Id. § 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
branch official specified in the executive order and comply with the executive order’s requirements. Id.
179 See Shoenman v. FBI, 575 F. Supp. 2d 136, 151–52 (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
(continued...)
Congressional Research Service
22

link to page 26 The Freedom of Information Act (FOIA): A Legal Overview

Exemption 2: Internal Personnel Rules and Practices
Exemption 2 authorizes agencies to withhold from disclosure information that is “related solely to
the internal personnel rules and practices of an agency.”180 The Supreme Court has held that
“personnel rules and practices” under Exemption 2 are those that address “employee relations or
human resources.”181 This exemption covers rules and practices pertaining to “hiring and firing,
work rules and discipline, [and] compensation and benefits.”182 To fall under Exemption 2,
information must pertain “exclusively or only” to personnel rules and practices,183 and, as the
Supreme Court has explained, an “agency must typically keep [such] records to itself for its own
use.”184
For years, many courts interpreted this provision to cover not only the employee relations and
humans resources information described above but also records that were predominantly internal
and the release of which would “significantly risk[] circumvention of agency regulations or
statutes.”185 In Milner v. Department of the Navy, however, the Supreme Court held that this
broad view of Exemption 2 contravened the plain meaning of “personnel rules and practices”—
which the Court read as applying only to employee relations and human resources 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
order].”); H.R. REP. NO. 1380, at 11–12 (1974) (Conf. Rep.); S. REP. NO. 1200, at 11–12 (1974) (Conf. Rep.); see also
DOJ GUIDE, EXEMPTION 1, supra note 177, at 1–2.
180 5 U.S.C. § 552(b)(2).
181 Milner v. Dep’t of Navy, 562 U.S. 562, 570 (2011); see also id. 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
relations and human resources”).
182 Id. at 570.
183 Id. at 570 n.4 (defining the “related solely” element of Exemption 2).
184 Id. (defining the “internal” element of Exemption 2).
185 Milner, 562 U.S. at 588 (explaining that many courts embraced a bifurcated reading of Exemption 2 that protected
both “materials concerning human resources and employee relations, and ... records whose disclosure would risk
circumvention of the law”); Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981),
(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 from
mandatory disclosure”), abrogated by Milner, 562 U.S. 562. The first category of information was protected by what
courts referred to as the “Low 2” component of Exemption 2. See Milner, 562 U.S. at 567 (explaining that “the ‘Low 2’
exemption” referred to “materials concerning human resources and employee relations”); see also Schiller v. N.L.R.B.,
964 F.2d 1205 (D.C. Cir. 1992), (explaining that “[p]redominantly internal documents that deal with trivial
administrative matters fall under the ‘low 2’ exemption”), abrogated by Milner, 562 U.S. 562. The second was
protected by the exemption’s so-called High 2 component. See Milner, 562 U.S. at 567; see also Schiller, 964 F.2d at
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.”), abrogated by Milner, 562 U.S. 562. See DOJ, OFFICE
OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 2, at 4–5 (June 12, 2023)
https://www.justice.gov/d9/2023-06/06.12.23._-_exemption_2.pdf.
186 Milner, 562 U.S. 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 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 agencies to withhold information if it is “specifically exempted
from disclosure by” a non-FOIA statute.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 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, such as visa determinations,191
drug pricing data,192 patent applications,193 and tax returns.194
Congress, however, did not intend for Exemption 3 to apply to every statute that authorizes or
requires the withholding of information.195 Congress limited the exemption’s coverage to two
particular categories of statutes “to assure,” as the D.C. Circuit has concluded, “that basic policy
decisions on governmental secrecy be made by the Legislative rather than the Executive
branch.”196 The first category of laws that qualify under Exemption 3 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); cf. 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
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).
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
statute and the inclusion of withheld material within that statute’s coverage.”).
191 See 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
that § 1202(f) is an Exemption 3 withholding statute).
192 See 42 U.S.C. § 1396r-8(b)(3)(D).
193 See 35 U.S.C. § 122(a); see also Irons & Sears v. Dann, 606 F.2d 1215, 1220–21 (D.C. Cir. 1979) (holding that
§ 122 is an Exemption 3 withholding statute).
194 See 26 U.S.C. § 6103(a); see also Adamowicz v. IRS, 402 F. App’x 648, 652 (2d Cir. 2010) (holding information
exempt under Exemption 3 and § 6103(a)).
195 H.R. REP. NO. 1441, at 14 (1976) (Conf. Rep.).
196 Am. Jewish Cong. v. Kreps, 574 F.2d 624, 628 (D.C. Cir. 1978). The conference report accompanying the 1976
amendments to FOIA, which imposed the limitations to Exemption 3 discussed in this paragraph, see infra text
accompanying notes 197–202, 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). See 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
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 in the interest of the public.” 49 U.S.C. § 1504 (1976)
(quoted in Robertson, 422 U.S. at 258 n.4 (emphasis added)). The Robertson Court held that Section 1104, with its
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
statute enacted after the date of the OPEN FOIA Act of 2009203 must “specifically cite[] to” the
exemption to qualify as an Exemption 3 withholding statute.204 Accordingly, courts have held that
statutes enacted after October 28, 2009, that fail to cite Exemption 3 do not qualify as exemption
statutes under FOIA, even if they would otherwise fall within the first two categories described
above.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); see 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 disclosure”).
200 Kreps, 574 F.2d at 628; cf. 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”).
201 Legal & Safety Emp. Rsch., Inc. v. U.S. Dep't of the Army, No. CIV.S001748WBS/JFM, 2001 WL 34098652 (E.D.
Cal. May 4, 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 exercise of that
discretion”) (citing Long v. IRS, 742 F.2d 1173, 1178 (9th Cir. 1984)); see also O’REILLY, supra note 22, § 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 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 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
statutes, see DOJ GUIDE, EXEMPTION 3, supra note 198, at 26–44.
202 Cf. 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 and that the records that have been
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.
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
scope.”).
203 Pub. L. No. 111-83, 123 Stat. 2184 (2009).
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
the OPEN FOIA Act of 2009” if it “specifically cites to this paragraph”).
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, preparing,
compounding, or processing of trade commodities and that can be said to be the end product of
either innovation or substantial effort.”210
Courts have interpreted the exemption to cover a broad range of information, allowing, for
example, agencies to exempt as trade secrets “documents contain[ing] information consisting of
drug product manufacturing information, including manufacturing processes or drug chemical
composition and specifications,”211 as well as “information regarding the quantities of menthol
contained in cigarettes by brand and by quantity in each brand and subbrand.”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); accord Anderson v. HHS, 907
F.2d 936, 943–44 (10th Cir. 1990). In Public Citizen Health Research Group, 704 F.2d at 1288, the D.C. Circuit
rejected the argument that FOIA adopted the Restatement (First) of Torts’ definition of “trade secret.” That definition
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
it.” RESTATEMENT (FIRST) OF TORTS § 757 cmt. b (1939). The court held that “the broad Restatement approach ... [is]
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 Restatement “renders
meaningless the second prong of Exemption 4,” and (3) the Restatement’s definition “is ill-suited for the public law
context in which FOIA determinations must be made.” Pub. Citizen Health Research Grp., 704 F.2d at 1288–89.
Accordingly, the court’s basis for finding that the Restatement’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
the term “confidential” under Exemption 4 included, under the test then in use by the D.C. Circuit, information whose
disclosure was “likely ... to cause substantial harm to the competitive position of the person from whom [] information
was obtained.” Nat'l Parks & Conservation Ass'n v. Morton, 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). It is worth noting that, as 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). See infra text accompanying notes 219–221.
211 Appleton v. FDA, 451 F. Supp. 2d 129, 141 (D.D.C. 2006).
212 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

