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Homeland Security

FOIA Limits and Exemptions

Limits on FOIA Requests

While the FOIA supports disclosure of federal agency records, the law recognizes the legitimate need to restrict disclosure of some information.

The FOIA does not grant an absolute right to examine government documents; the FOIA establishes the right to request records and to receive a response to the request.

If a record cannot be released, you will be told the reason for the denial. You also have the right to appeal the denial and, if necessary, to challenge it in court.

There are certain types of information that are not available under the FOIA:

  • Tangible objects may not be requested under the FOIA.
  • Information about another individual may be requested under the FOIA, but release is subject to application of the balancing test to decide whether the privacy interest of the affected party outweighs the public interest in the release of said information.
  • Information covered under FOIA Exemptions.

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FOIA Exemptions

Exemption 1 – Protects information that is properly classified in the interest of national security pursuant to Executive Order 12958.

Exemption 2 – Protects records related solely to the internal personnel rules and practices of an agency.

Exemption 3 – Protects information exempted from release by statute.

Example of information the Department of Homeland Security may withhold using 3:  Information protected by the Critical Infrastructure Act of 2002; e.g.: information pertaining to actual, potential, or threatened interference with, attack on, compromise of, or incapacitation of critical infrastructure or protected systems by either physical or computer-based attack or other similar conduct (including the misuse of or unauthorized access to all types of communications and data transmission systems) that violates federal, state, or local law, harms interstate commerce of the United States, or threatens public health or safety

Exemption 4 – Protects trade secrets and commercial or financial information which could harm the competitive posture or business interests of a company.

Example of information the Department of Homeland Security may withhold using 4: Commercially valuable formulas or other proprietary information not customarily released to the public entity from whom the information is obtained.

Exemption 5 – Protects the integrity of the deliberative or policy-making processes within the agency by exempting from mandatory disclosure opinion, conclusions, and recommendations included within inter-agency or intra-agency memoranda or letters.

Example of information the Department of Homeland Security may withhold using 5: Draft documents and recommendations or other documents that reflect the personal opinion of the author rather than official agency position.

Exemption 6 – Protects information that would constitute a clearly unwarranted invasion of personal privacy of the individuals involved.

Example of information the Department of Homeland Security may withhold using 6: Social Security Numbers, home addresses and telephone numbers, certain identifying information regarding Department employees.

Exemption 7 – Protects records or information compiled for law enforcement purposes the release of which could reasonably be expected:

  • a. 7(A) – to interfere with enforcement proceedings.

Example of information the Department of Homeland Security may withhold using 7(A): Records pertaining to an open law enforcement investigation.

  • b. 7(B) – would deprive a person of a right to a fair trial or an impartial adjudication.

Example of information the Department of Homeland Security may withhold using 7(B): Information that could potentially contaminate a jury pool.

  • c. 7(C) – to constitute an unwarranted invasion of the personal privacy of a third party/parties (in some instances by revealing an investigative interest in them).

Example of information the Department of Homeland Security may withhold using 7(C): Identifying information of individuals associated with a law enforcement proceeding; i.e. law enforcement officers’ names, witness/interviewee identifying information.

  • d. 7(D) – to disclose the identity/identities of confidential sources.

Example of information the Department of Homeland Security may withhold using 7(D): Identifying information of confidential informants.

  • e. 7(E) – would disclose techniques and procedures for law enforcement investigations or prosecutions.

Example of information the Department of Homeland Security may withhold using 7(E): Law enforcement manuals, records pertaining to Watch Lists.

  • f. 7(F) –to endanger the life or physical safety of an individual.

Example of information the Department of Homeland Security may withhold using 7(F): Identifying information of law enforcement officers.

Exemption 8 – Protects information that is 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.

Example of information the Department of Homeland Security may withhold using 8: Exemption rarely invoked by Department of Homeland Security

Exemption 9 – Protects geological and geophysical information and data, including maps, concerning wells.

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More Information

If you are seeking answers to questions or an explanation of a policy or regulation, you must contact the specific Department program office for information. Media-related inquiries may be directed to the Department's Office of Public Affairs at 202-282-8010.

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Last Published Date: March 27, 2014
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