Last week the Office of Information Policy (OIP) at the Department of Justice (DOJ) issued guidance to make agencies' use of exceptions to the Freedom of Information Act (FOIA) more transparent. The guidance should help bring clarity and accountability to a practice that concerns many openness advocates.
The federal government uses FOIA's nine exemptions to protect information from release while acknowledging its existence. FOIA's exceptions, however, are intended to be used where even neither confirming nor denying the existence of responsive records would be inadequate to protect exceptionally sensitive law enforcement or national security interest in certain circumstances. Because explaining that a record is not releasable because it is protected by a particular exemption would tip the requester that s/he is the subject of an investigation, exceptions allow the government to treat the record as "not subject to the requirements" under the FOIA.
Here is how OIP describes the need and use of an exception:
For example, when a criminal law enforcement investigation is ongoing, and the target is unaware that it is pending, but suspects that he is under investigation, he might make a FOIA request for records on himself to see if he could find out whether he was being investigated. If the agency were to respond by advising the requester that it did, in fact, have records responsive to his request, but they were being withheld under Exemption 7(A), which protects records when disclosure could reasonably be expected to interfere with enforcement proceedings, the assertion of the exemption by the agency would reveal to the requester the very thing the agency needed to protect, i.e., the existence of the ongoing investigation.
OpenTheGovernment.org and some of our partners raised concerns about the use of exceptions when DOJ issued proposed FOIA regulations last year. By requiring agencies to make information about exceptions more readily available, requiring agencies to clear any use of an exception with OIP, and instituting an aggregate public reporting requirement, OIP's new guidance will make it less likely that agencies will abuse their use.