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
meaning of Exemption 4.217
Prior to 2019, the leading test for determining the meaning of “confidential” under the exemption
was developed by the D.C. Circuit in National Parks & Conservation Association v. Morton.218
Under the National Parks test, commercial or financial information was deemed confidential “if
disclosure of the information [was] likely ... (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
the person from whom the information was obtained.”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

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.”).
Though the term “confidential” has been subject to considerable litigation, considerably less litigation has focused on
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.
2017) (noting that “case law examining privilege under Exemption 4 is sparse”) (citation omitted). The district court in
Jordan 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 privileges.” Id. (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. See e.g., id. at 231–32; 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. See, e.g., H.R. 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 Government lending or loan guarantee agency”); accord 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 Exemption 5. See infra Exemption 5: Inter- or Intra-Agency Memoranda or
Letters.
217 See DOJ GUIDE, EXEMPTION 4, supra note 213, at 13.
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. at 770 (footnote omitted). In Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871
(D.C. Cir. 1992) (en banc), the D.C. Circuit limited the National Parks test to situations in which entities were
obligated to provide commercial or financial information to an agency, id. at 879. If a submitter had voluntarily
provided the government with financial or commercial information, the Critical Mass court held that such information
“is ‘confidential’ ... if it is of a kind that would customarily not be released to the public by the person from whom it
was obtained.” Id. at 879. Critical Mass was not widely accepted outside of the D.C. Circuit. See Petition for a Writ of
Certiorari at 28, FMI v. Argus Media Leader, No. 18-481 (S. Ct. Oct. 11, 2018) (asserting that, “[t]o date, the
voluntary/involuntary Critical Mass test has been adopted by the D.C. and Tenth Circuits”).
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 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.222 The Supreme
Court, however, did not define the precise boundaries of its new test in FMI; although the Court
determined 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 private in order for information to 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
available by law to a party other than an agency in litigation with the agency.”226 The 1966 House
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
based on the proposition that requiring an agency to release information prior to finalizing an
action or decision would hinder its ability to effectively function.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 See CRS Legal Sidebar LSB10294, When Does the Government Have to Disclose Private Business Information in
its Possession?, by Daniel J. Sheffner, at 1 (2019).
223 FMI, 139 S. Ct. at 2363.
224 Id.
225 Id.
226 5 U.S.C. § 552(b)(5). As discussed below, infra text accompanying note 254. Exemption 5 also provides that the
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).
227 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
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
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.”); accord S. REP. NO. 813, at 9 (1965).
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 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 in mind”
and sought “a Government benefit at the expense of other applicants.”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
discovery, it would not “be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance” in
litigation against the agency.238 Accordingly, agency materials that would be routinely or normally
disclosed in such contexts are not covered by the exemption.239 That a record must be disclosed in
discovery upon a sufficient showing of need does not remove the record from Exemption 5’s

