Politicalnews.me has a letter Sen. Charles Grassley sent the Department of Justice about its proposed FOIA regulations that give department components specific instructions in what to do when using a FOIA exclusion.
I've written about this more specifically in an article that will shortly come out in LLRX.com, but to set the record straight, I think it is important for people to understand the difference between the FOIA's exemptions and 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.
Hopefully, the debate will continue with an understanding of what the actual issue is and how the Department of Justice will respond when invoking FOIA exclusions.
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