Three New FOIA Exclusions: When Agencies Can Legally Lie, And Why

Here’s the quick-and-dirty on three statutory exclusions recently added by Congress to national FOIA policy, via guidance issued Friday by the Department of Justice.

The three exclusions target circumstances where even acknowledging the existence of certain records can threaten law enforcement or national security interests. In these three cases, federal law enforcement agencies can deny the existence of records you may be trying to access with a FOIA request. They apply to:

  1.  Instances where the subject of a criminal law enforcement investigation might not know the agency has files relating to them or their activities, and alerting them to the existence of such data could compromise with proceedings

  2.  Preventing the release of records to protect against the identification of confidential or unacknowledged informants related to criminal law enforcement

  3.  Within the FBI, protecting classified records whose release could disclose foreign intelligence, counterintelligence, or international terrorism records to the detriment of national security

An important primer on the difference between FOIA exemptions and FOIA exclusions
comes via OMBWatch:


Certain types of information are exempted from mandatory disclosure, like classified national security information or information that is deemed sensitive with regard to individual privacy. When agencies claim these exemptions, they have to notify both the requester and openly report their reason for withholding information.


Agencies may also withhold certain information by using FOIA’s law enforcement exclusions. In certain circumstances, agencies may withhold information related to pending criminal investigations, informants, and classified foreign intelligence – and may do so without notifying the requester. For instance, in order to conceal the existence of an ongoing investigation, an agency can state that it has no information relevant to the request. Using an exemption, rather than an exclusion, in the same situation would require the agency to explain why it is withholding the records, thus revealing the essential fact of the investigation’s existence.

So if you’re CERTAIN something exists but you’re hitting a wall filing FOIA requests, you could be right; but the stakes could be too high.

Are these exclusions fair? Are there instances where disclosure is more valuable to the public interest than suppression? Share your thoughts in the comments.