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. 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; 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.”).
239 Cf. 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 DOJ v.
Julian, 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
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 no privilege preventing disclosure” of such reports to the subjects thereof, id. at
12–15.
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 privilege not expressly listed in the
legislative history and considered “novel” or having “less than universal acceptance” would be
less likely to fall within Exemption 5’s scope.243
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,
including the privileges discussed below.
Deliberative Process Privilege
The deliberative process privilege is recognized as a component of the more general “executive
privilege.”244 The Supreme Court has explained that the deliberative process privilege applies to
agency “advisory opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.”245 The privilege protects agency
records that are “predecisional”246 (i.e., they predate an agency decision)247 and “deliberative”
(i.e., they reflect “the give-and-take of the consultative 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 Federal Open Market
Committee of the Federal Reserve System v. Merrill, 443 U.S. 340 (1979), held “that a privilege that was mentioned in
the legislative history of Exemption 5 is incorporated by the Exemption—not that all privileges not mentioned are
excluded”).
243 Id. at 801; see 3 HICKMAN & PIERCE, JR., supra note 147, § 21.11, at 2219 (explaining that the Weber “Court noted
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 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
privilege for “research data ... 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. Id. at 521.
244 Sears, 421 U.S. at 149 (citing Mink, 410 U.S. at 86–87). For a discussion of executive privilege in the context of
congressional oversight, see CRS Report R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance,
by Todd Garvey, at 20–25 (2019).
245 Klamath, 532 U.S. at 8 (quoting Sears, 421 U.S. at 150).
246 See Sears, 421 U.S. at 151.
247 See Pub. Citizen v. OMB, 598 F.3d 865, 874 (D.C. Cir. 2009).
248 Id. (internal 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
“communications in performance of [a President’s] responsibilities, of his office, and made in the
process of shaping policies and making decisions.”256 The D.C. Circuit has held that the privilege
also protects “communications authored or received in response to ... solicitation[s] by” senior
White House advisers “in the course of gathering information and preparing recommendations on
official matters for presentation to the President,”257 as well as records “authored or solicited and
received by ... 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
on a particular matter.”258 Unlike the deliberative process privilege, the presidential
communications privilege “applies to documents in their entirety, and covers final and post-
decisional materials as well as pre-deliberative ones.”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 (quoting Espy, 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 agency expressly adopted or
incorporated by reference into a final opinion. See Samahon v. DOJ, No. 13-6462, 2015 WL 857358, at *13 (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] ... 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)); but see Advocates for the West ... [B]ecause the ... the
presidential communications privilege applies, there ... is no need to 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 by the D.C. Circuit, “the ‘client’ may be
the agency and the attorney may be an agency lawyer.”262 The privilege does not cover
information “adopted as, or incorporated by reference into, an agency’s policy.”263
Attorney Work-Product Privilege
In the context of Exemption 5, the attorney work-product privilege embraces “materials ‘prepared
in anticipation of litigation ... ’” by an agency.264 The privilege serves to protect and maintain an
effective adversarial litigation system.265 While 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 under Exemption 5 even if the litigation for
which the materials were prepared has since ended.266 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 litigation.267 It was also based on the fact
that, generally, federal judicial decisions regarding Rule 26 “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 whether other related litigation is pending or is
contemplated.”268 The court explained that, because “Exemption 5 incorporates the privileges
which the Government enjoys under the relevant 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 Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997); see also Confidentiality of the Attorney General’s
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
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.”).
263 La Raza, 411 F.3d at 360.
264 Tax Analysts, 117 F.3d at 620 (quoting FED. R. CIV. P. 26(b)(3)); PIERCE, JR., supra note 150, at 389. Courts have
held that records produced in anticipation of administrative litigation are embraced by the privilege. See 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 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)).
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
... is ... 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., The
Work Product Doctrine, 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”).
266 462 U.S. 19, 26–28 (1983).
267 See FED. R. CIV. P. 26(b)(3).
268 Grolier, 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 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 extent that this
information is generated by the Government itself in the process leading up to awarding a
contract.”272
Exemption 6: Personnel, Medical, and Similar Files
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.”273
Federal agencies maintain a large amount of information about individuals, such as health and
medical records,274 criminal records,275 home addresses,276 Social Security numbers,277 and a
variety of other types of personal information.278 Exemption 6 helps shield “individuals from the
injury and embarrassment” that may stem from the disclosure of personal information maintained

