FOIA Exemptions and Exclusions

EXEMPTIONS

Exemption 1: Protects information that is properly classified in the interest of national security pursuant to Executive Order 13526.

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

• Exemption rarely invoked by the U.S. Geological Survey

Exemption 3: Protects information exempted from release by statute.

         Examples of information the U.S Geological Survey may withhold using Exemption 3 include:  

• 15 U.S.C. § 3710a - Cooperative Research and Development Agreements - research results or information obtained in conduct of research or as a result of activities under the CRADA (including trade secrets or confidential commercial or financial information) for up to five years from the date of their development

• 16 U.S.C. § 4301 - Federal Cave Resources Protection Act - information concerning the specific location of any significant cave on Federal lands

• 16 U.S.C. § 5937 - National Park Service Omnibus Management Act - information concerning the nature and specific location of a National Park System resource which is endangered, threatened, rare, or commercially valuable, of mineral or palentological objects within units of the National Park System

• 41 U.S.C. § 4702 - proposals not set forth or incorporated by reference into an awarded contract

• 41 U.S.C. § 2102 - contractor bid or proposal information or source selection information before the award of a procurement contract to which the information relates (applies in post-award situations when the information may be used again in future procurements)

Exemption 4: Protects trade secrets and commercial or financial information obtained from a person which is privileged or confidential.

          Examples of information the U.S. Geological Survey may withhold using Exemption 4 include:

• *Commercially valuable formulas or other proprietary information not customarily released to the public entity from whom the information is obtained

• *Line Item pricing

• *Proposals

• *Identities of sub-contractors

        *Following the DOI regulation and policy, we coordinate an Executive Order 12600 Submitter Notice prior to invoking

          Exemption 4.  This process may delay the response time or lead to a Reverse FOIA lawsuit.  We notify FOIA requesters

          of our activities involving the submitter.

Exemption 5: Protects information that concerns communications within (intra-) or between (inter-) agencies; or between USGS and a consultant, that are protected by legal privileges, that include but are not limited to:

• Attorney-Work Product Privilege
  
   
• Attorney-Client Privilege
  
   
• Deliberative Process Privilege ( opinions, conclusions, recommendations).  Here are a few examples of the types of information that we tend to withhold under Exemption 5:

  • Draft documents (press releases; publications; articles, reports)

  • Peer review comments and colleague review comments

  • Preliminary scientifically analyzed data or scientifically analyzed data that is not used in a publication/report

  • Models and preliminary data derived from models that are not used in a publication/report

  • Portions of emails discussing preliminary results; theories; hypotheses; thoughts, ideas, or suggestions on items to test or study

• Presidential Communications Privilege
  
   
• [Government] Commercial Information Privilege (e.g. USGS conference call numbers and conference call security codes)

Exemption 6: Protects information that would constitute a clearly unwarranted invasion of personal privacy of the individual(s) involved.

Examples of information the U.S. Geological Survey may withhold using Exemption 6 include:

• Social Security Numbers

• Home Addresses

• Home and personal cellular phone numbers

• Personal email addresses

• Family and medical information

• Latitude and longitude of private residences

• Credit Card Numbers

• Identifying information about study participants/volunteers

• Dates of birth

• Performance and disciplinary information

Exemption 7: Protects records or information compiled for law enforcement purposes if one of the following harms would occur.  Exemption 7 is not limited solely to law enforcement information, it also applies to administrative (i.e. regulatory) proceedings.  We may invoke one or more of the following subparagraphs:

• 7(A): interfere with enforcement proceedings

  • Typically we invoke this exemption if we have an active and open investigation or inquiry

• 7(B): Would deprive a person of a right to a fair trial or an impartial adjudication

  • Information that could potentially contaminate a jury pool

• 7(C): Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a third party/parties

  • Typically we invoke this exemption on the identifying information of subjects, victims, complainants and witnesses in an investigation or an inquiry

  • Names and identifying information of investigators (typically in Office of Inspector General investigations; Scientific Misconduct or Scientific Integrity inquiries

• 7(D): Protect the identity of a confidential source
• 7(E): Would disclose techniques and procedures for law enforcement investigations or prosecutions
• 7(F): Could reasonably be expected to endanger the life or physical safety of any individual

Exemption 8: Information that concerns the supervision of financial institutions. This exemption rarely invoked by the U.S. Geological Survey.

Exemption 9: Geological and geophysical information and data, including maps, concerning wells (oil, gas and water).  See the AquAlliance v. U.S. Bureau of Reclamation, No. 14-1018, 2017 U.S. App. LEXIS 8174 (D.D.C.  May 9, 2017).

EXCLUSIONS

In amending the Freedom of Information Act in 1986, Congress created a novel mechanism for protecting certain especially sensitive law enforcement matters, under subsection (c) of the Act. These three special protection provisions, referred to as record "exclusions," are reserved for certain specified circumstances.  The record exclusions expressly authorize federal law enforcement agencies, under these exceptional circumstances, to "treat the records as not subject to the requirements of the FOIA." For more information regarding FOIA Statutory Exclusions, visit http://www.justice.gov/oip/foiapost/2012foiapost9.html

The (c)(1) Exclusion: Whenever a request is made which involves access to records described in subsection (b)(7)(A) and (A) the investigation or proceeding involves a possible violation of criminal law; and (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

The (c)(2) Exclusion: Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to the requirements of [the FOIA] unless the informant's status as an informant has been officially confirmed.

The (c)(3) Exclusion: 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].