Examining the Freedom of Information Act — Part 1 of 3

The website www.FOIA.gov describes the Freedom of Information Act (FOIA) as the “law that gives you the right to access information from the federal government. It is often described as the law that keeps citizens in the know about their government.”
In today’s part one of a three-part series of posts, we’ll be discussing what types of information can be requested and disclosed and what information the government is prohibited from releasing. Parts two and three of this series will take a closer look at Freedom of Information Act requests for Citizenship and Immigration Services and Customs and Border Protection.
Why submit a FOIA request?
There are a number of circumstances under which clients may ask our immigration lawyers to submit FOIA requests on their behalf. Our immigration attorneys often file FOIA requests to obtain information or records that our clients no longer have or to seek a better understanding of information that various government agencies may have in their databases regarding our clients. The two government agencies Berardi Immigration Law most frequently submits FOIA requests to are USCIS and CBP. For fiscal year 2013, USCIS processed over 138,000 FOIA requests and CBP processed more than 14,600. Processing time in response to requests varies greatly depending on the type and scope of information requested.
Exemptions
According to FOIA.gov, not all records can be released under the FOIA. Congress has defined certain categories of information that the government is not required to release by virtue that the release would be harmful to governmental or private interests. These categories are called “exemptions” from disclosures. Still, even if an exemption applies, agencies may use their discretion to release information when there is no foreseeable harm in doing so and disclosure is not otherwise prohibited by law.
There are nine categories of exempt information and each is described below.
Exemption 1: Information that is classified to protect national security. The material must be properly classified under an executive order.
Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
Exemption 3: Information that is prohibited from disclosure by another federal law. Additional resources on the use of Exemption 3 can be found on the Department of Justice FOIA Resources page.
Exemption 4: Information that concerns business trade secrets or other confidential commercial or financial information.
Exemption 5: Information that concerns communications within or between agencies which are protected by legal privileges, that include but are not limited to: Attorney-Work Product Privilege, Attorney-Client Privilege, Deliberative Process Privilege, Presidential Communications Privilege.
Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.
Exemption 7: Information compiled for law enforcement purposes if one of the following harms would occur. Law enforcement information is exempt if it: 7(A). Could reasonably be expected to interfere with enforcement proceedings; 7(B). Would deprive a person of a right to a fair trial or an impartial adjudication; 7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy; 7(D). Could reasonably be expected to disclose 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.
Exemption 9: Geological information on wells.
Exclusions
Three narrow categories of law enforcement and national security records are also afforded special protection under the Freedom of Information Act. The provisions are called “exclusions,” and these exclusions include:
• Existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings;
• Existence of informant records within criminal law enforcement agencies when the informant’s status has not been officially confirmed; and
• Within the FBI, protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified.
For more information regarding the Freedom of Information Act or to schedule a consultation with one of our immigration attorneys, please visit www.berardiimmigrationlaw.com/contact-immigration-lawyers.