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
information submitted to the federal government by individuals or entities from outside the federal government,
however, is the subject of Exemption 4. See supra Exemption 4: Trade Secrets and Commercial or Financial
Information.
273 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. See id. § 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
“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
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.
274 See, e.g., 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).
275 See, e.g., DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (FBI “rap sheet” on private
individual).
276 See, e.g., DOD v. Fed. Labor Relations Auth., 510 U.S. 487 (1994) (home addresses of certain federal employees).
277 See, e.g., Coleman v. Lappin, 680 F. Supp. 2d 192 (D.D.C. 2010) (social security numbers of Bureau of Prisons
employees).
278 See 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
that these files should not be opened to the public”); accord H.R. REP. NO. 1497, at 11 (1966).
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
containing identifying information of Haitian citizens would violate Exemption 6).
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
exemption has not been extended to protect the privacy interests of businesses or corporations”). In FCC v. AT&T, 562
U.S. 397 (2011), the Supreme Court held that Exemption 7(C)’s protection of “personal privacy” did not apply to
corporations. Id. at 409–10. 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
have regularly referred to that exemption as involving an ‘individual’s right of privacy.’” Id. at 407–08 (quoting Ray,
502 U.S. at 175). That said, the D.C. Circuit has held that “Exemption 6 applies to financial information in business
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, 1228–29 (D.C. Cir. 2008)
(quoting Kleppe, 547 F.2d at 685).
282 5 U.S.C. § 552(b)(6); see DOJ, OFFICE OF INFO. POL’Y, GUIDE TO THE FREEDOM OF INFORMATION ACT, EXEMPTION 6,
at 4 (Aug. 19, 2022) [hereinafter DOJ GUIDE, EXEMPTION 6] https://www.justice.gov/media/1027586/dl?inline.
283 Wood v. FBI, 432 F.3d 78, 86 (2d Cir. 2005) (quoting Wash. Post. Co., 456 U.S. at 600); see also 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 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 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 personnel
department itself), frequently thus excluding even the individual himself”) (internal citation omitted).
284 Wash. Post. Co., 456 U.S. at 600, 602; see also id. (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.
1497, at 11 (1966)).
285 Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989).
286 Wash. Post. Co., 456 U.S. at 602.
287 See, e.g., Phillips v. ICE, 385 F. Supp. 2d 296, 304 (S.D.N.Y. 2005); see also Cook v. Nat’l Archives & Records
Admin., 758 F.3d 168, 174–75 (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
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).
288 Rural Hous. All. v. USDA, 498 F.2d 73, 77 (D.C. Cir. 1974).
289 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,
496 (1994) (emphasis omitted) (quoting Reporters Comm., 489 U.S. at 771).
290 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.” Fed. Labor Relations Auth., 510 U.S. at 500 (citation and
alteration omitted). In National Archives and Records Administration v. Favish, 541 U.S. 157 (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 protections extended to
the privacy interests of the close relatives of a record’s subject. 541 U.S. at 161, 168, 171. Exemption 7(C) contains
similar invasion-of-privacy language as Exemption 6. See infra “Exemption 7: Law Enforcement Records or
Information.” See also Clark, supra note 92, at 305 (explaining that Exemption 6 was designed to exempt “all
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 the family of the person
to whom the information pertains”).
291 Fed. Labor Relations Auth., 510 U.S. at 495 (quoting DOJ v. Reporters Comm. 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 legislative history indicates that
Congress understood Exemption 6 to require a balancing of private and public interests. See 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
between the protection of an individual’s right of privacy and the 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 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 information”).
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
Admin., 758 F.3d 168, 175–76 (2d Cir. 2014); Multi AG Media LLC v. USDA, 515 F.3d 1224, 1229–30 (D.C. Cir.
2008); see DOJ GUIDE, EXEMPTION 6, supra note 282, at 9–10. The necessary privacy interest for the Exemption 6
balancing analysis has also been described as one that is “significant,” see Multi AG Media, 515 F.3d at 1229 (citation
omitted), or “nontrivial,” see Cameranesi v. DOD, 856 F.3d 626, 637 (9th Cir. 2017).
293 Fed. Labor Relations Auth., 510 U.S. at 495 (emphasis omitted) (quoting Reporters Comm, 489 U.S. at 777); see
also id. 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 its statutory duties’ or otherwise
let citizens known ‘what their government is up to’” (quoting Reporters Comm, 489 U.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 v. Rose, 425 U.S. 352, 372 (1976)
(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] ‘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), aff’d, 425 U.S. 352)).
In National Archives and Records Administration v. Favish, the Supreme Court construed Exemption 7(C) so that a
requester must “establish a sufficient reason for ... 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
the information for its own sake,” and (2) that “the information is likely to advance that interest. Otherwise, the
invasion of privacy is unwarranted.” Id. 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
reasonable person that the alleged Government impropriety might have occurred,” a showing requiring “more than a
bare suspicion.” Id. at 174.
294 See, e.g., Fed. Labor Relations Auth., 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
disclosure, we conclude that disclosure would constitute a ‘clearly unwarranted invasion of personal privacy’” and that
(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
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
case.”296
To qualify as exempt under Exemption 7, a record must have been “compiled” for law
enforcement purposes.297 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
applies if material was subsequently gathered for law enforcement purposes, prior to the agency’s
response to the FOIA request.298 Further, the Court has held that material that an agency originally
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-
enforcement purpose.”299 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
at some time before the agency invokes the exemption.”300
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
functions.301 Further, the exemption not only applies to agencies that primarily engage in law

“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
would effectuate one or more of ... six specified harms.” (quoting 5 U.S.C. § 552(b)(7))). Exemption 7 is not limited to
investigative records. See 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, see 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,’
so that protection is now available to all ‘records or information compiled for law enforcement purposes.’” Abdelfattah
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. No. 99-570, § 1802, 100 Stat. 3207, 3207–48 (1986).
296 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978).
297 5 U.S.C. § 552(b)(7).
298 John Doe Agency, 493 U.S. at 155.
299 FBI v. Abramson, 456 U.S. 615, 631–32 (1982).
300 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.).
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/dl?inline; see, e.g., Stein 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
compiled for civil, administrative, and criminal matters.”) (citing Tax Analysts, 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
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”) (citation omitted); see also
Milner v. Dep’t of Navy, 562 U.S. 562, 582–83 (2011) (Alito, J., concurring) (writing that “[t]he ordinary
understanding of law enforcement includes not just the investigation and prosecution of offenses that have 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 enforcement
efforts in our Nation”).
302 See, e.g., Tax Analysts, 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
“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
seek to avoid disclosure of records or information pursuant to Exemption 7”); id. (writing that “the District Court
[below] correctly identified IRS as a mixed-function agency”). See Margaret Kwoka, Deferring to Secrecy, 54 B.C. L.
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
exemption.”) (citing Tax Analysts, 294 F.3d at 77).
303 See 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
for law enforcement purposes. See Jordan v. DOJ, 668 F.3d 1188, 1193–94 (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
Appeals for the Third Circuit, “an agency ... 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
least a colorable claim of the relationship’s rationality.” Abdelfattah, 488 F.3d at 186. The rational nexus test was first
articulated by the D.C. Circuit in Pratt v. Webster. See 673 F.2d at 420–21 (holding, prior to the 1986 amendments that
broadened Exemption 7 to embrace noninvestigatory records, see discussion and sources supra note 295, that an
agency must establish that the “investigatory activities that give rise to the documents sought ... 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 enforcement duties ... [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 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) (citation omitted). However,
courts often require a more rigorous showing from mixed-function agencies that the information being withheld was
compiled for law enforcement purposes. See, e.g., Tax Analysts, 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
v. IRS, No. 04-2187, 2006 WL 2425523, at *7 (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 information
was compiled for law enforcement purposes.”). See DOJ GUIDE, EXEMPTION 7, supra note Error! Bookmark not d
efined., at 17–21.
304 See 5 U.S.C. § 552(b)(7)(A)–(F).
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, have established 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 targets of
the investigation already possess.”309
Exemption 7(B)
Exemption 7(B) applies where disclosure of law enforcement records “would deprive a person of
a right to a fair trial or an impartial adjudication.”310 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 probable than not that disclosure ... would seriously interfere with the
fairness of those proceedings.”311 The D.C. Circuit has held that, as to a disclosure’s effect on the
fairness of proceedings, courts must examine “the significance of any alleged unfairness in light

