FREEDOM OF INFORMATION

EXECUTIVE BRIEFING

PART II

FOIA EXEMPTIONS

• Nine exemptions permit withholding records.

• SSA only uses six of these exemptions (2 through 7).

EXEMPTIONS

• Exemptions are discretionary and do not require withholding -

• interaction of some exemptions with other statutes may require withholding.

DENIALS AND DELETIONS

• Agencies must specify the amount of information denied and note the record at the place of the deletion, where possible

Privacy Exemptions

• SSA most often withholds information or records because disclosure would affect an individual’s privacy interests.

• Requires balancing of privacy interests with public interest.

EXEMPTION 6

• Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy

LAW ENFORCEMENT

• Records or information compiled for law enforcement purposes, but only if the information meets certain conditions.

GLOMARIZATION

• Refusal to confirm or deny the existence of records

• Used with exemption 1, 6 or 7(C)

• Named for Howard Hughes’ boat the Glomar Explorer

CONFIDENTIAL BY LAW

• Specifically exempted from disclosure by statute

• The statute must leave no discretion on withholding, establish criteria for withholding, or refer to particular matters to be withheld.

EXEMPTION 4

• Trade secrets and commercial or financial information obtained from a person and privileged or confidential

Discretionary Exemptions

• Exemptions 2 and 5 are often called discretionary exemptions.

• The Attorney General often issues guidelines with respect to their use.

EXEMPTION 2 PERSONNEL RULES

• Related solely to the internal personnel rules and practices of an agency

EXEMPTION 5

• Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency

THRESHHOLD

• Documents generated by an agency and not circulated beyond the executive branch

• Consider when the document would routinely be disclosed in private litigation

DELIBERATIVE PROCESS PRIVILEGE

• Deliberative process privilege

• To prevent injury to the quality of agency decisions

• To encourage open, frank discussion on policy matters between subordinates and superiors

DELIBERATIVE PROCESS PRIVILEGE

• To protect against premature disclosure of proposed policies before adoption

• To protect against public confusion that might result from disclosure of thoughts that were not grounds for agency action

FACTORS TO CONSIDER

• Nature of decision and decision-making process

• Status of decision and personnel involved

• Age of information• Process impairment• Sensitivity of

information

ATTORNEY WORK-PRODUCT

• Documents prepared by an attorney in contemplation of litigation

• Litigation need not actually occur

ATTORNEY-CLIENT PRIVILEGE

• Confidential communications between an attorney and his client

• Opinions given by attorney

• Client-supplied information

OTHER PRIVILEGES

• Trade secret or confidential research, development or commercial information generated by the government

OTHER PRIVILEGES

• Witness statements • Expert witness reports• Pre-sentence reports• Settlement

negotiations• Critical

self-evaluations

NATIONAL SECURITY INFORMATION

• Exemption 1 integrates national security protections provided by executive order with FOIA’s disclosure mandate.

• Currently Executive Order 12,958 signed by George W. Bush March 25, 2003.

Exemption 1

• Protects from disclosure national security information concerning national defense or foreign policy that has been properly classified in accordance with the requirements of the current executive order.

Exemption 1

• As with most other exemptions, agencies must review records and release segregable non-exempt portions.

Executive Order 12,958

• Recognized the public’s right to be informed about activities of government and the need to protect national security information.

Executive Order 12,958

• Information may not be classified unless the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, including defense against transnational terrorism.

Executive Order 12,958

• Covered information categories include:

• Foreign government information

• Vulnerabilities or capabilities of systems, installations, projects, or plans relating to national security

Executive Order 12,958

• Covered information:

• Intelligence activities, sources or methods

• Cryptology

• Foreign relations or activities, including confidential sources

• Military plans, weapons or operations.

Executive Order 12,958

• Covered information:• Scientific,

technological, or economic matters related to national security

• Government programs for safeguarding nuclear materials and facilities

Executive Order 12,958

• Information may not be classified to:

• Conceal violations of law or administrative error

• Prevent embarrassment

• Prevent or delay disclosure of information that does not require national security protection

Exemption 1

• Courts will usually rely on agency affidavits to determine whether documents are properly withheld.

• Courts may request in camera inspection of documents.

Duration of Classification

• Agencies must attempt to establish a specific date or event for declassification based on duration of national security sensitivity.

• If that is not possible, the default is a ten-year limit on new classification actions.

Declassification

• Automatic declassification of information more than 25 years old

• Any person may request a declassification review.