Question

Briefly explain the following exceptions to FOIA.

a. Material exempt by statute

b. Inter – and Intra-agency memoranda – Does this exception incorporate the privileges and protections that government lawyers typically raise in tax litigation? Explain.

c. Investigatory records.

Answer 1

Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government.

1. Material exempt by statute.

The Freedom of Information Act [5 USC 552], or FOIA, generally provides that any person has a right—enforceable in court—of access to federal agency records, except to the extent that such records (or portions thereof) are protected from disclosure by one of nine exemptions. When a portion of a record is withheld from public release, the subsection of the FOIA law describing that exemption or exemptions may be found listed in the margin next to the space where the withheld text would have been found. The list below describes the type of material withheld under each subsection of the FOIA.

Exemptions:

• (A) Specifically authorized under criteria by an executive order to be kept secret in the interest of national defense or foreign policy and

(B)are in fact properly classified to such Executive Order #12958 3/25/03.

• Related solely to the internal personnel rules and practices of an agency.
• Specifically exempted from disclosure by statute other than section 552b of this title, provided that such statute

(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on issue or

(B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

• Trade secrets and commercial or financial information obtained from a person and privileged or confidential.
• 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.
• Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
• Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

• Could reasonably be expected to interfere with enforcement proceedings;
• Would deprive a person of a right to a fair trial or an impartial adjudication;
• Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
• Could reasonably be expected to disclose the identity of confidential source, including a state, local, or foreign agency or authority or any private institution that 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;
• 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;
• Could reasonably be expected to endanger the life or physical safety or any individual.

• 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.
• Geological and geophysical information and data, including maps concerning wells.

1. Inter – and Intra-agency memoranda – Does this exception incorporate the privileges and protections that government lawyers typically raise in tax litigation? Explain.

Exemption 5 of the FOIA protects "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." (1) The courts have construed this somewhat

opaque language, with its sometimes confusing threshold requirement, (2) to "exempt

those documents, and only those documents that are normally privileged in the civil

discovery context." (3)

Although originally it was "not clear that Exemption 5 was intended to

incorporate every privilege known to civil discovery," (4) the Supreme Court

subsequently made it clear that the coverage of Exemption 5 is quite broad,

encompassing both statutory privileges and those commonly recognized by case

law, and that it is not limited to those privileges explicitly mentioned in its legislative

history. (5) Accordingly, the Court of Appeals for the District of Columbia Circuit has

stated that the statutory language "unequivocally" incorporates "all civil discovery

rules into FOIA [Exemption 5]." (6) However, this incorporation of discovery privileges

requires that a privilege be applied in the FOIA context exactly as it exists in the

discovery context. (7) Thus, the precise contours of a privilege, with regard to

applicable parties or the types of information that are protectible, are also

incorporated into the FOIA. (8)

Additionally, it is not the "hypothetical litigation" between particular parties

(in which relevance or need are appropriate factors) that governs Exemption 5's

applicability; (9) rather, it is the circumstances in civil litigation in which memoranda

would "routinely be disclosed." (10) Therefore, whether the privilege invoked is

absolute or qualified is of no significance. (11) Accordingly, no requester is entitled to

greater rights of access under Exemption 5 by virtue of whatever special interests

might influence the outcome of actual civil discovery to which he is a party. (12) Indeed,

such an approach, combined with a careful application of Exemption 5's threshold

language, is the only means by which the Supreme Court's firm admonition against

use of the FOIA to circumvent discovery privileges can be given full effect. (13)

Nevertheless, the fact that information is not generally discoverable does not

necessarily mean that it is not discoverable by a specific class of parties in civil

litigation, so just as the FOIA's privacy exemptions are not used against a first-party

requester, (14) a privilege that is designed to protect a certain class of persons cannot

be invoked against those persons as FOIA requesters. (15)

The three primary, most frequently invoked privileges that have been held to

be incorporated into Exemption 5 are the deliberative process privilege (referred to

by some courts as "executive privilege"), the attorney work-product privilege, and

the attorney-client privilege. (16) First, however, Exemption 5's threshold requirement

must be considered.

1. Investigatory records.

One of the most important functions of federal agencies is the discharge of their statutory and regulatory law enforcement responsibilities. Such federal activities -- whether in the criminal, civil or regulatory arenas -- commonly involve agency investigations which require detailed law enforcement files. While the particular types of law enforcement records compiled vary considerably from agency to agency, they uniformly contain much of the government's most sensitive information.

As might be expected, the problems facing all FOIA processors of law enforcement records share common characteristics, but also vary according to the specific circumstances of each agency's particular law enforcement agenda. A brief look at the investigatory records processing practices of three very different agencies -- the Federal Bureau of Investigation, the Environmental Protection Agency, and the Nuclear Regulatory Commission -- gives an overview of FOIA processing concerns in the law enforcement area.

FEDERAL BUREAU OF INVESTIGATION

At the Federal Bureau of Investigation, the nation's leading criminal law enforcement agency, three major areas of concern frequently arise in disclosure determinations under Exemption 7 of the FOIA: the protection of confidential sources, the protection of third-party privacy, and the protection of secret investigatory techniques.

ENVIRONMENTAL PROTECTION AGENCY

The Environmental Protection Agency is responsible for the enforcement of such statutes as the Clean Air Act and the Clean Water Act and with the disbursement of "Superfund" monies to combat hazardous waste pollution. EPA generates investigatory records in carrying out its enforcement responsibilities under each of these statutes. Whether it will release investigatory records often depends on the exact stage at which its enforcement activity stands at the time of a request.

NUCLEAR REGULATORY COMMISSION

At the NRC, essentially three different offices perform investigations and/or inspections on a routine basis.

The Office of Inspection and Enforcement at the Nuclear Regulatory Commission conducts routine inspections of nuclear facilities and prepares written reports on such inspections. These inspection reports are regularly available in the NRC's public reading rooms.