FOIA Exemptions and Exclusions

It is the policy of the Department of Commerce to make records available to the public to the greatest extent possible, in keeping with the spirit of the FOIA, while at the same time protecting sensitive information that may be withheld. Congress established certain categories of information that are not required to be released in response to a FOIA request because release would be harmful to a government or private interest. These categories are called "exemptions" from disclosures. Still, even if an exemption applies, agencies may use their discretion to release information when there is no foreseeable harm in doing so and disclosure is not otherwise prohibited by law. The nine exemption categories that authorize government agencies to withhold information are:

(b)(1) - Protects Classified Matters of National Defense or Foreign Policy
This exemption protects from disclosure national security information concerning the national defense or foreign policy, provided that it has been properly classified in accordance with the substantive and procedural requirements of an executive order.

(b)(2) - Internal Personnel Rules and Practices of an Agency

This exemption exempts from mandatory disclosure records that are "related solely to the internal personnel rules and practices of an agency."

(b)(3) - Information that is Prohibited from Disclosure by Another Federal Law

This exemption incorporates the disclosure prohibitions that are contained in various other federal statutes. Statutes used by Department of Commerce components last Fiscal Year.

(b)(4) - Trade Secrets, Commercial or Financial Information

This exemption protects "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential." This exemption is intended to protect the interest of both the government and submitter of information.

(b)(5) - Privileged Communications Within or Between Agencies, Including:

       
    1. Deliberative Process Privilege;
    2. Attorney-Work Product Privilege; and
    3. Attorney-Client Privilege.

(b)(6) - Personal Information Affecting an Individual's Privacy

This exemption permits the government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information " would constitute a clearly unwarranted invasion of personal privacy." This exemption cannot be invoked to withhold from a requester information pertaining to the requester.

(b)(7) - Investigatory Records Compiled for Law Enforcement Purposes

As amended, this exemption protects from disclosure "records or information compiled for law enforcement purposes."

7(A) - Records or information that could reasonably be expected to interfere with enforcement proceedings. This exemption authorizes the withholding of "records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information ... could reasonably be expected to interfere with enforcement proceedings."

7(B) - Disclosure which would deprive a person of a fair trial or an impartial adjudication. Records that would prevent prejudicial pretrial publicity that could impair a court proceeding, protects "records or information compiled for law enforcement purposes [the disclosure of which] would deprive a person of the right to a fair trial or an impartial adjudication."

7(C) - Personal Information in Law Enforcement Records. This exemption provides protection for personal information in law enforcement records. This exemption is the law enforcement counterpart to Exemption 6, providing protection for law enforcement information the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

7(D) - Identity of a Confidential Source. This exemption provides protection for "records or information compiled for law enforcement purposes [which] 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 a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source."

7(E) -Circumvention of the Law. This exemption affords protection to all law enforcement information which "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."

7(F) - Physical Safety to Protect a wide Range of Individuals. This exemption permits the withholding of information necessary to protect the physical safety of a wide range of individuals. Whereas Exemption 7(F) previously protected records that "would ...endanger the life or physical safety of law enforcement personnel," the amended exemption provides protection to "any individual when disclosure of information about him or her "could reasonably be expected to endanger [his/her] life or physical safety."

(b)(8) - Records of Financial Institutions

This exemption covers 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."

(b)(9) - Geographical and Geophysical Information Concerning Wells

This exemption covers "geological and geophysical information and data, including maps, concerning wells.

 


Law Enforcement & National Security Exclusions

Congress provided special protection in the FOIA for three narrow categories of law enforcement and national security records. The provisions protecting those records are known as "exclusions." Records falling within an exclusion are not subject to the requirements of the FOIA.

      1. The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings.
      2. The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant's status has not been officially confirmed.
      3. The third exclusion is limited to the FBI and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified.

Questions and Comments

Send Questions or Comments on the Commerce Open Government program to eFOIA@doc.gov.

 

Office of Privacy and Open Government
Office of the Chief Financial Officer and Assistant Secretary for Administration
U.S. Department of Commerce

Page last updated: October 28, 2016