There has been much written lately about the proposed new Department of Justice ("DOJ") FOIA regulations which call for DOJ components to "respond to the request as if the excluded records did not exist. This response should not differ in wording from any other response given by the component" when applying an exclusion to the FOIA.
The purpose of this article is to clear up some of the confusion around FOIA exclusions and these proposed regulations. I am giving no opinion on whether or not the proposed regulations should be adopted.
First, these proposed regulations only apply to DOJ components, not the entire government. They instruct DOJ components on how they should respond to FOIA requests and when they use an exclusion, what they must do, both internally within DOJ and externally in responding to the requester.
The blogosphere has been full of articles and comments on the proposed regulations, leading me to believe that not all of those who have expressed opinions about these regulations fully understand the difference between FOIA exemptions and FOIA exclusions. The FOIA has nine exemptions, which allow the government to withhold material responsive to a FOIA request. When the government invokes an exemption, it must then tell the requester that there is material but it is exempt from the FOIA pursuant to the exemption.
An exclusion is different. When used, it excludes the material from the FOIA. There are only three FOIA exclusions - and they are much more narrowly written than the exemptions. Further, these exclusions have been around for a long time, they were part of the 1986 FOIA Amendments - contrary to some recent articles that lead the reader to believe that they are an invention of the Obama administration. Further, a "Glomar" response, where the agency neither confirms nor denies that records exist is not an invocation of an exclusion.
The first exclusion authorizes federal law enforcement agencies to shield the existence of records of ongoing criminal investigations. What this exclusion allows, basically, is that, when a request comes to a law enforcement agency for records, and the law enforcement agency believes that the subject of an open criminal investigation doesn't know he, she or it (in the case of a corporate/non-human entity) is being investigated, the law enforcement agency can invoke the exclusion and say no records exist rather than say there are records but they are the subject of an open investigation. However, once the investigation becomes known, the use of this exlusion is not appropriate.
The second exclusion covers confidential informants. It says "whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party, the agency may treat the records as not subject to the requirements of FOIA unless the informant's status has been officially confirmed." As an example, if a third party makes a request for John Doe's informant records and it is not publicly known that Doe is an informant (for instance, he has never testified at a trial nor has the agency ever told the public that Doe is an informant), the agency can say no records exist rather than saying that records exist but that they are withheld pursuant to Exemption 7(D). Once the agency invokes 7(D), they publicly acknowledge that Doe is an informant.
The final exclusion applies only to the FBI. It says "whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in [Exemption 1], the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of [the FOIA]." Thus, the FBI can say no records exist on these classified investigations rather than say they have records but are classified.
The proposed regulations do not let components of DOJ invoke these exclusions in a vacuum with no oversight. They must notify the Office of Information Policy and get approval for the use of the exclusion. Further, neither the regulations nor current law allow the DOJ, when using an exclusion that is subject to a lawsuit to lie or mislead the court. As with classified material, the DOJ has ways to let the court know that it is using an exclusion without notifying the public. The fact that DOJ didn't do this in the past is a problem with the quality of DOJ employees not the way the FOIA is written.
My hope is that this clears up some of the confusion around this issue. Ill-informed debate does not do the public any good and the debate about how the DOJ invokes the exclusions is an important one balancing the needed protection of law enforcement investigations and government openness and transparency.
Editor's Note: Via EPIC, Posted on November 4, 2011 - Justice Department Revises FOIA Proposal, But Problems Remain - "In response to widespread criticism from EPIC and other open government groups, the Department of Justice has agreed to withdraw one of its proposed Freedom of Information Act revisions. The section would have allowed the agency to make misrepresentations about the existence of documents subject to the FOIA. In extensive comments to the Department of Justice, EPIC said that the Justice Department proposal would undermine the FOIA and is contrary to law as well as the views expressed by the President and the Attorney General. But EPIC also pointed to proposed changes that would place new burdens on FOIA requesters, make it more difficult to qualify for educational and news media fee status, allow the agency to terminate FOIA requests, and even destroy records subject to FOIA. For more information see EPIC: Open Government."