Freedom of Information Act Exemptions and Exclusions


The Freedom of Information Act generally provides that any person has a right, enforceable in court, of access to federal agency records, except to the extent that such records (or portions thereof) are protected from disclosure by one of nine exemptions, or by one of three special law enforcement record exclusions.

Nine Exemptions

(b)(1): Records currently and properly classified in the interest of national security

(b)(2): Records related solely to the internal personnel rules and practices of the DoD or any of the DoD Components

(b)(3): Records protected by another law that specifically exempts the information from public release

A few examples of such statues commonly applicable to the Joint Personnel Recovery Agency (JPRA)

  • 10 U.S.C. § 130e: DoD critical infrastructure security information
  • 10 U.S.C. § 455: Maps, charts, and geodetic data
  • 10 U.S.C. § 1506(d) and (f): Debriefing of a Missing Person Returned to U.S. Control. The Period Covered is July 8, 1959, forward.
  • P. L. 102-190, 105 § 1290, 1480-1481 (formerly 50 U.S.C. § 435): Disclosure of information concerning US personnel classified as POW/MIA during the Vietnam and Korean Conflicts (“McCain Bill”)
  • P. L. No. 111-83, 123 § 2142, the “Protected National Security Documents Act of 2009” (Protected National Security Documents Act, 2009): Protection of photographs related to the treatment of individuals engaged, captured, or detained after September 11, 2001

(b)(4): Trade secrets and commercial or financial information obtained from a private source which would cause substantial competitive harm to the source if disclosed

(b)(5): Internal records that are deliberative in nature and are part of the decision making process that contain opinions and recommendations

(b)(6): Records which if released, would result in a clearly unwarranted invasion of personal privacy

(b)(7): Investigatory records or information compiled for law enforcement purposes

(b)(8): Records for the use of any agency responsible for the regulation or supervision of financial institutions

(b)(9): Records containing geological and geophysical information (including maps) concerning wells

Three Exclusions

(c)(1): Authorizes federal law enforcement agencies, under specified circumstances, to shield the very existence of records of ongoing investigations or proceedings by excluding them entirely from the FOIA's reach

(c)(2): Provides that "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 the FOIA unless the informant's status has been officially confirmed

(c)(3): Pertains only to certain law enforcement records that are maintained by the Federal Bureau of Investigation