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), https://www.justice.gov/oip/page/file/1197816/download.
308 NLRB v. Tire & Rubber Co., 437 U.S. 214, 224 (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
their investigations or placed at a disadvantage when it came time to present their cases.”).
309 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)); cf. Wright v. Occupational Safety & Health
Admin., 822 F.2d 642, 646 (7th Cir. 1987) (internal 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 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 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 disclosure of this
information would provide Union Oil with any information that it does not already have.”).
310 5 U.S.C. § 552(b)(7)(B).
311 Chiquita Brands Int’l v. SEC, 805 F.3d 289, 294 (D.C. Cir. 2015) (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) 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 interfere with the fairness
of that final step [of a judicial proceeding] which is called the trial.” Id. at 295 (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 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
privacy principles discussed above in relation to Exemption 6.318 For example, courts determining
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
context.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 See Reporters Comm., 489 U.S. 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”).
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, 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.” Id.
325 DOJ v. Landano, 508 U.S. 165, 172 (1993) (quoting S. REP. NO. 1200, at 13 (1974) (Conf. Rep.)).
326 Id. at 174.
327 Id. at 180–81.
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 endanger the life or physical safety of any individual.”330 Prior to 1986,
this subexemption only protected against disclosures that could endanger law enforcement
personnel.331 The 1986 amendments to FOIA expanded Exemption 7(F)’s coverage by
substituting “any individual” for “law enforcement personnel.”332
Exemption 8: Financial Institution Reports
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
supervision of financial institutions.”333 The Senate report accompanying the original law
explains 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’
security.334 Courts have interpreted Exemption 8 broadly.335 Courts have also opined that
Exemption 8 was intended “to safeguard the relationship between the banks and their supervising
agencies.”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 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. 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 original) (quoting 5 U.S.C. § 552(b)(8)).
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
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 the records
as not subject to the requirements of” FOIA.363 As the Attorney General’s Memorandum on the
1986 Amendments to the Freedom of Information Act explains, when an 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 exist.”364 FOIA’s
exclusions, in other words, allow agencies to “withhold documents without comment.”365
Conversely, when an agency invokes a FOIA exemption in response to a request for records, it is
required to “reveal the fact of and grounds for any withholdings” to the requester.366 FOIA’s
exclusions, therefore, are designed to allow agencies to 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.
§ 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”).
367 Cf. Meese Memorandum, supra note 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
for which disclosure “could reasonably be expected to interfere with enforcement
proceedings”),371 but only if
• the relevant law enforcement proceeding or investigation concerns a “possible”
criminal violation;372 and
• the agency has “reason to believe” both that
• the pendency of the proceeding or investigation is unknown to the
subject of the proceeding or investigation, and
• revealing the records’ existence “could reasonably be expected to
interfere with enforcement proceedings.”373
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
request, that requested records are exempt from disclosure under Exemption 7(A).374 While
agencies can rely on this exclusion to prevent such an outcome, by its terms, exclusion (c)(1) is
only available to an agency while the conditions described in its text continue.375 Accordingly,
once the investigation becomes public, this exclusion no longer applies.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 Exemption 7: Law Enforcement Records or Information.
372 5 U.S.C. § 552(c)(1)(A).
373 Id. § 552(c)(1)(B).
374 See Meese Memorandum, supra note 8, at 19 (“To avail itself of Exemption 7(A) ... 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
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
Exemption 7(A) can ‘tip off’ the subject and thereby cause harm.”); id. at 20 (“The (c)(1) exclusion permits agencies to
avoid having to disclose to investigative subjects a sensitive fact (i.e., 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
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
confirm the existence of an ongoing investigation,” and that “any response that did not invoke Exemption 7(A) in
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.” Id. at 20 (emphasis added).
375 5 U.S.C. § 552(c)(1).
376 See Meese Memorandum, supra note 8, 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 pendency no
longer could lead to harm, the exclusion should be regarded as no longer applicable.”).
Congressional Research Service
45

link to page 5 link to page 40 link to page 5 link to page 5 link to page 49 link to page 26 link to page 49 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
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
the individual to submit a privacy waiver to allow a member of the organization to make such a
request.380 Exclusion (c)(2) authorizes law enforcement agencies to protect against the disclosure
of the identities of their confidential informants in such situations. Like exclusion (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 officially
confirmed.”381
Exclusion (c)(3). FOIA’s third exclusion protects a subset of FBI records concerning “foreign
intelligence,” “counterintelligence,” or “international terrorism.”382 The FBI may treat such
records as excluded from FOIA if “the existence of the records is classified information as
provided in” Exemption 1.383 Exclusion (c)(3) seeks to prevent the harm that may occur from an
agency publicly claiming the protection of Exemption 1 in response to a request and, therefore,
admitting that such sensitive records do indeed exist.384 Like the other exclusions, however, the
third exclusion’s protective ambit is limited—an agency may use exclusion (c)(3) only for such
time “as the existence of [such] records remains classified information.”385
FOIA-Related Litigation: Selected Issues
FOIA not only established a statutory right of access to agency records but also provided a means
for requesters to enforce that right through judicial review of agency decisions to withhold

