The Freedom of Information Act (FOIA): A Legal Overview
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The Freedom of Information Act (FOIA):
A Legal Overview
Updated June 27, 2024
Congressional Research Service
https://crsreports.congress.gov
R46238
SUMMARY
The Freedom of Information Act (FOIA): A
Legal Overview
R46238
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Originally enacted in 1966, the Freedom of Information Act (FOIA) establishes a three-part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.
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The Freedom of Information Act (FOIA): A Legal Overview
Contents
Key Terms ....................................................................................................................................... 3
“Agency” ................................................................................................................................... 3
“Agency Records”..................................................................................................................... 6
Distinguishing Agency Records and Personal Records of an Employee ............................ 7
“Any Person” ............................................................................................................................ 9
Access to Government Information Under FOIA ......................................................................... 10
Affirmative Disclosure ............................................................................................................ 10
Publication in the Federal Register ................................................................................... 11
Electronic Disclosure ........................................................................................................ 12
Request-Driven Disclosure ..................................................................................................... 14
Agency Response Requirements....................................................................................... 15
Appeals and Exhaustion of Administrative Remedies ...................................................... 17
Exemptions .................................................................................................................................... 18
Exemption 1: National Defense or Foreign Policy ................................................................. 22
Exemption 2: Internal Personnel Rules and Practices ............................................................. 23
Exemption 3: Matters Exempted by Other Statutes ................................................................ 24
Exemption 4: Trade Secrets and Commercial or Financial Information ................................. 25
Exemption 5: Inter- or Intra-Agency Memoranda or Letters .................................................. 28
Deliberative Process Privilege .......................................................................................... 30
Presidential Communications Privilege ............................................................................ 31
Attorney-Client Privilege .................................................................................................. 32
Attorney Work-Product Privilege ..................................................................................... 32
Other Privileges ................................................................................................................ 33
Exemption 6: Personnel, Medical, and Similar Files .............................................................. 33
Exemption 7: Law Enforcement Records or Information ....................................................... 36
Exemption 7(A) ................................................................................................................ 38
Exemption 7(B)................................................................................................................. 38
Exemption 7(C)................................................................................................................. 39
Exemption 7(D) ................................................................................................................ 40
Exemption 7(E) ................................................................................................................. 40
Exemption 7(F) ................................................................................................................. 41
Exemption 8: Financial Institution Reports ............................................................................ 41
Exemption 9: Geological and Geophysical Information and Data Concerning Wells ............ 41
Glomar Responses ......................................................................................................................... 42
Glomar: Exemptions v. Exclusions ......................................................................................... 42
Development of the Glomar Response ................................................................................... 42
Exclusions ..................................................................................................................................... 44
FOIA-Related Litigation: Selected Issues ..................................................................................... 46
Judicial Review of Agency Withholding Decisions ................................................................ 47
Reverse-FOIA Litigation ......................................................................................................... 49
Selected Issues of Potential Interest for Congress ......................................................................... 51
Congressional Access to Agency Information: FOIA’s “Special Access” Provision .............. 51
Congressional Records ............................................................................................................ 55
Related Open Government and Information Laws: FACA, the Sunshine Act, and the
Privacy Act ................................................................................................................................. 59
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Tables
Table 1. FOIA Exemptions ............................................................................................................ 18
Contacts
Author Information........................................................................................................................ 61
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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
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
T
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).
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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/dojguide-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.
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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).
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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-C350-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...)
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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).
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“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.
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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
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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
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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
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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’ responsedriven 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/foiaguide/proactive_disclosures/dl?inline.
89 5 U.S.C. § 552(a)(1), (a)(1)(C), (D).
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§ 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
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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
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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/oipguidance/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)).
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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.
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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
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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 FOIARelated 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
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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].
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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. §
552(b)(2)).
Matters that are ... related solely to the internal personnel
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.”).
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Exemptions
Text of Exemptions
Exemption 3: Matter Exempted by Other Statutes (5
U.S.C. § 552(b)(3)).
Matters that are ... specifically exempted from disclosure by
statute (other than section 552b of this title), if that statute(A)(i) requires that the matters be withheld from the public
in such a manner as to leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to
particular types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN
FOIA Act of 2009, specifically cites to this paragraph.
Exemption 4: Trade Secrets and Commercial or
Financial Information (5 U.S.C. § 552(b)(4)).
Matters that are ... trade secrets and commercial or
financial information obtained from a person and privileged
or confidential.
Exemption 5: Inter- or Intra-Agency Materials (5 U.S.C.
§ 552(b)(5)).
Matters that are ... inter-agency or intra-agency memoranda
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. §
552(b)(8)).
Matters that are ... 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.
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).
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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 “nonresponsive,” 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).
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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-apreliminary-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 intraagency 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
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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-bydocument 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
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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.
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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 .
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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).
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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...)
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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 ReverseFOIA 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).
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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)).
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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.
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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.
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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 postdecisional 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.”).
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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 workproduct 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.
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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.
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