The FOIA blog

Confusion Still Reigns Over FOIA Exclusions

I like debates to be on the facts.  The debate on the proposed DOJ FOIA regulations that were pulled by DOJ last week concerned the Department of Justice's proposed guidance to Department of Justice components on their use of the three (3) FOIA Exclusions.  It had absolutely nothing to do with federal government use of the nine (9) FOIA exemptions -- but if you read this editorial from MySA, the web page of the San Antonio Express you would have no idea what the debate was about.  A reader would think that the Department of Justice proposed just allowing government agencies to tell all FOIA requesters that no records existed on their requests.  No matter what you believe on the use of FOIA Exclusions, the debate should be on the facts of the issue, not strawmen that do not exist.

DOJ Responds to Grassley on Exclusions

The Department of Justice has responded to Sen. Charles Grassley with this letter concerning its proposed regulations concerning Exclusions.  The letter states that it will pull its proposed response to requesters when invoking exclusions in the Department's final FOIA regulations.  The letter also goes into detail about exclusions and their use.

My Latest LLRX Article: DOJ Regulations and Exclusions

My latest LLRX.com article is up -- I discuss the proposed DOJ Regulations and explain the difference between exemptions and exclusions.

Grassley Questions DOJ Proposed Regs

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.