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 Exemption 7: Law Enforcement Records or Information.
380 Meese Memorandum, supra note 8, at 23–24.
381 5 U.S.C. § 552(c)(2); see Meese Memorandum, supra note 8, at 24 n.43. For information on judicial treatment of the
“officially confirmed” limitation of Exclusion (c)(2), see DOJ GUIDE, EXCLUSIONS, supra note 370, at 9–11.
382 5 U.S.C. § 552(c)(3).
383 Id.; see 5 U.S.C. § 552(b)(1). See supra Exemption 1: National Defense or Foreign Policy.
384 DOJ GUIDE, EXCLUSIONS, supra note 370, at 12.
385 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
be maintained elsewhere, potentially in contexts in which the harm sought to be prevented by this exclusion is no less
threatened.” Meese Memorandum, supra note 8, 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
exclusion, on a derivative basis, where necessary to avoid an anomalous result.” Id.
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
has jurisdiction under § 552(a)(4)(B) if it can be shown “that an agency has (1) improperly; (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 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.” Id. The U.S. District
Court for the District of Columbia reviews a considerably large number of FOIA lawsuits. See 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
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:
INTEGRATED DATABASES (1979–2008)); cf. 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,
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.”).
388 See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (internal citation omitted).
All three elements must be established in order to obtain judicial review of an agency’s withholding decision. Id. at
150; accord DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989).
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 known as a
“Vaughn Index” to aid in justifying their decisions.399 In FOIA lawsuits, the plaintiff 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 system’s form of
dispute resolution.”400 A Vaughn Index, which is akin to a privilege log, is a 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
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 Vaughn Index, fashioned by the Court of Appeals for the
District of Columbia Circuit in a case entitled Vaughn v. Rosen.”) (footnotes omitted); accord 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
burden by submitting a Vaughn index.... ”).
400 King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987) (quoting Vaughn, 484 F.2d at 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, “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 either contrary evidence
in the record nor by evidence of agency bad faith.”403
FOIA also authorizes courts to review records in camera (i.e., privately and outside of the
plaintiffs’ view) to determine whether the records have been appropriately withheld.404 Courts
often conduct in camera inspection of withheld information when an agency has not “provide[d]
a sufficiently detailed explanation to enable the ... court to make a de novo determination of the
agency’s claims of exemption.”405 Courts retain discretion whether to conduct in camera review
but generally do so only in “exceptional” cases.406 In certain situations, courts may authorize
agencies to submit in camera agency affidavits. However, as opposed to in camera inspection of
withheld records, “use of in camera affidavits has generally been disfavored.”407
Reverse-FOIA Litigation
Although requesters often seek judicial review of an agency’s decision to withhold information
under FOIA, in some circumstances parties may pursue judicial action to prevent an agency’s
disclosure of information in response to a FOIA request.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 Am. Immigration Lawyers Ass’n, 830 F.3d at 673 (citation omitted); see 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 relatively detailed justification for
the withholding ... through a Vaughn index, an affidavit, or by other means.” (citations omitted) (alteration in original));
see also CREW v. DOJ, 746 F.3d 1082, 1088 (D.C. Cir. 2014) (“Agency affidavits sometimes take the form of a
‘Vaughn index’.... ”).
404 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
subsection (b) of [§ 552]”).
405 Spirko v. USPS, 147 F.3d 992, 997 (D.C. Cir. 1998). In camera review may occur in other situations. See id. at 996
(“[I]n camera 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
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 omitted).
406 See NLRB v. Robbins Tire & Rubber, 437 U.S. 214, 224 (1978) (“The in camera 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.
Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d 100, 119 (D.D.C. 2005) (“[C]ourts disfavor in camera inspection and it is
more appropriate in only the exceptional case.”).
407 Armstrong v. EOP, 97 F.3d 575, 580 (D.C. Cir. 1996).
408 Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 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
records at issue or that it has decided to release such records in response to a request. See, e.g., Chrysler Corp. v.
Brown, 441 U.S. 281, 287 (1979) (explaining that the lawsuit “began ... 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, 686 F.
Supp. 2d 80, 83–84 (D.D.C. 2010) (“The [Federal Aviation Administration (FAA)] contacted the [plaintiff] by
(continued...)
Congressional Research Service
49

link to page 51 link to page 29 The Freedom of Information Act (FOIA): A Legal Overview

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.410 In Chrysler Corporation v. Brown, the Supreme Court
held that neither FOIA nor the TSA authorizes a private right of action to enjoin an agency from
disclosing information in violation of the TSA.411 The Court held, however, that judicial review of
such actions is available under the APA.412 In reverse-FOIA suits, courts 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 conclusions” that are
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”413 The
burden of proof in a reverse-FOIA action is on the plaintiff (i.e., the party attempting to prevent
the agency from disclosing information).414
Under Executive Order 12,600, an agency is required, in certain circumstances, to provide notice
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.415 Agency
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
reasons for its disagreement.416 The executive order defines “confidential commercial
information” as information submitted to an agency “that arguably contain[s] material exempt
from release under Exemption 4 ... because disclosure could reasonably be expected to cause
substantial competitive harm.”417 Notably,418 the Supreme Court abrogated the “substantial
competitive harm” test for Exemption 4 in FMI v. Argus Leader Media.419 In response, DOJ has
advised agencies to use the broader definition of “confidential” declared in FMI in their
predisclosure notification procedures.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,
“[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
revealing it to a third party in response to the latter’s FOIA request”).
411 Chrysler, 441 U.S. at 294, 316–17. The TSA is a criminal statute that prohibits the unlawful disclosure of a variety
of commercial and financial information. See 18 U.S.C. § 1905. The statute allows disclosure of covered information
when disclosure is “authorized by law.” Id.
412 Chrysler, 441 U.S. at 317–18.
413 5 U.S.C. § 706(2)(A); see CNA, 830 F.2d at 1162; Chrysler, 441 U.S. at 318. Review under this standard is more
deferential to the agency than is the de novo review of agency withholding decisions required by FOIA. See supra
Judicial Review of Agency Withholding Decisions. In Chrysler, 441 U.S. at 318, 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).”
414 See AAR Airlift Grp., Inc. v. U.S. Transp. Command, 161 F. Supp. 3d 37, 43 (D.D.C. 2015).
415 Exec. Order No. 12,600 §§ 1, 3 (Jan. 1, 1987).
416 Id. §§ 5, 6.
417 Id. § 2(a).
418 See supra Exemption 4: Trade Secrets and Commercial or Financial Information.
419 139 S. Ct. 2356, 2363–66 (2019).
420 See DOJ, Office of Info. Pol’y, Exemption 4 After the Supreme Court’s Ruling in Food Marketing Institute v. Argus
(continued...)
Congressional Research Service
50

