Freedom of Information Act Exemptions


Note: OUO designation does not automatically exempt a document from public release under FOIA; the document must be reviewed prior to release.

The FOIA requires any record of information in the federal government’s possession to be publicly released upon request unless the information in the record falls under one of nine FOIA exemptions.

When information is identified as OUO, the applicable exemption number and category name must be identified. There are nine FOIA exemptions, but only exemptions 3-7 and 9 are used at SNL. Refer to IT017, Official Use Only Information Policy for descriptions of FOIA exemptions.

Exemption 1-National Security Information

Never used for OUO, only used for classified information.

Do not use OUO Exemption 1. If a document is classified or potentially classified, seek Derivative Classifier (DC) or Classification Department assistance, and where applicable, follow requirements for handling classified information. (See SS002, Identifying Classified Information Policy and SS003, Classified Matter Protection and Control Policy).

Exemption 2-Circumvention of Statute

As of June 6, 2011, DOE mandates that Exemption 2 is no longer applicable to OUO information. For identified topics in classification guides (formerly Exemption 2), use Exemption 7—Law Enforcement.

Do not use OUO Exemption 2. This exemption is no longer available for any purpose at SNL. Courts have limited this exemption to protection of federal government human resources records. Circumvention of Statute is no longer a valid OUO category or Freedom of Information Act (FOIA) exemption. Exemption 7—Law Enforcement, may be a suitable designation to protect information having security-related sensitivity. If further details are needed in a particular instance, consult a Derivative Classifier (DC), the SNL Classification Department, or one of the contacts associated with IT017, Official Use Only Information Policy.

Exemption 3- Statutory Exemption

Information whose disclosure is specifically protected by law and is not otherwise controlled.

Use Exemption 3 for Export Controlled Information or other material protected from disclosure by statute or other legal authority. If further details are needed in a particular instance, consult a Derivative Classifier (DC), the SNL Classification Department, an SNL Export Control subject matter expert (SME), or one of the contacts associated with IT017, Official Use Only Information Policy.

Exemption 4-Commercial/Proprietary

Trade secrets, commercial, or financial information that, if released, could impair the government’s ability to obtain information in the future. 

Use Exemption 4 to protect proprietary or commercial information appearing in government-owned records. At SNL, this exemption usually applies to third party proprietary information.

Exemption 5- Privileged Information

Interagency or intra-agency memos or letters not available by law to a party unless the party is in litigation with the agency.

Use Exemption 5 to protect pre-decisional information. This is often referred to at SNL as deliberative process information.

Exemption 6-Personal Privacy Information

Information that could cause an individual personal distress or embarrassment, or expose them to identity theft.

Use Exemption 6 to protect personal information. For more details about privacy requirements at SNL, refer to IT023, Personally Identifiable Information (PII) Policy.

Exemption 7-Law Enforcement

Information that, if released, could endanger life or physical safety or disclose techniques and procedures of law enforcement investigations or prosecutions.

Use Exemption 7 for unclassified information that has sensitivity relating to security or national security programs at SNL. Be aware that an association with law enforcement investigations and prosecutions may not seem immediately evident. Nevertheless, courts have recommended Exemption 7 as a possible substitute for what was formerly protected by Exemption 2—Circumvention of Statute.

Exemption 8-Financial Institutions

Evaluation of a financial institution’s stability.

Do not use Exemption 8 at SNL.

Exemption 9-Wells

Geological and geophysical information and data, resource maps, and new drilling techniques.

Use of Exemption 9 at SNL is very rare. Consult one of the contacts associated with IT017

Official Use Only Information Policy if Exemption 9 may be pertinent in a particular instance.