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

Selected Issues of Potential Interest for Congress
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
Congress” on the basis that such information is exempt under FOIA.421 There are different views,
however, about what “Congress” means in this instance—in particular, whether this withholding
prohibition applies to requests from individual Members of Congress or whether the provision is
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
congressional document possessed by an agency is subject to FOIA depends on whether Congress
clearly expressed its determination to retain control over the document.422
Although this section discusses only the two topics just mentioned, FOIA implicates
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
requesters, as well as the general backlog of FOIA requests.423 Further, FOIA evidences
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
act or agencies’ administration thereof.424
Congressional Access to Agency Information: FOIA’s “Special
Access” Provision
FOIA’s “special access”425 provision—codified at 5 U.S.C. § 552(d)—states that FOIA “is not
authority to withhold information from Congress.”426 The Senate report accompanying the
original act explained that this provision is intended to clarify “that, because [FOIA] only refers

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
allow, but do not require, information to be withheld from disclosure” and that the 2016 amendments to FOIA codified
“[t]he standard ... 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) (Conf.
Rep.) (writing that “[t]he conferees intend [the 1976 amendments to Exemption 3] to overrule the decision of the
Supreme Court in Administrator, FAA v. Robertson, 422 U.S. 255 (1975)”); S. REP. NO. 1200, at 9 (1974) (Conf. Rep.)
(explaining that, “[i]n Environmental Protection Agency v. Mink, et al., 410 U.S. 73 (1973), the Supreme Court ruled
that in camera 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
the 1974 amendments to FOIA “amend[] the present law to permit such in camera examination at the discretion of the
court”).
425 See DOJ, Office of Info. Pol’y, Congressional Access Under FOIA, 5 FOIA UPDATE 1 (Jan. 1, 1984) [hereinafter
Congressional Access Under FOIA], https://www.justice.gov/oip/blog/foia-update-oip-guidance-congressional-access-
under-foia.
426 5 U.S.C. § 552(d).
Congressional Research Service
51

link to page 55 link to page 55 link to page 56 The Freedom of Information Act (FOIA): A Legal Overview

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 FOIA or, on the other
hand, whether the provision is limited to access requests from either house of Congress and
congressional committees.428
DOJ has long maintained that the special access provision does not generally apply to records
requests from individual Members of Congress. 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 a whole (including through its committee
structure)” and (2) individual Members.429 In DOJ’s 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 Member
is “clearly acting in a completely official capacity” in making the request.430 A request by an
individual Member in his or her official capacity is covered by the special access provision only if
the request is from the chair of 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 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.
Congressional Access Under FOIA, supra note 425.
429 Id.
430 Id.
431 Id.; see also Authority of Individual Members of Congress to Conduct Oversight of the Exec. Branch, 41 Op. O.L.C.
1, 1 (2017) (opining that “the constitutional authority to conduct oversight ... may be exercised only be each house of
Congress or, under existing delegations, by committees and subcommittees (or their chairmen)” and that “[i]ndividual
members of Congress ... do not have the authority to conduct oversight in the absence of a specific delegation by a full
house, committee, or subcommittee”); id. 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 private persons”)
(internal citation omitted).
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 entitling them to share in general
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
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
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
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
of a legislator.444
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.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 to revisit Murphy on the question of FOIA’s application to agency
communications with individual Members, later appellate panel and lower court decisions within
the circuit have appeared to treat Murphy’s interpretation as controlling.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)
(“[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
capacities and those made in their individual capacities.”) (citing Murphy v. Dep’t of Army, 613 F.2d 1151, 1157 (D.C.
Cir. 1979)); Elec. Privacy Info. Ctr. v. Transp. Sec. Admin., 928 F. Supp. 2d 156, 165 (D.D.C. 2013) (“[E]arlier, in
Murphy v. Department of the Army, the Circuit held that a document disclosed by the Army to a congressman was
protected under 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...)
Congressional Research Service
54

link to page 10 link to page 10 link to page 10 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
Congressional Records
As discussed above, FOIA requires federal agencies to disclose “agency records” after receiving a
valid request.463 Congress is not an “agency” under FOIA.464 Congress, accordingly, is not
obligated to respond to FOIA requests for documents in its possession.465 Congress’s 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 congressional
request qualifies as a congressional record exempt from FOIA if “Congress 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 See supra “Agency Records” 5 U.S.C. § 552(a)(3)(A), (4)(B).
464 See 5 U.S.C. §§ 551(1), 552(f)(1); see also ACLU v. CIA, 823 F.3d 655, 662 (D.C. Cir. 2016) (“[I]t is 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)); see 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.”).
465 See ACLU, 823 F.3d at 662.
466 Id. at 662–63 (quoting Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 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
time a FOIA request for the material is issued. See supra “Agency Records” DOJ v. Tax Analysts, 492 U.S. 136, 145
(1989). This report previously explained that the D.C. Circuit developed the “Burka test” for determining whether an
agency has “control” over material that it has created or obtained. See supra “Agency Records” The test 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. Burka v. HHS, 87
F.3d 508, 515 (D.C. Cir. 1996) (citation omitted). The court has explained that the congressional-intent-to-control test
“renders the first two factors of the [Burka] test effectively dispositive.” Judicial Watch, 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 by an agency is a congressional record, 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’ affirmatively expressed intent to control its own
documents.”467 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 ... , 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, the D.C. Circuit determined that a confidential report authored by the Senate Select
Committee on Intelligence was a congressional record and, therefore, not subject to FOIA.470 The
case concerned the committee’s evaluation of a CIA program on detention and interrogation.471 In
2014, the committee completed a final report based on its review.472 Although the committee did
not publicly release the final report, it distributed copies to the President and other executive
branch officials.473 In 2009, before beginning its review, the 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.474 The letter provided the following
conditions:
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
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
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
the 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
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
these are congressional, not CIA, records.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
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
Committee on Taxation to the IRS requesting information in connection with a committee
investigation did not fully protect the IRS’s response.478 The request stated:
This document is a congressional record and is entrusted to the [IRS] for your use only.
This document may not be disclosed without the prior approval of the Joint Committee.479
The IRS transmitted documents in response to the committee’s request (of which the agency
retained a copy).480 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
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
IRS’s response, save for “those portions of the IRS response that would effectively disclose th[e]
[committee’s] request.”481 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
to ‘this document and all IRS documents created in response to it.’”482 Accordingly, the court of
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
any segregable portions that are not otherwise protected by one of FOIA’s nine exemptions.”483
The D.C. Circuit has articulated other principles that may be helpful for determining whether
Congress has 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 ... record[s’]
creation” and “in response to the FOIA litigation” do not convey sufficient manifestations of
intent to control.484 Nor are proper manifestations of intent contained in expressions that are “too

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; see ACLU, 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
after they had filed suit in the District Court” and concluding, accordingly, that the letter “is a ‘post-hoc objection[] to
(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
which to evaluate and limit the breadth of [the Committee’s] interdiction.”487
Whether Congress has sufficiently manifested intent to control a document ultimately depends on
the circumstances underlying each case.488 For example, in United We Stand (discussed above),
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
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
recognize[d] the confidentiality of Joint Committee requests.”489 In American Oversight, Inc. v.
Department of Health & Human Services, the United States District Court for the District of
Columbia relied on its reading of language contained 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 to retain control over the messages.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 See Goland, 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
property subject to the free disposition of the agency with which the document resides.”).
489 United We Stand, 359 F.3d at 605. The court “express[ed] no view about the sufficiency of congressional
manifestations of intent to control documents that are created under other circumstances.” Id.
490 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 stated:
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,
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
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
documents are not ‘agency records’ for purposes of the Freedom of Information Act or other law.
Id. at *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,
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
or one or more agencies or officers of the Federal Government.” 5 U.S.C. app. 2 § 3. However, groups that are entirely
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. Id.; see also id. § 4 (providing that
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

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

committee’s “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies,
agenda, or other documents,”502 and members of the public are authorized under FACA to attend
and participate in advisory committee meetings.503 The availability of an advisory committee’s
papers is subject to FOIA’s exemptions.504
Another general open government statute, the Sunshine Act, imposes transparency obligations on
the meetings of certain multimember boards and commissions.505 The statute requires that
covered agencies allow the public to attend their meetings506 and have access to relevant
information.507 Meetings and information required to be disclosed under the act are subject to ten
exemptions, many of which resemble FOIA’s.508
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
permanent residents.509 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.510 One
Privacy Act exception covers records for which disclosure “would be ... required” by FOIA.511
Under this exception, an agency record subject to the Privacy Act that is not protected by any of
FOIA’s exemptions—and which therefore must be disclosed under FOIA upon request—is not
prohibited from being disclosed by the Privacy Act.512 The Privacy Act also permits individuals to

502 Id. § 10(b).
503 Id. § 10(a)(1), (3). But see id. § 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,
determines that such portion of such meeting may be closed to the public in accordance with [the Sunshine Act]”).
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), “incorporates the FOIA exemptions”).
505 See 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
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.” Id. § 552b(a)(1).
506 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
joint conduct or disposition of official agency business.” 5 U.S.C. § 552b(a)(2).
507 See id. § 552b(b); see also, e.g., id. § 552b(f)(2) (directing agencies to “make promptly available to the public ... the
transcript, electronic recording, or minutes ... 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
exemptions contained in § 552b(c).
508 See id. § 552b(c)(1)–(10).
509 Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984); see 5 U.S.C. § 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”). 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.” Id.
The act defines “record” as “any item, collection, or grouping of information about an individual that is maintained by
an agency ... 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.” Id. § 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
some identifying number, symbol, or other identifying particular assigned to the individual.” Id. § 552a(a)(5).
511 Id. § 552a(b)(2).
512 See, e.g., DOD v. Fed. Labor Relations Auth., 510 U.S. 487, 502 (1994) (holding that “FOIA ... does not require the
agencies to divulge the [records at issue], and the Privacy Act, therefore, prohibits their release”).
Congressional Research Service
60

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

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.513

Author Information

Benjamin M. Barczewski

Legislative Attorney

Disclaimer
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
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
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
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.

513 See 5 U.S.C. § 552a(d), (j), (k). 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. Id. § 552a(t)(1).
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
made by the agency ... of any record that has been disclosed to the person or agency if an accounting of the disclosure
was made.” Id. § 552a(c)(3), (4). An agency may, under certain circumstances, exempt a system of records from those
provisions. See id. § 552a(j), (k).
Congressional Research Service
R46238 · VERSION 4 · UPDATED
61

Download PDF

Download EPUB

Revision History

Jun. 27, 2024

HTML · PDF

3% changed

Aug. 24, 2020

HTML · PDF

25% changed

Feb. 24, 2020

HTML · PDF

Metadata